People ex rel. International Elevating Co. v. Miller

Determination confirmed, with $50 costs and disbursements.

(dissenting). In People ex rel. A. J. Johnson Company v. Roberts, as Comptroller, 159 N. Y. 70 , 53 N. E. 685 , 45 L. R. A. 126 , and People ex rel. Victor Koechl & Co. v. Morgan, as Comptroller, 96 App. Div. 110 , 88 N. Y. Supp. 1066 , affirmed on opinion below 183 N. Y. 574 , 76 N. E. 1105 , it was held that the good will of a foreign corporation, when constituting a part of its capital employed within this state, is táxable’under section 182 of the tax law (Laws 1896, p. 856, c. 9Ú8). In both of those cases, however, it appeared that the good will existed and had a value within this state. In this case a part of the capital of the relator Was issued in the year 1894, for the good will of different companies or individuals, who sold out to the relator when the latter was organized. No other fact appears in reference thereto. Non constat none of those companies or individuals ever did any business within the state of New York. It does not appear that any of this good will now represents or ever represented any taxable capital. The relator is only taxable for “capital employed by it within this state.” Tax Law, § 182. The greater part of the tax herein was levied by the Comptroller on the good will of the relator, which, so far as the evidence discloses, constitutes no part of its capital thus employed, and to that extent I think the, determination of the Comptroller was erroneous.