Dime Savings Bank v. State

582 In our opinion, the plaintiff is not entitled to a refund of the taxes it paid pursuant to New York’s special mortgage recording tax statute (see, Tax Law § 253 [1-a] [a]). This statute, considered apart from its severable anti-pass-through provision, is fully consistent with Federal law. It was only the anti-pass-through provision which was preempted by Federal regulation (see, Dime Sav. Bank v State of New York, 174 AD2d 173); the tax itself was not. It is clear that the Legislature intended that the tax be imposed irrespective of the efficacy of the anti-pass-through provision (see, Exxon Corp. v Eagerton, 462 US 176, 186, n 6, on remand sub nom. Union Oil Co. v Eagerton, 440 So 2d 1031 [Ala]; cf., Shell Oil Co. v New York State Tax Commn., 91 AD2d 81). Bracken, J. P., Rosenblatt, Sullivan and Hart, JJ., concur.