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to customers outside of the State. See U. S. Glue Co. v. Town of Oak Creek, 161 Wisc. 211. In such case, the corporation may be taxable in two jurisdictions.
Under the item "(b) personal property sold by the corporation from merchandise owned by it at the time of the acceptance of order, but not manufactured by it," viz., goods which were made
for it after it accepted the order, a corporation may have on its books accounts for goods sold which were not in existence at the time of the acceptance of the order, and hence could not reasonably go under (b), but might be fairly expected to go under "(c) services performed based on orders received at offices maintained by the corporation, excluding bills and accounts receivable on orders filled from a stock of merchandise or other property maintained by the corporation.” Item (c) would include the value of services rendered by a so-called personal-service corporation under the 1919 amendment, viz., accounts receivable by an advertising corporation, engineering company, trucking company, etc.
Item (c) might also include accounts for services performed in the State, by a company maintaining a factory or warehouse outside of the State; for instance, a corporation engaged in the automobile business, having a factory outside of the State, might have a repair shop or service station within the State, where services are rendered and work is done. In connection with such services, supplies and parts might also be sold. These last should be separated from the services rendered.
The item of average monthly value of all real property includes the actual value. In New York State, the Tax Law provides (Section 6), that all real estate shall be assessed at the "full value” thereof, and there is a legal presumption that assessors, being public officers, do their duty. People ex rel. Manhattan R. R. Co. v. Commissioners, 146 N. Y. 304, 165 N. Y. 305. There is no presumption in relation to the assessments in other States, and consequently the assessed value of real estate outside of the State of New York, may or may not be at actual value.
The provision in the form as to the item of the average monthly
value of its tangible personal property, is that it shall be made at "its actual value where located,” which may be construed as its ordinary market value. This may be accepted even though smaller than the book value where nothing else appears to cast a doubt on the corporation's figures. People ex rel. A. G. Hyde & Sons v. O'Donnel, 116 App. Div. 161; aff’d 188 N. Y. 551.
The cost may be taken as the basis in the absence of satisfactory proof as to the market or actual value. People ex rel. John Turl's Sons v. O'Donnell, N. Y. Law Journal, June 27th, 1905. See also People ex rel. Journeay & Burnham Co. v. Roberts, 37 App. Div. 1.
The last item in the segregation of assets is the “average total actual value of shares of stocks of other corporations owned by this corporation.”
In connection with this item and the apportionment of property called for by it, it should be remembered that only the shares of stock should be segregated to this State if the physical property represented by it, is within the State, or vice versa.
Under the amended law, while the segregation of this item shall be given in full, in its computation for the purpose of arriving at the tax due in each case, this item shall not exceed 10 per cent. of the real and tangible personal property segregated to this State, or in case of the segregation of shares of stock outside of New York State, it shall not exceed 10 per cent. of the aggregate real and tangible personal property set up in this report.
Computation of tax.
I. If the entire business of the corporation be transacted within the State, the tax will be 412 per cent. of the entire net income. The tax will not be less than $10 or less than one mill on the dollar (1/10%) on the face value of the issued capital stock, viz., if the income is $200 and the face value of the issued capital stock is $1,000, the tax will be $10. If the income is $200 and the face value of the issued capital stock is $20,000, the tax will be $20.
II. If the corporation has no income for the fiscal or calendar
year under consideration, and if its entire property is apportioned within the State as determined by the rules laid down in the statute and heretofore explained, the tax will be one mill upon each dollar of the face value of its issued capital stock, but not less than $10, viz., if the face value of the issued capital stock is $1,000 the tax will not be less than $10, which in this case, coincides with one mill on the face value of $1,000, the issued capital stock. But if one mill on the face value of the issued capital stock is more than $10, viz., if the face value of the issued capital stock is $20,000, the tax will be $20 in the case mentioned; and if the face value of the issued capital stock is $100,000 the tax will be $100.
The expression in the statute, that the tax shall be "not less than $10 and not less than one mill upon the apportionment of the face value of its issued capital stock apportioned to this State" means that the tax shall not be less than $10 and also that the tax shall not be less than the sum arrived at by the apportionment pointed out in the provisions in the amended statute of 1918.
The method of apportionment in determining the minimum tax of one mill on the face value of the issued capital stock under the last or proviso clause in Section 214, is not identical with the method of apportionment used in the body of Section 214 in de termining the amount of tax based on net income. In the former case, the bills receivable and stock in other corporations are not to be considered at all in making the apportionment, but only the real and tangible personal property.
Phrases similar to that used in Section 214 of the amended law, that the tax shall be "not less than $10 and not less than one mill upon each dollar of the apportionment,” etc., have been passed upon by the courts as meaning that it shall not be less than the greater sum.
In Commonwealth v. P. R. R. Co., 94 Pa. 474, the court said in this connection:
"The Act of Assembly does not say so. It requires an appraisement to be made between the 1st and 15th days of November, of the stock of non-dividend paying corporations, or those paying less than
six per cent., said stock is to be appraised at its cash value, 'not less, however, than the average price which said stock sold for during said year.' If the Legislature intended to have the stock appraised at its average price during the year, it was very easy to have said
We find nothing in the act from which such intent can be gathered with any reasonable certainty. On the contrary, the use of the words 'not less, however, than average price which said stock sold for during said year,' necessarily implies the power to appraise the stock at more than its average price during the year. The construction of the Act contended for by the company would expunge the words above quoted, or render them nugatory. It is our duty to give them effect if consistent with other portions of the statute. They mean just this: That if the stock of the company is lower when the appraisement is made in November than it was during the previous year, it shall be appraised at not less than the average selling price for the year. On the other hand, if it is higher in November, it may be appraised at its increased value. If it be objected to this view that the advantage is all on the side of the State, we may safely concede it to be so. The object of the Act was to raise revenue, and it appears to have been drawn with care, and in the interests of the State.
“We are of opinion that the learned judge of the court below ruled the law correctly, and his judgment is accordingly affirmed."
III. If the entire business be not transacted within the State, the tax shall be based on such proportion of the entire net income at 412 per cent., as the aggregate of items mentioned in subdivisions 1, 2 and 3 of Section 214 of the Tax Law, bears to the aggregate of items mentioned in subdivisions 4, 5 and 6 of Section 214, with this proviso: That, in the case of the ownership of stocks in other corporations, owned by the corporation, referred to in subdivisions 3 and 6 in said section, such stocks shall in neither case exceed 10 per cent. of the real and tangible personal property segregated to this State under 3, or of the aggregate real and tangible personal property set up under 6.
IV. Under this state of facts, in the case of a corporation whose net income for the fiscal or calendar year was $100,000 on the basis of $200,000 of assets segregated in New York State, as shown in the form of report, and $800,000 of total segregated assets wherever located, the tax apportioned to this State would be
X $100,000 X 412% = $1125.
800,000 V. If the same corporation has an issued capital stock of $5,000,000, the tax would be $1,250 instead of $1,125, since in no case can it be less than .001 of the issued capital stock. The same tax would be due, if the corporation had no income.
X.001 = $1250. 800,000 1 VI. If such a corporation has stock without par value, then it may take the paid in capital as the base, which, let us assume is $6,000,000 and the computation would appear as follows:
X.001 = $1500. 800,000 1 It will thus be seen that the same corporation may pay a tax of either $1,200 or $1,500, dependent upon whether it has a stock issue to the extent of the face value of $5,000,000, or whether it has stock without par value, which had a paid in capital or actual value of $6,000,000 at the time of its issuance.
Consolidated or merged corporations.-Under an amendment in 1918 to Article 9-a, which added a new section known as 214-a to the law taxing manufacturing and mercantile corporations, provision was made for the taxation of a corporation taking over by merger or consolidation the assets or franchise of another corporation. This section was again amended in 1919 so that it would apply to a corporation that took over not only by merger or consolidation, but by acquisition or transfer, directly or indirectly, the whole or major part of the assets of another company. In such case, the corporation receiving the benefit of the additional assets or franchises must return in addition to its own income, so much of the income of the corporation whose assets or franchises it acquired, as had not been used in measuring a franchise tax to