People ex rel. Yellow Pine Co. v. Barker

Patterson, J.:

This appeal is from an order made at the Special Term dismissing a writ of certiorari- which was sued out by. the relator to review the action of the respondents, commissioners of taxes and assessments of the city of New York, in fixing the assessed valuation of the relator’s property for the purposes of taxation for the year 1896. The relator, is a corporation organized under the laws' of the State of New Jersey, but does business in the city of New York, and has capital 'or property" invested in its business in the State of New York. The commissioners determined, as appears by their return, that the total amount invested by the relator in' the State was the sum of $689,393; that this aggregate amount was made up of items contained in a statement submitted to them by the relator, and of an additional amount of $222,014 which had not been reported by the relator as among its taxable assets. This latter item represents credits and bills receivable, due to the relator for lumber or merchandise sold by it in the course of the transaction of its business in the State of New. York. The only question arising on this appeal is as to the correctness of the action of the commissioners in including the item referred to, in the assessed value of the relator’s property for the purposes of taxation.

Under chapter 3'T of the Laws of 1855, foreign corporations are to be assessed and taxed on all sums invested in any manner in business in this State, the same as if they were residents of the State. It is well settled that the power to tax property of non-residents extends only to such property as is situated within the State exercising the taxing power. (N. Y., Lake Erie & Western R. R. v. Penn., 153 U. S. 628; Hoyt v. Comrs. of Taxes, 23 N. Y. 224.) But as to all such property so within the State, the power to tax is ample. The act of 1855 reaches all sums belonging to foreign corporations invested vn any manner in the State. The manner or form of the investment is entirely immaterial. The test is: Is the property, in whatever shape it may be, employed in the business of the corporation in this State % Is it an asset within this State ? Is it something upon which the corporation is doing business in this State ? Does it remain for the purposes of the business of the corporation within this State 1 If it does, whether it is in the shape of a promissory note or a book credit,/ or in any other form, it is as substantially invested for the purposes o.f business as if it were tangible property, such as goods or merchandise of any description. It is entirely true that intangible property, choses in action and debts, as a general rule1, áre regarded by a fiction of law as having their slims at the place of residence of the creditor. To them the maxim móbilia personam sequuntur applies ordinarily, but those things constituting property which are used for the purposes of trade or business in a particular locality, for all purposes of that trade or business have a situs where they are so used. A banker engaged in business in the city of New York, but residing in the State of New Jersey, nevertheless has all the assets of his business, whether they consist of credits or of tangible securities, in the city of New York. The statute referred to covers the case of property . or sums used in the actual conduct of business within the territory of the State. If promissory notes are physically here, they have a ■situs here for all the purposes of business. They are nothing but evidence of indebtedness. Book accounts which merely show the particular status of certain assets of a business are records of the then present condition of so much of the sum used or invested' ■ in the business as constitutes the items of those accounts. Any other view of such accounts would permit not only, of the evasion of taxation, but of the separation of a going business (which must be considered in its entirety) into component parts and ■of taking out some of the assets for one special' purpose, although they are retained for all the general purposes of business. These ■credits enter into the general business of the corporation transacted in the State of New York. It is not claimed that they do-not constitute active factors in the transaction of that business, but it is only through the application of a fiction of law that they are sought to be removed from the operation of the tax law of the State.

There is nothing decided in the Thurber, Whyland Case (141 N. Y. 122) nor in the Hecker-Jones-Jewell Milling Company Case (147 id. 31) which affects the question now before the court. That question is simply. whether or not, where, merchandise which, if it were in specie within the Stafe, would be subject to taxation, has been sold upon credit in the State, and that credit has not expired,- the amount of the merchandise thus sold and for which the credit is given in books kept in the State, -can be said to be removed from the State when it enters into the general business conducted within the State. In our judgment-, it is merely a transformation from one form to another of a sum invested in the State employed in the current business of the corporation in the State, and it is not removed beyond the jurisdiction of the State as so much withdrawn from investment in business in the State.

The action of the commissioners was right, and the order appealed froni should be affirmed, with costs.

Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred; Ingraham, J., dissented.