Austin v. Hudson River Telephone Co. — 56 N.Y. St. Rep. 79

Majority

p. 79

David E. Austin, as Receiver of Taxes, Resp’t, v. Hudson River Telephone Co., App’lt.

(Supreme Court, General Term, First Department,

Filed November 17, 1893.)

Headnote

Corporations—Taxes.

When a statute, under which a domestic corporation is organized, does not fix its residence, or require that its place of business or of its principal office shall be stated in its articles of association, its residence or domicil is deemed to be where its principal place of business is situated.

Proceedings were instituted by the receiver of taxes to enforce the payment of the tax imposed upon the defendant. An order was granted imposing a fine upon the company for nonpayment of such tax, and from this order the company appealed.

John H. Cahill (Henry C. Atwater, of counsel), for app’lt; John Or. U. Meyers, for resp’t.

Between the first Monday of September and the second Monday of the following January, the deputy tax commissioners are required to list, in the city of Hew York, real and personal property for taxation. Consol. Act, § 814. Only persons and corporations who are residents of the city on the second Monday of January in any given year are liable to be assessed on their personalty for that calendar year. Sisters of St. Francis v. Mayor, etc., 51 Hun, 353 ; 20 St. Rep., 925 ; affirmed 112 N. Y., 677 ; 20 St. Rep., 982 ; In re Babcock, 115 N. Y., 450 ; 26 S. Rep., 382. “ All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office, or place for transacting the financial concerns of the company, shall be ; or if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” 1 Rev. Stat., p. 389, § 6. The sole question is, was the corporation a resident of the city of Hew York on the second Monday of January, 1891? The record does not show whether it had been taxed in previous years at Albany or Hew York, and no presumption arises under § 2, chap. 392, Laws 1883, that it resided in either city in 1891. It is insisted in behalf of the city that the statement in the articles of incorporation that “ the principal office of the association shall be in the city of Hew York, state of Hew York,” fixed the residence of the corporation in that city, and that its residence had not been changed prior to the second Monday of January, 1891. When a statute under which a corporation is

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organized requires that it be stated in the articles of incorporation in what place the principal office for the management of its affairs is to be situated, and the location of its principal office is stated in the articles, the statement is conclusive evidence of the residence of the corporation for the purposes of taxation under the section of the Revised Statutes before quoted. Transportation Co. v. Schen, 19 N. Y., 408 ; Starch Factory v. Dolloway, 21 id., 449 ; Miner v. Village of Fredonia, 27 id., 155; Metcalf v. Messenger, 46 Barb., 325 ; Manufacturing Co. v. Coleman, 44 Hun, 545 ; 9 St. Rep., 360 ; Union Steambeat Co. v. City of Buffalo, 82 N. Y., 351 . The statute (chap. 265, Laws 1848, repealed by chap. 566, Laws 1890) under which the appellant was incorporated does not require that it shall be stated in the articles of incorporation where the principal office of a corporation organized under that act shall be kept located, nor does it contain any provision on this subject Because the statute does not require the location of the principal office of the corporation to be stated, it is urged in behalf of the appellant that the statement in its articles that its principal office shall be in the city of New York is surplusage, and that the decisions before cited do not control this case, and our attention is called to the following extract from the opinion in the case last cited: “ The general statute prescribing where corporations are to be taxed was framed to meet two classes of cases: First, those which had a principal office, fixed by their certificate, in accordance with the mandate of their charter, or the general law under which they were organized; and, second, those which had no such principal office fixed by their certificate of incorporation, because their charter did not require it. The former was to be taxed in the locality of their principal office; the latter in the 1 place for transacting the financial concerns of the company.’ Thus all possibility of mistake or oversight was prevented. If the company had a principal office, fixed by its certificate, that, and that only, was its residence for purposes of taxation. If it had no principal office so located by its certificate, then it was to be taxed where its financial concerns were transacted.”

This corporation belongs to the second class mentioned in this quotation. If the statement in the article is binding on the corporation, it is also binding on the taxing officers. The location of its principal office not having been fixed pursuant to any statute, it does not seem to us that the statement is binding on the taxing officers of other towns or cities, and that the appellant is taxable “where the operations of such company shall be carried on.” We do not think that a corporation without statutory authority can, by a statement in its articles that its principal office shall be kept in some remote town, escape taxation in the town or ward where its business is carried on. In this connection the language used by Judge Denio in Starch Factory v. Dolloway, 24 N. Y., 454 , seems quite pertinent:

“The Western Transportation Company, respecting which a question lately came before us, as to the place where it was to be taxed, was formed under a general act which provided

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for the incorporation of navigation companies. That species of business could not generally be carried on in a single local jurisdiction, and hence such a company could not be located in any city or town in the manner adopted in respect to manufacturing corporations by requiring its certificate to state the place where its operations should be carried on. If no statement of any locality had been required, the provisions of the revised statutes would have applied to the case, and the assessors would have been obliged to inquire where, in point of fact, its principal financial office had been established.”

Had the sentence contained in Judge Denio’s opinion, which we have italicized, been necessary for the decision of that case, it would be decisive of the one at bar, and the same may be said of the language quoted from the eighty-second of New York. While these decisions are not decisive of the question now presented, yet they are persuasive, and our views accord with those expressed in the two judgments last referred to.

When a statute under which a domestic corporation is organized does not fix its residence, or require that its place of business or of its principal office shall be stated in its articles of association, its residence or domicile is deemed to be where its principal place of business is situated, (Conroe v. Insurance Co., 10 How. Pr., 403 ; Hubbard v. Insurance Co., 11 id., 149 ; Thorn v. Railroad Co., 26 N. J. Law, 121 ; Ang. & A. Corp., § 107; Boone Corp., § 33; Dicey, Dom. 7, 110;) and when the residence of such a corporation is not fixed pursuant to statute it may change its principal office or place of business from where it was first established to any place within the state wherein it is actually engaged in carrying on its business pursuant to authority conferred by its charter or by its articles of association. There is no statute in this state forbidding a corporation authorized to carry on its business in several counties from removing its office or place of business from where it was first established to some other county in which it is authorized to transact business, unless the place where its principal office is to be kept is required to be stated in its articles of incorporation; and in some cases corporations which are required to fix their principal business office in their articles may remove their office to other places. In case a business corporation is organized under chapter 567, Laws 1890, the location of its principal place of business must be stated in its articles; but it is provided by the ninth section of the act that such a corporation may change its principal office with the consent of its stockholders owning two-thirds of the capital stock. We think, the evidence being uncontradicted, that this corporation had removed its offices from the city of New York, and had ceased to transact any business therein prior to the second Monday of January, 1891, that it was not a resident of that city, and not taxable therein.

The order should be reversed, and the application denied, with costs.

Van Brunt, P. J., and Parker, X, concur.