I respectfully dissent.
In my opinion the challenged statutes are unconstitutional and, accordingly, the judgment of Special Term should be reversed. While agreeing with Special Term that the Legislature is vested with the power to impose a sales tax and that it has broad discretion in establishing the manner in which the tax is to be collected (Gautier v Ditmar, 204 NY 20), I would point out initially that its authority in this area is not unlimited, as for example, it cannot ignore constitutional restrictions thereon (see Shapiro v City of New York, 32 NY2d 96).
Generally, the sales tax is included under the category of excise taxes which may be "imposed on importation, consumption, manufacture and sale of certain commoditites, privileges, particular business transactions, vocations, occupations, and the like” (Thomas v United States, 192 US 363, 370). The common thread running through all of these various imposts is the presence of a taxable event or res to which and upon the happening of which the tax attaches. (See, generally, Harvester Co. v Department of Treasury, 322 US 340; Steward Mach. Co. v Davis, 301 US 548.) With regard to the sales tax, the taxable event is quite logically a retail sale (Tax Law, §§ 1105, 1110), and the incidence of the tax was plainly intended to fall upon the purchaser and not the retailer (Tax Law, § 1133, subd [a]). Such being the case, the fundamental question presented for our determination is whether or not respondent may, pursuant to section 1137-A of the Tax Law, properly collect the tax from petitioners and others similarly situated for sales which have not and may not ever take place.
It is my view that respondent is without authority to take such action. To hold otherwise is to force petitioners to reach into their own pockets to pay the tax for at least the period March 20 through March 31, there having occurred no taxable event, i.e., actual sales, upon which the tax could be levied or collected (cf. Matter of Komp v State Tax Comm., 56 Misc 2d 824), and this would constitute nothing less than the confiscation of petitioners’ property without just compensation and an obvious denial of due process. As such, the tax is constitution*461ally prohibited and cannot be sustained (Shapiro v City of New York, supra).
Cases relied upon by Special Term and the majority as being supportive of the challenged enactments are clearly inapposite. The "pay-as-you-go” procedures for the collection of estimated income taxes, which have been judicially approved (Erwin v Cranquist, 253 F2d 26, cert den 356 US 960; Jacobs v Gromatsky, 494 F2d 513, cert den 419 US 868; Walker v United States, 240 F2d 601, cert den 354 US 939) are not analogous to the estimated sales tax. The estimated income tax must be paid "as income is earned” (Beacham v Commissioner of Internal Revenue, 28 USTC 598, 600, affd 255 F2d 103) by those who are "in the process of earning or deriving income” (Erwin v Cranquist, supra, p 27). Here, respondent seeks to compel petitioners to pay taxes on nonexistent sales which, as noted above, may never occur, and the tax might more appropriately be labeled a "pay-whether-you-later-go-or-not-tax”.
On this same issue, the majority’s reliance upon provisions of the Federal Tax Code and State Tax Law providing for the payment of estimated income taxes on June 15 for the period ending June 30 and on September 15 for the period ending September 30 (Internal Revenue Code of 1954 [US Code, tit 26, § 6153]; Tax Law, § 656) is unconvincing. An examination of the Internal Revenue Code reveals that taxpayers are entitled to file one amended declaration of estimated income tax liability for each interval between installment payments (US Code, tit 26, § 6015, subd [e]; § 6073, subd [c]) and amended declarations are also permitted by the State (Tax Law, § 656, subd [c]). Accordingly, by the proper implementation of available procedures, a taxpayer need never pay an estimated income tax upon moneys which are not yet earned and may never be earned. In contrast, an error of greater than 10% by petitioners in estimating their sales tax liability for the period in question here renders them subject to the payment of interest plus penalties (Tax Law, § 1145), and the situation cannot be rectified by the filing of an amended declaration.
Similarly, additional analogies drawn by respondent in support of the tax are likewise unpersuasive. For example, the gasoline tax at issue in Pierce Oil Corp. v Hopkins (264 US 137) involved the collection of the tax by gasoline dealers and the subsequent pay over of the amount accrued each month to the taxing officials. Also, the various requirements for with*462holding moneys from amounts already earned to satisfy a tax liability (see, e.g., Brushabler v Union Pac. R.R., 240 US 1) are readily distinguishable from the instant situation.
In sum, no authority has been presented wherein is approved the mandatory prepayment of a tax based upon the expected later happening of a taxable event. Consequently, even assuming arguendo that petitioners’ position is at least akin to that of a taxpayer, a proposition without supporting precedent under the circumstances of this case where there is a conceded lack of a taxable event or res, nonetheless the challenged statutes still do not pass constitutional muster, and they should be declared null and void.
Lastly, it must be recognized that the avowed purpose of the statutes and the reason for their enactment, i.e., the easing of the State’s fiscal situation annually at the close of its fiscal year on March 31, is no justification for the estimated sales tax. If the State is unable to keep its expenditures within the limits of its receipts, corrective action is undoubtedly necessary, but the situation does not warrant the annual extraction from petitioners and other retailers of what is actually an interest free loan under the guise of the tax. Moreover, condoning such unconscionable legislation is merely to invite an estimated income tax structure whereby, for example, income tax payments would be due in 1977 for moneys the citizenry will hopefully earn in 1978.
The judgment of Special Term should be reversed.
Koreman, P. J., and Sweeney, J., concur with Greenblott, J.; Main, J., dissents and votes to reverse in an opinion, Larkin, J., not taking part.
Judgment affirmed, without costs.