Opinion
Argued November 19, 1923
Decided December 27, 1923
Charles A. Sawyer and Carl A. de Gerdorff for Elizabeth L. Henry, individually and as executrix, appellant and respondent. A. Welles Stump and Charles A. Curtin for State Tax Commission, respondent and appellant.
We concur with the Appellate Division in its conclusion that the so-called advances made by the decedent to the partnership of which he was a member are "capital invested in business in the state by a non-resident of the state doing business in the state either as principal or partner" (Tax Law [Cons. Laws, ch. 60], § 220, subd. 2). This leads to an affirmance of that part of the order which is the subject of the appeal by the executrix.
We think, however, that the Appellate Division erred in modifying the order of the surrogate by deducting the proportion of the commissions payable to the executrix on property outside of New York which the net New York estate bore to the entire estate wherever situated. The fact seems to have been overlooked that the surrogate had already allowed a deduction of commissions computed on the New York assets. The result of the modification is to make the allowance twice. A different question would be here if there had been ancillary administration in New York. In such a situation duplication of administration expenses might be necessary. The fact is, however, that there was but one set of commissions payable for the whole estate. Allocation between the home jurisdiction and New York was adequately made when there was allowance for the part of the commissions computed upon assets here. We deal now with the law as it stood in 1920. Since the order under review was made, the rule has been clarified by an amendment of the statute (Tax Law, § 221c; L. 1922, ch. 432).
The order of the Appellate Division in so far as it modified the order of the surrogate should be reversed, and the order of the surrogate affirmed, without costs to either party.
All concur.
Ordered accordingly.