In re the Appraisal Under the Act in Relation to the Taxable Transfers of Property of the Property of Huntington

Thomas, S. — The appraiser designated to fix the amount of the transfer tax to be imposed on this estate reports a tax payable on legacies, $20*,000 each to Roosevelt Hospital, the Children’s Aid Society, the American Female Guardian Society and Home for the Friendless, and the New York Society for the Relief of the Ruptured and Crippled. A formal order determining the tax has been made upon the appraiser’s report, and from such, order the said legatees severally appeal. Each of the appellants is a corporation, and each is exempt from taxation on real or personal property. Exemptions of the three first named from taxation are created 'by special acts of the Legislature, and the real and personal property of all of them is declared exempt from taxation by sub-division 7 of section 4 of the General Tax Law, as corporations organized exclusively for one or more of the charitable or benevolent purposes therein [199] described. By section 220 of tbe Tax Law (Laws of 1896, cliap. 908), being' the first section of article 10 thereof, relating to the transfer tax, it is enacted that “ a tax shall be and is hereby imposed upon the transfer of any property ... to persons or corporations not exempt from taxation on real or personal property ” in certain cases, including cases of transfers by will. It is conceded that no transfer tax should have been imposed, except for an amendment made to the Tax Law by chapter 382 of the Laws of 1900, which added at the end of article 10 -a. new section, as follows: “ Section 243. Exemptions in article one not applicable. The exemptions enumerated in section four of the tax law, of which this article is a part, shall not be construed as being applicable in any manner to the provisions of article ten hereof.” It is contended that this new provision operated as a constructive repeal of so much of section 220 as limited the tax upon transfer by will to persons or corporations not exempt from taxation on real or personal property, and that the only exemptions now remaining concern transfers to a bishop or a religious corporation under section 221 of the act. This view* was taken by the appraiser and led to the report and order now appealed from. I cannot agree as to this conclusion. The words quoted from section 220 of the act are at the very beginning of the provisions concerning the transfer tax, and declare the will of the Legislature in unmistakable terms. They were not expressly repealed, and they can stand, while at the same time full possible force is given to the new section. It has recently been determined by the learned surrogate of Suffolk county that the amendment does not operate to defeat the exemption on a transfer to a corporation having exemption from general taxation under a special act, and in so much of his decision I concur. Matter of Howell, 34 Misc. Rep. 40. This requires a reversal of the order, and an adjudication of exemption in favor of the first three named appellants. It remains to be considered as to whether the [200] amendment operated to defeat tbe exemptions from transfer tax of tbe benevolent and charitable corporations whose exemption from general taxation rests upon section 4 of the-Tax Law. If it does this we find some curious results to follow from a brief statute^ which, upon its face, suggests none of them. The vital operative words at the very beginning of article 10 of the Tax Law, concerning taxable transfers, applicable to, the entire article, which limits the imposition of a transfer tax to corporations “ not exempt from taxation on real or personal property,” though retained by the Legislature, are to' become in part inoperative. As the words stand the burden is thrown on the taxing power claiming a tax to show that the corporation is one “ not exempt.” As we are asked to construe them they are to mean to subject transfers to all corporations to the tax, including those exempt by the general law, unless exemption is shown under a special statute. The exemptions of transfers to bishops or religious corporations continue^ because of the express provisions of section 221; the exemptions to specially favored charities remain, because the language of the new statute plainly has no reference to them, but charitable corporations in general must pay the tax. -Bequests to any corporation of a religious character, however narrow or sectarian, are exempt. Bequests to charities which have had unusual and exceptional privileges granted them are exempt. But a charitable corporation ministering to the needs of the poor, the sick or the helpless, which has never asked or obtained peculiar exemption, but has hitherto been accorded exemption from taxation upon a general law applicable to all such institutions, must pay the tax. A general and equal law, requiring the claim to exemption to1 be determined upon rational and reasonable principles, is to 'be set aside, and, in construing tbe Transfer Tax Act, we must shut our eyes to it. Special acts passed at divers times in favor of corporations asking for special privileges are to be tbe foundations for new exemptions. Tbe general policy of this State [201] has been to make taxation equal and to measure exemptions by a standard common to all, and an intent to create a different rule is not to be implied from any language capable of another construction. If we examine’the whole of section 4 of the Tax Act, treating of the exemptions declared by the amending statute to be inapplicable to the Transfer Tax Law, we will find that it deals exclusively with exemptions of property. It begins by stating that the following “ property ” shall be exempt from taxation. If contains seventeen sections, only one of which concerns exemptions of the property of certain religious, charitable or benevolent corporations. It includes, among other things, property exempt from execution; bonds of a municipal corporation; registered vessels engaged in ocean commerce; bonds, mortgages, etc., belonging to non-residents deposited in this State for collection; the products of another State owned by a non-resident and consigned to his agent in this State for sale; moneys of a non-resident under the control or in the possession of his agpnt in this State; deposits in savings banks; the accumulations of a domestic life insurance company or cooperative loan association. The Transfer Tax Act imposes a tax on transfers and creates no new tax on the property itself. The exemptions mentioned in section 4 of the Tax Law are not on transfers but on property, and they should not be construed as being applicable in any manner to the provisions of article 10' concerning the transfer tax. The new section created by the amendment so enacts, and so makes plain a subject which invites confusion. This, in my judgment, was its whole intent and purpose and to this its meaning should be limited. Matter of the Evergreens, 47 N. Y. 216, 220. We must remember that the Legislature had ample power to make its meaning clear. If there is any question of doubt remaining the doubt must be solved in favor of the taxpayer and against the State. Matter of Enston, 113 N. Y. 174; Matter of Fayerweather, 143 id. 114; Matter of Harbeck, 161 id. 211, 217. The order appealed [202] from, so far as it imposes a tax on tbe interests transferred to tbe appellants or either of them, is reversed and those interests are declared to be exempt from transfer tax. Order reversed so far as it imposes a tax on interests transferred to appellants, and those interests are declared to be exempt from transfer tax.