Brooklyn Union Gas Co. v. McGoldrick

Callahan, J. Petitioner, a corporation operating public utilities in the boroughs of Brooklyn and Queens, city of New York, is.seeking to review a determination of the city taxing authorities imposing a local tax on its gross income. In assessing such tax on petitioner the city has included in gross taxable income receipts from sales of certain by-products of petitioner’s plant, and from scrap and appliances produced by it, all of which were sold for resale. There is no dispute with respect to the amount of said sales, nor as to the fact that they represent sales of goods for resale. — 189 — The tax period involved in this proceeding runs from July 1, 1937, to June 30, 1941. During that period both the State of New York and the City of New York have taxed the gross income of utilities, the State tax being at the rate of 2% and the city’s tax at 1%. The petitioner contends that as section 186-a of the Tax Law, the statute imposing the State tax, specifically excludes sales made for resale from taxable income of utilities, the City of New York was without power to adopt local laws including such income in its tax base. From 1933 to 1937 the City .of New York alone had imposed a gross tax on the income of utilities. It had done so by local laws which had been adopted pursuant to authority granted by various enabling acts. By 1937 the rate of this gross income tax as imposed by the City of New York had reached 3% per annum. In 1937 the Governor of the State recommended to the Legislature that the State impose a 2% tax, and that all cities of the State be permitted to impose a similar 1% tax, on the gross income of utilities. The Governor’s message recommended that in order to avoid placing an unreasonable burden on the utility companies, a limitation of 1% be placed on the power of the cities to tax so that, taking into consideration the State’s 2% tax, “ the aggregate tax on public utility companies furnishing services in the City of New York will not be increased but will remain at three per cent as today (N. Y. Legis. Doc., 1937, .No. 91, p. 4.) After receiving said message, the Legislature enacted two statutes known as chapter 321 and chapter 327 of the Laws of 1937. Chapter 321 added section 186-a to the Tax Law and section 20-b to the General City Law. Section 186-a of the Tax Law imposed a tax of 2% on the gross income of every utility in the State subject to the supervision of the State Department of Public Service, and a like tax on the gross operating income of other utilities. Petitioner is a utility in the first category. Section 186-a also contained a definition of gross income reading as follows: “ § 186-a. * * * (c) the words ‘ gross income ’ mean and include receipts received in or by reason of any sale (except sales hereinafter referred to with respect to which it is provided that profits from the sale shall be included in gross income) made or service rendered to persons for ultimate consumption or use by them in this state, including cash, credits and property of any kind or nature (whether or not such sale is made or such service is rendered for profit), — 190 — without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expense whatsoever; also profits from the sale of securities; also profits from the sale of real property growing out of the ownership or use of or interest in such property; also profit from the sale of personal property^ other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the period for which a return is made); also receipts from interest, dividends, and royalties, derived from sources within this state other than such as are received from a corporation a majority of whose voting stock is owned by the taxpaying utility, without any deduction therefrom for any expenses whatsoever incurred in connection with the receipt thereof, and'also profits from any transaction within this state whatsoever * * It is to be noted that the foregoing definition makes taxable only income from sales made for ultimate consumption or use by a purchaser and thus excludes sales made for resale. Section 20-b of the General City Law, as adopted by chapter 321 of the Laws of 1937, empowered any city of the State by local law to impose a city tax “ such as ” was imposed by section 186-a of the Tax Law, except that the rate of the city tax was not to exceed 1%. The section also provided: “ All of the provisions-of section one hundred eighty-six-a of the tax law, so far as the same.are or can be made applicable, with such limitations as are set forth in this section, and such modifications as may be necessary in order to adapt such taxes to local conditions shall-apply to the taxes authorized by this'section.” Sections 186-a of the Tax Law and 20-b of the General City Law, as first adopted, were effective for one year. They have been extended from year to year by later legislative enactments. Some changes were made in the verbiage of the sections by the amendatory acts, but as such changes do not substantially affect the question presented to us, we shall oinit more detailed reference to them. Chapter 327 of the Laws of 1937 was a statute amending earlier enabling acts which had been adopted by the Legislature from 1933 to 1937, authorizing cities having a population of one million inhabitants or more to impose emergency taxes for various purposes. These annual enabling acts granted to such cities broad delegation of the taxing power of the State with express restrictions against the imposition of specified taxes. Pursuant to the authority conferred by these enabling — 191 — acts the City of New York had adopted from year to year local laws taxing the gross income of utility companies as well as imposing other forms of local taxation. At no time since the inception of its tax on the gross income of utilities had the city limited such tax to income from sales made for ultimate-consumption. ' Following the phraseology of the earlier enabling acts, chapter 327 of the Laws of 1937 provided that any city of one million inhabitants or more was authorized to adopt or amend local laws, imposing therein any-tax or taxes which the Legislature had or would have the power to impose. Chapter 327 specifically provided, however, that it did not authorize the imposition of taxes on the gross income of public utilities subject to taxation under section 186-a of the Tax Law, except “ in accordance with ” the provisions of section 20-b of the General City Law. Chapter 327 then provided: “ Except as expressly otherwise in this act provided, nothing herein contained shall limit or prevent the imposition of a tax on gross incomes or a tax on gross receipts of persons, firms and corporations doing business in any such city. No such person, firm or corporation, however, shall be subject to the imposition of more than one tax by any such city on gross income or gross receipts under the provisions of this act.” During the years 1938,. 1939 and 1940, enabling acts containing provisions similar to those found in chapter 327 of the Laws of 1937 were also adopted by the Legislature (L. 1938, ch. 444; L. 1939, ch. 659; L. 1940, ch. 245). Each of these enabling acts contained a limitation on the authority of a city to tax gross income of utilities taxable under the provisions of section 186-a, to taxation “ in accordance with ” the provisions of section 20-b of the General City Law. Each of the new enabling acts also contained the general grant of power above quoted. Pursuant to these acts, the City of New York in each year adopted local laws taxing the gross income of utilities, including income from all sales. Again we find it unnecessary to refer in detail- to these numerous amendatory enabling acts or local laws, as we deem that no provision thereof materially alters the question of construction now presented. We may state, however, that the enabling acts enacted after the adoption of the new Constitution in 1939, in compliance with the constitutional requirement, specified in detail the kind of taxes that might be imposed, instead of, as theretofore, granting broad delegation of power to tax subject to specific limitations. — 192 — The question we must decide is whether the Legislature in adopting chapter 321 and chapter 327 o.f the Laws of 1937, and the subsequent acts extending those laws, intended to limit the power of the City of New York so as to permit it to tax only such gross income of utilities as was taxed by the State under section 186-a of the Tax Law. Petitioner contends that such'a limitation has been imposed by reason of the provisions in chapter 327 of the Laws of 1937 and the subsequent enabling acts, réquiring all taxation by any city on the gross income of utilities to be “ in accordance with ” the provisions of section 20-b of the General City Law. It points out that in turn section 20-b of the City Law limits the power of cities to taxes “ such as ” are imposed by section 186-a, and contains the further requirement that all provisions of section 186-a shall apply to any tax imposed under section 20-b insofar as the provisions of section 186-a can be made applicable. These provisions, says the petitioner, read together, limit the power of the city to taxation of gross income as defined in section 186-a.- The respondent, on the other hand, asserts that the limitation found in chapter 327 of the Laws of 1937, to the effect that any tax on the gross, income of utilities be “ in accordance with ” the provisions of section 20-b of the City Law, was intended merely to limit a city of one million or more inhabitants to the 1% tax rate imposed by section 20-b. It contends that the limitation found in section 20-b requiring that a tax be one “ such as ” is imposed by section 186-a, merely means one similar to or of the same general nature as the tax provided for in section 186-a. The city further contends that the general grants of power contained in the various enabling acts fully authorize the city to tax all receipts from the gross income of utilities operating in the city of New York, without exception or limitation. In fact, it contends that as to any receipts of such utilities not taxed by the State under section 186-a, the city is free to tax them at any rate it sees -fit, although in fact, to. date, it has only taxed them at the 1% rate. We think that the provisions' of the law above referred to must be construed to limit the power of the City of New York to tax the gross income' of utilities operating within said city, to the tax base specified in the definition of gross income found in section 186-a. -' The provisions in the local enabling acts adopted in 1937 and thereafter, to the effect that gross income of utilities subject to tax under section 186-a, shall not be taxed.by the city except “ in — 193 — accordance with ” section 20-b of the General City Law, cannot be construed to mean merely that the local tax be at the rate of 1%. This would be giving the phrase “ in accordance with ”, the unwarrantedly narrow meaning of “ partially in accordance with ”. All the relevant provisions of section 20-b would seem to be made applicable by the requirement that taxes imposed under the general enabling acts be “ in accordance with ” the provisions of that section. Section 20-b provides that any tax imposed by the city under the provisions of said section must be one “ such as ” was imposed by section 186-a. In addition it requires that all of the provisions of section 186-a, insofar as the same are or can be made applicable (with certain limitations and restrictions which are not effective here), apply to taxes authorized by section 20-b. Beading the sections together, as we aré required to do by the references made, the limitations in chapter 327 include those found in section 186-a insofar as such limitations can be made applicable. We can conceive of no valid reason why a definition limiting the base of the tax to certain sales can not be made applicable to utilities operating in the city of New York. In support of its contention that the phrase “ such as ” should be construed to mean “ of the same general character,” the respondent cites numerous dictionary definitions. While it is true that the phrase “ such as ” is sometimes given a broad meaning of general similitude, it is equally true that the phrase is at times given a more restricted meaning of “ not other or different ” (The Century Dictionary and Cyclopedia). But we are not required merely to determine whether the phrase “ such as ” was intended to be used in its broader or more restricted sense in the statute, for the additional provisions of section 20-b plainly provide that any local laws adopted pursuant to section 20-b shall be in conformity with all the applicable provisions of section 186-a. The City of New York, as a city of more than one million inhabitants, was empowered to impose local taxes by the general enabling statutes. Its right to do so did not find its origin in section 20-b. However, as to taxation of the gross income of utilities, any general grants of power contained in the enabling acts were restricted by the particular limitations placed thereon, including those read in by reference. (Hoey v. Gilroy, 129 N. Y. 132; City of Poughkeepsie v. Quintard, 136 N. Y. 275; Matter of Holzworth, 166 App. Div. 150.) As to the city’s claim that it is free to tax any receipts of utility corporations not taxed by the State under section 186-a — 194 — at any rate it sees fit, we think that snch a construction would clearly defeat what appears to have been the purpose of the Legislature in limiting the aggregate tax of the State and the cities thereof, to a total of 3%. Our attention has been called to the provisions of subdivision 13 of section 186-a of the Tax Law which respondent says evidence a legislative intent to permit the city’s tax to be upon a broader base than that of the State. This subdivision reads as follows: “ 13. Notwithstanding any other provision contained in this or any other law, in the event the city of New York shall enact a local law imposing a tax on utilities, such as is imposed by this section, except as to the rate of tax, the tax commission, in its discretion, may arrange with the chief fiscal officer of said city for the collection by him of the tax imposed by this section with respect to items that enter into the tax base for both the tax imposed by said city and that imposed pursuant to this section, and for the remittance by him of the tax imposed by this section to the tax commission for disposition as in this article provided. If such an arrangement be made, all the provisions of the local law of said city imposing the local tax shall apply with respect to the tax imposed by this section in the same manner as if the local tax rate had included the tax imposed by this section.” It is our view that this permissive administrative provision authorizing the Tax Commission in its discretion to arrange for collection of this class of tax by the city’s fiscal officer, cannot be read so as to nullify the provisions of section 20-b of • the General City Law mailing all the provisions of section 186-a of the Tax Law applicable to any tax by a city. While it is not entirely clear what was intended by the reference in subdivision 13 to u items that enter into the tax base for both the tax imposed by the city and that imposed [by the State] ”, it may well be, as argued by the petitioner, that such provision was intended to refer to situations where utility companies operate both within and without the city of New York. The authority of the City of New York to tax was clearly limited to transactions originating or consummated within the territorial limits of the city. Only income from transactions within such territorial limits would be part of the tax base for both the city and State. The words referred to may have been intended to take care of the situations mentioned. If there is any ambiguity involved, it relates solely to the meaning of this subdivision. We give no greater weight to the argument of respondent that the form of subsequent statutes amending the law as to — 195 — the city’s power to tax the gross income of utilities, manifested a practical construction by the State and local Legislatures, indicating that section 186-a was not intended to limit the local taxing power. The fact that after. 1937 certain amendments specifically limiting the power of the City of New York to tax gross income of utilities in other respects were placed in the enabling acts rather than in section 186-a, could not be held, on the theory of practical construction, to overcome the plain force of the language incorporated in the original and amended statutes. (Matter of Hines v. La Guardia, 293 N. Y. 207.) In determining the meaning of these taxing statutes we must be guided by the rule of construction which provides: “A statute which levies a tax is to be construed most strongly against the government and in favor of the citizen. The government takes nothing except what is given by the clear import of the words used, and a well-founded doubt as to the meaning of the act defeats the tax.” (People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51; People ex rel. N. Y. M. & N. T. Co. v. Gaus, 198 N. Y. 250; Matter of Good Humor Corporation v. McGoldrick, 289 N. Y. 452.) It is our view that during the period involved herein, income from sales of personal property made by utility corporations for resale by the purchaser thereof was not taxable. It follows that the determination of the comptroller insofar as it imposed a tax upon such sales should be annulled, with $50 costs and disbursements to the petitioner, and any collections which were made based thereupon refunded, with penalties and interest.