Smadbeck v. State Tax Commission — 33 N.Y.2d 930

Majority

p. 930

In the Matter of Louis Smadbeck, Jr. et al., Appellants, v. State Tax Commission, Respondent.

Argued November 19, 1973;

decided December 28, 1973.

p. 931

Eugene P. Souther and James C. Quigley for appellants.

Louis J. Lefkowitz, Attorney-General (Vincent P. Molineauoc and Ruth Kessler Toeh of counsel), for respondent.

Order reversed, with costs, the determination of the State Tax Commission annulled and the matter remitted to the commission for further proceedings in accordance with the following memorandum: The legislative history of the 1938 amendment to section 209 of the Tax Law (L. 1938, ch. 541, § 4) makes it clear that the deletion of the phrase “by a foreign corporation ” was not intended to subject domestic trusts merely holding real property to the corporate franchise tax for the first time but was rather, a change of form alone. (See Tax Law, § 209, as amd. by L. 1938, ch. 541, § 4, and by L. 1969, ch. 1072, § 2 ; Graves, Review of 1938 Tax Legislation, 10 N. Y. State Bar Assn. Bulletin 121, 123; N. Y. Legis. Doc., 1939, No. 11, p. 57.)

p. 932

Accordingly, the order of the Appellate Division should be reversed and the determination of the State Tax Commission annulled, with costs, and the matter remitted to the State Tax Commission for further proceedings in accordance with this memorandum.

Concur: Chief Judge Fuld and Judges Bubke, Bbbitel, Jasen, Gabeielli, Jones and Wachtleb.