Burrell v. Lynch

274 A.D. 1083, 85 N.Y.S.2d 705, 1949 N.Y. App. Div. LEXIS 6154

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1949
• Status: Published

Opinion

Motion to resettle an order. A determination by the State Tax Commission that the Burrell Investment Trust was subject to a franchise tax in the sum of $23,086.13 was annulled by a decision of this court. The order entered on this decision directed the commission to refund the amount assessed with interest. The Attorney-General contends that the court has no power to make either directive. The State Tax Commission is a statutory body and possesses only those powers given to it by statute. Under the statute it may correct an erroneous or illegal assessment of taxes and direct the Comptroller to issue a refund without interest. (Tax Law, § 214.) It has no power to direct the payment of interest. Upon a review by certiorari under the Tax Law this court has the power in a proper case to confirm or annul the determination of the commission, but it may not compel the commission to perform an act beyond its statutory authority, such as the payment of interest upon a refund. It may, however, direct the commission to issue an order upon the Comptroller for the payment of a refund without interest, for such an order is within the statutory authority of the commission. Motion for resettlement granted, without costs, and the order herein may be resettled upon two days notice before any Justice of this court in conformity with the foregoing. Foster, P. J., Brewster, Deyo, Santry and Bergan, JJ., concur. [See ante, pp. 347, 1017.]