Empire State Building Corp. v. City of New York

Rabin, J. Defendants appeal from an order of Special Term which granted plaintiff’s motion for summary judgment in this action brought by the plaintiff to declare invalid the provisions of sections 146-4.0 and 146-6.0 of the Administrative Code of the City of New York. This action arose as a result of the attempt of the City of New York to impose a real property tax upon plaintiff as grantee in a transaction with the United States. The city seeks to impose this tax on plaintiff, pursuant to title I of chapter 46 of the Administrative Code, which provides for the payment of a tax on transfers of real estate, and which provides for exemption as follows: “Exemptions — a. The following shall be exempt from the payment of the tax imposed by this title and from filing a return: " 2. the United States of America. Provided, however, that the exemption of such governmental bodies or persons shall not relieve a grantee from them of liability for the tax or from filing a return ” (Administrative Code, § 146-6.0). It is the plaintiff’s contention that the afore-mentioned section goes beyond the legislative authorization, as expressed in the enabling act (L. 1934, ch. 873, § 1, as amd.), which authorizes the city to impose the real property transfer tax, in that under the enabling act this transaction would be exempt from such tax. The enabling act, in relevant part, provides for the following exemptions: [322] “ This act shall not authorize the imposition of a tax on any transaction by or with the following: “ (a) The state of New York, or any public corporation (including a public corporation created pursuant to agreement or compact with another state or the Dominion of Canada), improvement district or other political subdivision of the state where it is the purchaser, user or consumer; (b) the United States of America, insofar as it is immune from taxation (L. 1934, ch. 873, § 1, as amd. by L. 1952, ch. 742, §5.) We are in agreement with the plaintiff’s contention that the city in attempting to tax the transaction herein involved acted in contravention of the enabling act and that, therefore, the tax imposed is illegal. The enabling act, in clear and definite terms, provides for. an exemption of a “ transaction by or with the United States of America insofar as it is immune from taxation.” The contention is made that this clause should be read as follows: “ This act shall not authorize the imposition of a tax on any transaction by or with the United States of America insofar as [the transaction] is immune from taxation.” However the clause as read in this manner would have no meaning at all. All that the provision— if so read — would accomplish would be to exempt a transaction which is already exempt. Why then a provision under which only the United States would be exempt when it is already immune from taxation? The plaintiff, we believe, correctly interprets the pronoun “it ” to refer to the United States with the consequence that the entire transaction would be exempt. Such an interpretation is meaningful, for, in some circumstances the United States does waive immunity from taxation (see, e.g., section 425 of title 31 of the United States Code, providing for State taxation of certain notes of national banking associations), in which event the transaction would not be exempt. Indeed, the statute as read in this manner is in conformity with the section immediately preceding it, with respect to a transaction by or with the State of New York (L. 1934, ch. 873, § 1, as amd. by L. 1959, ch. 369, § 5, subd. [8], par. a) wherein the word “ it ” refers to the governmental body. Likewise, it is evident that in the statute as amended (referring to the exemption of a transaction by or with the United States) the word “ it ” can be read in no other manner. (Tax Law [1965], § 1230.) A comparison of the provision in question with the provision exempting a transaction by or with the State of New York [323] mandates the finding that the intent of the statute was to exempt the grantee as well as the United States. A real estate transaction where the State is involved is exempt only when the State of New York is the purchaser, user or consumer. Such words limiting the exemption are not to be found where the United States is concerned. The failure of the statute to include words to such effect indicates that a broader exemption was intended. As above indicated, we hold that in the circumstances the entire transaction is exempt. When the Legislature wanted to permit the imposition of taxes on a party dealing with the Government it knew how to do it, as is evidenced by section 1230 of the Tax Law (1965). We consider the section under consideration in this case quite clear. However, if there should be any merit to the claim that it is ambiguous, then the tax law (this being a special tax) should be construed against the taxing authority (Matter of Mergentime, 129 App. Div. 367, affd. 195 N. Y. 572), and even in such event the plaintiff should not be subject to the tax imposed. Accordingly, the order appealed from should be affirmed with costs and disbursements to the respondent.