People ex rel. Metropolitan Life Insurance v. Knapp

H. T. Kellogg, J.: The principal question involved here is whether or not certain sums of money received from sales of annuities annually by a life insurance company during the years 1914 to 1917, inclusive, are to be regarded as “ premiums ” so as to enter the computation which determines the franchise tax assessable against relator under section 187 of the Tax Law. The provisions of section 187 of the Tax Law, as they existed during the years named, so far as material, read as follows: “ § 187. Franchise tax on insurance corporations. An annual State tax for the privilege of exercising corporate franchises or for carrying on business in their corporate or organized capacity within this State equal to one per centum on the gross amount of premiums received during the preceding calendar year for business done at any time in this State, which gross amount of premiums shall include all premiums received during such preceding calendar year on all policies, certificates, renewals, policies subsequently canceled, insurance and reinsurance during such preceding calendar year * * * shall be paid annually into the treasury of the State on or before the first day of June by the following corporations.” The corporations which are then enumerated are “ every domestic insurance corporation,” “ every insurance corporation, incorporated, * * * pur [415] suant to the laws of any other State of the United States,” and “ every insurance corporation, incorporated, * * * pursuant to the laws of any State without the United States.” Exceptions are then made in favor of certain corporations, but in every instance the corporation to be taxed is described as an insurance corporation. The same section provides: “ The term ‘ insurance corporations ’ as used in this article, shall include a corporation, association, joint-stock company or association, person, society, aggregation or partnership by whatever name known doing an insurance business in this State.” The tax to be laid, therefore, is exclusively a tax on insurance corporations, upon corporations “ doing an insurance business in this State,” and it is to be measured by “ all premiums ” received “ on all policies, certificates, renewals, policies subsequently canceled, insurance and reinsurance.” The typical case of life insurance is found when a person insured pays annually during his life a stipulated sum to an insurer in consideration of which the insurer engages to pay on the death of the insured a lump sum to a beneficiary. The typical case of an annuity is found where a purchaser pays down a lump sum to a grantor who engages himself to pay a beneficiary during life a stipulated sum annually. In the one case the insurer receives an annual sum during the fife of another and pays out a lump sum upon a stipulated death. In the other the grantor presently receives a lump sum and begins to disburse annual payments during fife. In the former case the the insured “ insures ” a dependent or other person against the contingency of his death, and thereby seeks to make indemnity for a possible loss. In the latter case payments are immediately made without regard to the death of the purchaser, and there is no indemnity feature whatever. The one is a provision for death, and the other is a provision for life. Webster defines “ premium ” as “ The consideration paid, whether in money or otherwise, for a contract of insurance.” He defines “ insurance ” as “A contract whereby, for a stipulated consideration, called a premium, one party undertakes to indemnify or guarantee another against loss by a certain specified contingency or peril.” The Century Dictionary defines “premium” as “The amount paid or agreed to be paid in one sum or periodically to insurers as the consideration for a con [416] tract of insurance.” It defines “ insurance ” as “A contract by which one party, for an agreed consideration (which is proportioned to the risk involved), undertakes to compensate the other for loss on a specified thing, from specified causes.” Bouvier defines “ premium ” as “ The consideration for a contract of insurance.” (Bouvier L. Diet., 3d rev.) It is quite evident that within these definitions a contract for an annuity is not a contract for insurance, and that the price paid for annuities is not a premium paid for an insurance policy. . The Legislature has itself distinguished between insurance policies and annuity bonds, for in section 70 of the Insurance Law it has authorized thirteen or more persons to become a corporation to write insurance “ upon the lives or the health of persons and every insurance appertaining thereto, and to grant, purchase or dispose of annuities.” Moreover, the Court of Appeals of this State in People v. Security Life Ins. & Annuity Co. (78 N. Y. 114) has said of annuity bonds: “ These are not cases of insurance, and they are not to be governed by any of the rules applicable to life insurance. They are cases simply where for a gross sum paid the company became bound to pay certain sums annually during the life of the annuitants. ” In a case in Pennsylvania it has been definitely held that sums of money, paid for annuities are not to be regarded as included within the words “ premiums of every character ” which by statute were made the measure of franchise taxes laid upon foreign insurance corporations doing business in that State. (See Commonwealth v. Metropolitan Life Ins. Co., 254 Penn. St. 510, 516; Penn. Laws of 1911, p. 616, § 16; 5 Purdon’s Digest [13th ed.], 6461, § 359.) We are of the opinion, therefore, that the State Tax Commission was in error when in reckoning a tax laid upon relator in accordance with premiums paid it it included in the computation sums of money with which annuities were purchased. In so far as the error affected the taxes of relator for the years 1915, 1916 and 1917 the State Tax Commission should correct the same. The tax for the year 1914 is not reviewable, however, for the reason that an application to revise the same was not presented to the Commission within one year after the tax was audited and stated. (Tax Law, § 198.) For these reasons the determination of the State Tax Com [417] mission should be reversed and the matter remitted to the Tax Commission for correction in accordance herewith. All concur, Kiley, J., with a memorandum, except John M. Kellogg, P. J., dissenting, with an opinion, in which Cochrane, J., concurs.