People ex rel. Dufour v. Wells

85 A.D. 440, 83 N.Y.S. 387, 1903 N.Y. App. Div. LEXIS 2127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinion

Ingraham, J.:

The relators have obtained a writ of certiorari to review an assessment by which there was assessed in the firm name of Dufour & Co., who 'áre residents of Switzerland, and as partners doing business in the city of New York, as the value of the personal estate subject to taxation $25,000. The petition alleges that the board of taxes and assessments of the city of 'New York, entered upon the assessment roll of the county of New York for the year 1902 the following- assessment:

That the relators constitute the copartnership of Dufour & Go.; that the petitioners, “ as such firm of Dufour & Go. and as well individually, claim to be aggrieved by the action of the said Commissioners of Taxes and Assessments as such Board of Taxes and' Assessments, in and by reason of their illegally and without jurisdiction assessing as aforesaid the capital invested in business as personal property in the State of Yew York by your petitioners January 13, 1902; ” that “ such illegality was the assessment as aforesaid of the value of capital invested in business as personal property in the State of Yew York, by your petitioners to, against, and in the name of Dufour & Co., when by the tax law of the State of Yew York the assessment of the capital so invested could only be made severally to the said Christopher Tobler and Anton Dufour as their taxable- capital so invested as aforesaid might appear and be' on January 13, 1902.”

The commissioners of taxes and assessments moved to quash this writ, and it is conceded by the relators that if the commissioners had authority to make “ in and to the partnership name of Dufour & Go. any assessment of the capital invested in business as personal property in tins State by Anton Dufour and Christopher Tobler severally,, and the assessment roll is a compliance with the tax law, the motion to quash the writ should have been granted.”

The sole question presented on this appeal, therefore, is whether the assessment is void by reason of the failure of the tax commissioners to insert in the assessment roll the individual names of the copartners, and assess to each copartner separately the value of the property that each copartner has invested in business in this State. The relators are copartners, residents of Switzerland. They are carrying on business in this State, and concededly have as a firm invested in such business in this State the sum of $25,000. It is the copartnership that has that sum invested, not the individual members of the copartnership, and it would be impossible for the tax commissioners or the relators themselves to tell how much of that $25,000 thus invested in this State belonged to the individual copartners. That necessarily would depend upon the interest that each partner respectively had in the assets of the firm, and would require an accounting between the members of the firm before the interest of each copartner in the assets of the firm, a portion of which was invested in business in this State, could' be determined. These relators, therefore, as copartners, having a sum' of money invested in this State, all members of the copartnership being non-residents, the tax commissioners were necessarily required to assess to them as copartners jointly the value of the copartnership property which was invested in this State.

The only remaining question is whether, to make a valid assessment, it was necessary to insert in the assessment roll the individual names of the copartners, or whether it was sufficient to assess the copartners under the firm name with which they did business. An assessment against a copartnership which contained resident as well as non-resident members, would be governed by an entirely different rule, for there the non-resident could only be assessed the amount of his interest in the copartnership which was invested in business in this State. As to the resident partners, they would be assessed upon the value of all their personal property situated or owned' within this State. But where a firm, consisting entirely of nonresidents, doing business within this State, had invested a portion of their capital here, the taxing officers have no jurisdiction over the-persons of the members of the firm, and acquire a right to tax only by virtue of the jurisdiction which the State has over property within its boundaries; and the power of taxation is, therefore, limited to the amount of the' property of the copartnership that is actually located within this State.

We think an examination of the statutes under which this assessment was made justified the taxing officers in adopting the method adopted in this case, and that the tax is not illegal. By the Tax Law (Laws of 1896, chap. .908) there is prescribed the methods of the assessment of property for taxation, and the imposition and collection of the taxes. Section 3 provides that all personal property-situated or owned within this State is taxable, unless exempt from taxation by law. Section 7 provides : “ Nonresidents of the State ■doing business in the State, either as principals or partners, shall be taxed on the capital invested in such business as personal property .at the place where such business is carried on, to the same extent as if they were residents of the State.” It is under this section that the assessment in question was made. Non-residents doing business .as partners are to be taxed on the capital invested in business in this ■State as personal property at the place where such business is carried on, and they are to be taxed to the same extent as if they were residents of the State. There is nothing in this section that prescribes that the provisions as to the methods of assessment of partners doing business in this State shall be the same as individual i’esidents. The taxation is to be to the same extent as if they were 2,esidents, i. e., that taxes imposed upon property invested in business in this State are to be the same as that imposed upon residents. The personal property of residents is to be assessed and taxed in the tax district where they reside, no matter where the personal property owned by such resident is. (§ 8.) Article 2 of the act provides the method of making the assessment. Section 20 (as amd. by Laws of 1900, chap. 512) provides that the assessors in each tax district shall annually ascertain by diligent inquiry all the property and the names of all the persons taxable therein. (See N. Y. charter [Laws of 1897, chap. 378], §§ 889, 892, as amd. by Laws of 1901, chap. 466.) Section 21 (as.amd. by Laws of 1899, chap. 712, and Laws of 1901, chap. 159) provides for the preparation of the assessment roll. The assessors in each tax district are to prepare “ an assessment roll containing six separate columns, and shall, according to the best information in their power, set down: 1. In the first column the names of all the taxable persons in the tax district. * * 4. In the fourth column the full value of all the taxable personal property owned by each person respectively after deducting the just debts owing by him.”

Strictly construed there would appear to be no provision in this section which applies to a copartnership, all of the members of which are non-residents. The assessors are to set down in the first column the names of all taxable persons in the tax district. Now, neither of these relators was a person taxable within the city of New York. The taxing officers had no jurisdiction over either of these persons and could assess no tax upon either of them. There was certain property within this district belonging to the relators which was subject to taxation, but neither of the relators was a taxable person in this tax district. The provision of section 21 must-be read in connection with section 7 of the act to which attention has been called, and, undoubtedly, the taxing officers were hound to-, ascertain the non-resident firm or copartnership who had property invested in business in this State and assess such property for taxation, and they were bound in some way to designate the partners-owning the property thus subject to taxation and then assess the value of the property so invested which was subject to taxation ; but the taxation was against the property over which the State had jurisdiction, and not against the individual members of the firm who owned the property that was here invested and which was subject to taxation. In City of New York v. McLean (170 N. Y. 374) the court says: “ It is a principle well established by the decisions in this State and elsewhere that assessors have no jurisdiction of the person of one who does not reside within the district to which their jurisdiction extends.” The tax, therefore, is one against the property and not against the individual; and I can find no provision in the Tax Law which requires the names of the individual copartners who-are non-residents and who have money invested as a copartnership in this State to-be inserted in the tax roll. Where-a resident of this State is assessed for taxation, it -is essential that his-name and the amount of his property assessed for taxation should’ be entered in the-tax roll; but where all members of a copartnership are non-residents, and the copartnership has property invested in business in this State, it would appear that the statute is complied with where the copartnership is designated • by the name under which it does business, and the amount of the copartnership' property invested is assessed as the property upon which the tax is ' imposed.

It follows that the order appealed from is reversed, with ten dollars costs and disbursements, and the writ of certiorari quashed, with costs.

Van Brunt, P. J., McLaughlin and Hatch, jj., concurred; . O’Brien, J., dissented for the reasons stated in the opinion of the-learned .judge at Special Term.

Order reversed, with ten dollars costs and disbursements, and writ quashed, with costs.

The following is. the opinion of Mr. Justice Bisohoff, delivered at Special Term:

Bisohoff, J.:

The relators are non-resident copartners doing business as Dufour .& Company, and have obtained a writ of certiorari to review an assessment for personal taxes, the ground of their petition being that the assessment has been made against “Dufour & Co.” the firm, instead of against the partners as individuals. Ho objection to the assessment having been presented to the commissioners, the certiorari proceedings are maintainable only upon the theory that the assessment was void, since, if the commissioners acted within their jurisdiction, the relators’ failure to present their objections first to them would defeat the proceedings. (People ex rel. American Thread Co. v. Feitner, 30 Misc. Rep. 641; People ex rel. Powder Co. v. Feitner, 41 App. Div. 544.) The question of the validity of .-an assessment in this form is presented by the respondents’ motion to quash the writ. While the tax upon the' personal property of ■non-residents, which is employed in their business within the State, Is deemed to be a tax upon the property itself rather than against the -individual (City of New York v. McLean, 170 N. Y. 374), the assessment is regulated by the same provisions of law which apply to personal taxes upon the property of residents. (Tax Law [Laws of 1896, chap. 908], § 7.) The statute requires that the assessment shall be made in such manner as to describe the “ person ” taxed, and the value of the property of that “ person,” after deducting all the debts owing by him. (Tax Law, § 21.) In no possible aspect is a partnership a “ person ” nor is the aggregate property employed by the partners in the business property of a “ person,” nor is the firm’s property the measure of each partner’s interest for taxation. The property of each individual, lessened by his debts, is the basis of the tax. The law so provides, for the benefit of the taxpayer, and a strict compliance with the terms of the law in the manner of making •the assessments is essential to the legality of the assessment. (Cooley 'Taxn. 259, 260, 280.) Unless the statute provides to the contrary, .an assessment for taxation of partnership property must be made in the names of the individuals composing the firm. (Id. 271.) -This, assessment cannot he held to be irregular merely, and within the jurisdiction of the commissioners to make, upon resort to a construction of the statute which would render its provisions for the laying of assessments not mandatory, but directory. The rule stated by the text writers and supported by authority renders the validity of the. assessment dependent upon compliance with - the law in the initial steps which the law details, and there'was certainly no compliance, here. (Westfall v. Preston, 49 N. Y. 349; May v. Traphagen, 139 id. 478; Sanders v. Downs, 141 id. 422.) But one scheme of assessment is provided by section 21 of the Tax Law, whether the. ■ tax is upon residents or non-résidents, and there is no' authority for-taxing foreign partnerships, except in accordance with this section. Section 7, which refers to the power to tax non-residents “ doing-business in the State, either as principals or partners,” is not a regulation of the steps to be taken for the assessment, and cannot possibly be given the meaning that non-residents may be taxed as partners-while residents may not. Unless section 21 is to be complied with,, as governing the method of making assessments in all cases, a firm composed of both residents and non-residents could be taxed upon the firm’s. capital, and the personal tax enforced by resort to the. personal liability of one resident partner, a result which is certainly not intended by the Tax Law.

Motion to quash writ denied, with ten dollars costs.