While I subscribe to the majority’s reasoning in invalidating the taxes imposed pursuant to section 184 of the Tax Law, I would annul the commission’s determination in its entirety. In my view, the capital stock tax assessment under section 183 of the Tax Law, dictating an additional burden on petitioner of approximately $12.5 million in taxes and interest, was also improper.
This case is controlled by Matter of Consolidated Edison Co. of N. Y. v State Tax Comm. of State of N. Y. (24 NY2d 114) where, in construing the franchise tax under section 186 of the Tax Law, the commission’s long-standing policy of not taxing, as capital employed in the State, insurance recoveries and the proceeds from certain sales, was seen as creating a presumption of nontaxability. There the court refused to invoke the doctrine of estoppel against the State but went on to declare (p 119): “we are of the opinion that the failure to tax the type of transactions here involved for 53 years should not be viewed as meaningless, but rather such inaction should create a presumption in favor of the *75taxpayer which can only be rebutted by a clear manifestation of legislative intent to the contrary”.
Petitioner has been filing capital stock tax reports under section 183 and its predecessors since 1888. In 1909, in an opinion apparently of continuing validity, the Attorney-General stated that capital loaned for use in business in other States was not employed in any business in the State of New York and thus could not be taxed under the predecessor to section 183 (1909 Opns Atty Gen 357). And in 1923, the last time petitioner’s capital stock tax report was audited, the commission found no error when the company failed to include, as capital employed in business within the State, transactions of the very type now found taxable. Without contradiction, petitioner alleges that for half a century it has faithfully adhered to the characterization accepted at the time of the 1923 audit. That being so, Matter of Consolidated Edison (supra) makes it incumbent upon the commission to demonstrate a clearly manifested legislative intent that petitioner’s advances, interest and receivables should be taxed under section 183. No such proof has been offered; in fact, the Legislature has seen fit to leave undisturbed the applicable sections of the statute even though, over the years, section 183 has been frequently revised. For the same reasons, the completely new depiction of petitioner as a “finance” company to bring the advances arguably within the ambit of section 183, though a tribute to the indefatigable zeal with which the search for additional taxes is being pursued, should not be entertained.
Respondent’s suggestion that Matter of National Elevator Ind. v New York State Tax Comm. (49 NY2d 538) negates this presumption in favor of the taxpayer is not at all convincing. National Elevator found the presumption inapplicable when the commission was attempting to change a ruling prospectively (supra, at p 548; Metromedia, Inc. v State Tax Comm. of State of N. Y., 75 AD2d 341, 342). Here, a retroactive change in interpretation, not mandated by the statute on its face, and one generating an enormous tax liability, is involved.
Nor can the commission’s unilateral decision to tax these transactions for the first time be justified as the correction *76of an “erroneous” statutory interpretation. More often than not, in those instances where the commission has altered its position, it was prompted to do so by recent developments such as a new judicial interpretation (Matter of Inter-County Tit. Guar. & Mtge. Co. v State Tax Comm., 28 NY2d 179) or a negotiated increase in the taxpayer’s Federal tax assessment (Matter of Petrie Stores Corp. v Tully, 80 AD2d 328). On those occasions when there apparently was no external impetus for the commission’s new interpretation, either a comparatively brief period of time had elapsed between the conflicting rulings or the change did not result in an obvious injustice (see Matter of Liberty Coaches v State Tax Comm., 79 AD2d 775; Matter of Sachs N. Y. v Tully, 79 AD2d 1056). Furthermore, in these instances, the transactions at issue were indisputably taxable under the applicable statutory language.
Given the long history of the commission’s undeviating interpretation of this statute and petitioner’s unchallenged compliance, allowing the commission to retroactively alter that interpretation without first affording petitioner an opportunity to restructure its affairs so as to minimize the immense tax consequences is, in my judgment, patently unfair.
Kane, J. P., and Main, J., concur with Mikoll, J.; Yesawich, Jr., J., concurs in part and dissents in part in an opinion; Levine, J., not taking part.
Determination modified by annulling so much thereof as imposed a gross earnings tax on income received from out-of-State obligors, and, as so modified, confirmed, without costs.