Matter of 436 W. 34th St. Corp. v. McGoldrick

Desmond, J. The Comptroller of the City of New York has made a determination that this appellant is subject to the provisions of New. York City Local Law No. 80 of 1940 (Local Laws 1940, p. 365), and so liable to the payment of a utility tax to the city. Petitioner owns an apartment house in New York City. Its leases with its tenants require the tenants to purchase from petitioner such electric current as they require. Petitioner buys current from Consolidated Edison Company, of New York, Inc., *348 uses some of it for its own requirements as landlord of the building, and distributes and sells the rest of it to the tenants. The Consolidated Edison Company delivers all this current to its “ master meter ” in petitioner’s building; so much of it as is used by a tenant is transmitted to the tenant’s apartment from the- master meter through wires owned by the landlord, and recorded on one of 130 separate meters, owned by the landlord. The tenant pays the landlord for the current he uses at the same “ retail ” rate which the tenant would pay the Consolidated Edison Company if he dealt directly with the latter. This arrangement so works out mathematically that the landlord receives more from the tenant, for power used by the tenant, than the landlord pays Consolidated Edison Company for the same amount of current at “ wholesale ” fates. The landlord’s charges to its tenants for sub-metered current are billed separately from, and not included in, the rent. The 1934 City of New York Utility Tax Law (Local Law No. 21, 1934, published as No. 22) defined a “ utility ” to include any person subject to the supervision of the department of public service, and every person, whether or not subject to such supervision who should “ engage in the business of furnishing or selling to other persons gas, electricity,” etc. (Local Laws, 1934, p. 152, as amd. Local Law No.-2 of 1935.) In Matter of 320 West 37th Street, Inc., v. McGoldrick, (281 N. Y. 132), we construed this Local Law (and similar Local Laws of 1935, 1936 and 1937) to apply only to persons actually engaged in the public utility business, as commonly understood. Landlords, we said, who resold current through sub-metering, but only as an incident to their ownership and operation of real property, were not included within the described coverage. Later we made a similar ruling, in Matter of 339 Central Park West, Inc., v. Graves (284 N. Y. 691), as to the State Utility Tax Law (L. 1937, ch. 321; Tax Law, § 186-a; Cons. Laws, ch. 60) which, as it then stood, and so far as is here important, applied to the same persons as did the local laws mentioned above. (See Matter of Lacidem Realty Corp. v. Graves, 288 N. Y. 354, decided herewith.) The city of New York thereupon took steps so to rewrite its statute as to make these landlords liable for this utility tax. Local Law No. 80 of 1940 of the City of New York imposed the tax on an additional category of persons, described as “ vendors of utility services.” A “ vendor ” is defined by the new Local Law as any *349 one who, though not subject to the supervision of the department of public service, furnishes or sells electricity, gas, etc., “ regardless of whether such furnishing, selling or operation constitutes the main activity of such person or is merely incidental thereto.” These “ vendors,” so defined, are required by the statute to pay the tax, not on their whole gross income, as public service corporations must, but on the gross receipts of their submetering activities, only. Duplication of tax is avoided by exempting public service corporations from paying tax on moneys derived by them from sales to vendors of utility services for resale. There cannot, of course, be any doubt that this Local Law, as so amended in 1940, was intended to cover everyone selling or reselling electric current, within the city of New York. Appellant does not dispute the applicability to it, in terms, of Local Law No 80 of 1940, but it presses upon us a claim that the statute, so applied, is unconstitutional. Appellant’s position is that this tax violates the “ due process ” and • “ equal protection ” clauses of the State Constitution (art. 1, §§ 6, 11). The argument, simply stated, is that this appellant is not a public utility, has none of the characteristics of a public utility, and so cannot be made subject to a special tax upon utilities. But the city is not taxing appellant as a public utility. It has made its utility tax, so called, applicable to not one, but two, classes of persons: First, those engaged in the regular business of selling or furnishing publicly, gas, electricity, etc., and second, all those, called “ vendors ” in the statute, who sell or furnish those services, even though such sales and furnishings are incidental to other principal businesses. Plainly, this does not constitute an arbitrary or discriminatory lumping together into one class, for purposes of taxation, of essentially different subjects of taxation. All those made subject to this tax deliver electric, gas and similar services to the public, for a price. It is unnecessary to point out that the city could legally have levied an entirely separate tax on sub-metering. That it has chosen to list that tax in the same statute with a tax on regular public utility corporations is no argument against its validity. The effect of the combined coverages of this city statute is that every seller of electricity, at retail, pays the same tax, at the same rate and on the same base. Such taxing provisions cannot be *350 said to be based on fictions or on arbitrary or unreasonable assumptions of fact (see Matter of Vanderbilt, 281 N. Y. 297, 314). The classifications here under review show no sign of hostile or oppressive discrimination. It is perfectly well settled that a tax does not offend against the equal protection clause simply because it reaches some businesses and allows the escape of others that might have been covered in (Matter of Schulte, Inc., v. Graves, 242 App. Div. 724; affd., 266 N. Y. 592). The question of constitutional validity disappears when it cannot be said that no state of facts reasonably justifying the classifications can be conceived (see Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232; New York Rapid Transit Corp. v. City of New York, 303 U. S. 573). Appellant here relies largely upon certain language in this court’s opinion in Matter of Merchants Refrigerating Co. v. Taylor (275 N. Y. 113), and our later comments on that case, in Matter of 320 W. 37th St., Inc., v. McGoldrick (supra). In the Merchants Refrigerating case we decided that the city’s Utility Tax Law was invalid in so far as it taxed the corporation on its receipts from that part of its business which consisted of sales of refrigeration to stores occupied by its tenants in its storage warehouses. (Local Law No. 2 of 1935 laid the tax on sales of refrigeration as well as of gas, electricity, etc.) In analyzing this Merchants Refrigerating decision we must remember that we were there passing on a determination of taxability which classed refrigeration companies with gas and electric companies under the all-inclusive definition of “ utility,” even though the refrigeration was produced on the company’s own premises and the part sold to its tenants was only the surplus over its own needs. The Merchants Refrigerating decision is, plainly, based on the meaning of the phrase “ engage in the business of furnishing or selling * * * refrigeration.” (Local Law, No. 2, of 1935.) The company was “ engaged ” in such “ business ” only as incidental to its extensive warehousing business, and the statute did not then, as it does now, attempt to set up and cover separately another class, called “ vendors,” who sell such services, as incidental to other businesses. To take a warehouse company, with small incidental sales of refrigeration, and tax its whole receipts just like the gross receipts of the regular public utility companies, would have gone so far beyond the reasonable intendment of a *351 statute which, as it then stood, purported to tax only “ utilities,” that this court refused to find such a purpose in the language of the Local Law. This court, in the Merchants Refrigerating case, did mention favorably, although it did not directly pass on, the contention of the taxpayer that the statute, if construed so as to cover its operations, would be arbitrary and discriminatory. But this contention ran mainly against the effort of the city to tax the company’s entire receipts, only a little of which came from the sale of refrigeration. The effort to tax the whole income because this small proportion thereof bore some relation to what might be called a “ utility ” business, was held to be unreasonable and discriminatory. When, later on, we came to discuss the Merchants Refrigerating case in Matter of 320 West 37th St., Inc., v. McGoldrick (supra), we rejected the argument that the apartment house owner, simply because it “ has the benefit ” of the Consolidated Edison Company’s underlying franchise, was taxable as a “ utility ” under the Local Law. We did not say or suggest that a submetering landlord’s receipts from the sale of current could not validly be made subject, under proper classification, to the same tax paid by utility companies on their receipts from the sale of current. There is a substantial measure of similarity between the two operations so taxed, and so the general rule, requiring, within reason, equal treatment for all similarly situated, has not been violated. We point out that this court, in the Merchants Refrigerating case, did sustain the imposition of the tax on so much of the company’s receipts as come from that branch of its refrigerating business which had some of the characteristics of a “ utility ” business, i. e., its sale of refrigeration by transmission through pipes laid in the streets, under a franchise from the city. It follows that the Comptroller was correct in his determination that this appellant must pay this tax on its receipts from the sale to its tenants of submetered electric current. The order should be affirmed, with costs.