Opinion
May 1, 1912.
William Law Stout [ George W. McElroy with him on the brief], for the appellant.
William N. Dykman [ Francis L. Archer with him on the brief], for the respondent.
James Jourdan, by a last will and testament, gave all of his estate, both real and personal, to his widow. The cash value of this estate was fixed, for the purposes of the transfer tax, at $2,141,000.48, upon which a tax of $83,050.02 has been assessed, made up as follows:
$25,000 00 at one per cent ............ $250 00 100,000 00 at two per cent ............ 2,000 00 500,000 00 at three per cent .......... 15,000 00 1,000,000 00 at four per cent ........... 40,000 00 516,000 48 at five per cent ........... 25,800 02 __________ Total ........................... $83,050 02 ==========
The State Comptroller appeals from the order fixing this tax on the ground that under the provisions of chapter 706 of the Laws of 1910 the assessment should have been made upon a basis which would produce a tax of $90,800.02, and we are of the opinion that he is entirely right in this contention. The statute provides, in so far as it relates to the question here involved, that "No such tax shall be assessed upon property, real or personal, or any beneficial interest therein so transferred to a father, mother, widow or minor child of the decedent, grantor, donor or vendor, if the amount so transferred to such father, mother, widow or minor child is the sum of five thousand dollars or less; but if the amount so transferred to a father, mother, widow or a minor child is over five thousand dollars the excess shall be taxable at the rate of one per centum upon the clear market value of such property as hereinbefore provided. The rates of taxation hereinbefore prescribed in this and the preceding section are hereby designated as `primary rates.' Whenever any property, real or personal, or any beneficial interest therein which passes by any such transfer to or for the use of any person or corporation shall exceed the amount of twenty-five thousand dollars over and above the exemptions hereinbefore provided the rate of taxation shall be as follows: Upon all amounts in excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars, twice the primary rates; Upon all amounts in excess of the said one hundred thousand dollars and up to and including the sum of five hundred thousand dollars, three times the primary rates; Upon all amounts in excess of the said five hundred thousand dollars and up to and including the sum of one million dollars, four times the primary rates; Upon all amounts in excess of the said one million dollars, five times the primary rates." (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 221, as amd. by Laws of 1910, chap. 706.)
It would be difficult to devise more exact language to convey an idea, and yet the learned surrogate has argued himself into the conclusion that this language does not mean what it says, but that it means something entirely different, and which operates to deprive the State of several thousands of dollars of revenue. The scheme of the statute is very clear. It provides in the case of a widow and some others that there shall be an exemption of $5,000. If there is an amount in excess of this sum then a tax of one per cent is to be assessed upon such excess up to $25,000, and this sum of $25,000 is the limit of the primary rate. In other words, a tax of one per cent is assessed against each and every estate in excess of the exemptions up to the sum of $25,000. This is, in contemplation of the statute, the normal or primary estate to be transferred. When a larger estate is to be transferred it must be subjected to a heavier burden, and so it is provided that where the amount is in "excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars, twice the primary rates" shall be assessed, and so on through an ascending scale. Obviously the clear intent of this act is to place an assessment of one per cent upon the first $25,000 above the exemption; then two per cent upon all excess above $25,000 up to and including $100,000; then three per cent upon all sums in excess of $100,000 up to and including $500,000; then four per cent upon all sums in excess of $500,000 up to and including $1,000,000, and then five per cent upon all sums in excess of "the said one million dollars." There is no ambiguity in this language, and, therefore, no room for construction. The statute means just what it says, and it says the assessment shall be made at certain rates upon the first $25,000 above exemptions, and upon all sums in excess of "said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars," at a different rate, and this means that if there should be $50,000 transferred it would be subject to one per cent on $25,000 and two per cent upon an equal amount, and this rate would prevail "up to and including the sum of one hundred thousand dollars." If it reached in excess of $100,000, then upon all such excess the rate would be three per cent "up to and including the sum of five hundred thousand dollars," which would, in the present case, involve the sum of $400,000 to be assessed at three per cent, and so on until it embraced the entire estate of over $2,000,000.
The effort to make this language fit the assessment which has been made is ingenious but not convincing; it requires all too much of argument in a case which is not open to construction — which is in and of itself its own construction.
The order appealed from should be reversed, with ten dollars costs and disbursements.
BURR and THOMAS, JJ., concurred; JENKS, P.J., read for affirmance, with whom CARR, J., concurred.
I dissent. The provision of the Transfer Tax Law pertinent to the question presented reads as follows: "The rates of taxation hereinbefore prescribed in this and the preceding section are hereby designated as `primary rates.' Whenever any property, real or personal, or any beneficial interest therein which passes by any such transfer to or for the use of any person or corporation, shall exceed the amount of twenty-five thousand dollars over and above the exemptions hereinbefore provided the rate of taxation shall be as follows: Upon all amounts in excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars, twice the primary rates; Upon all amounts in excess of the said one hundred thousand dollars and up to and including the sum of five hundred thousand dollars, three times the primary rates; Upon all amounts in excess of the said five hundred thousand dollars and up to and including the sum of one million dollars, four times the primary rates; Upon all amounts in excess of the said one million dollars, five times the primary rates." (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 221, as amd. by Laws of 1910, chap. 706.) The question is the interpretation of the sentence, "Upon all amounts in excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars, twice the primary rates." The learned surrogate (See 70 Misc. Rep. 159) has decided that the maximum amount subject to twice the primary rates is $100,000, i.e., that after $25,000 has been taxed at the primary rate, then $100,000 is to be taxed at twice that rate. My associates hold that the maximum amount is $75,000 instead of $100,000. The language is susceptible of still another interpretation, namely, that whenever an amount is greater than $25,000, that amount up to and including the amount of $100,000, not first excising $25,000 thereof as subject to the primary rate, is subject to twice the primary rate.
Here is plain indication that "The real meaning of the Legislature is not clear," and hence the rule obtains that "all doubts as to the construction of a taxing statute are to be resolved in favor of the taxpayer." ( City of Rochester v. Fourteenth Ward Association, 183 N.Y. 23; Matter of Enston, 113 id. 174.) In the latter case the court say: "But the executors come into court claiming that the special taxation provided for in the law of 1885 is not applicable to them, or the property which they represent. In such a case they have the right, both in reason and in justice, to claim that they shall be clearly brought within the terms of the law before they shall be subjected to its burdens. It is a well-established rule that a citizen cannot be subjected to special burdens without the clear warrant of the law. The following authorities furnish the true rule applicable to such a case: Cooley on Taxation (2d ed. 275); United States v. Wiggleworth (2 Story, 373); Powers v. Barney (5 Blatch. 203); United States v. Watts (1 Bond, 583); Doe v. Snaith (8 Bing. 152); Green v. Holway ( 101 Mass. 243)."
As between the surrogate and my associates I am inclined to adopt the conclusion of the surrogate. In order to declare that the maximum amount that is subject to only twice the primary rates is $75,000, that amount must not only satisfy the statute that it is "in excess of the said twenty-five thousand dollars," but the other requirement thereof, "and up to and including the sum of one hundred thousand dollars." This requirement is not met by $75,000 save by the construction that the words "in excess" mean the difference between $25,000 and $100,000. It is well recognized that the expression "in excess" may indicate the difference between two numbers. But the question is whether they were used to express this idea in this instance. In a foregoing part of this very section the Legislature has provided: "but if the amount so transferred to a father, mother, widow or a minor child is over five thousand dollars the excess shall be taxable at the rate of one per centum," etc. Then follows the provision heretofore quoted. Here is a plain direction that "the excess" shall be taxable. There is no apparent reason, if the Legislature intended that only "the excess" of $100,000 over the $25,000, namely, $75,000, should be subject to twice the primary rates, that it would not have employed the same language to express the same idea. Certainly there would have been uniformity in expression if, for example, the Legislature had enacted, "but if the amount transferred is over twenty-five thousand dollars the excess up to one hundred thousand dollars shall be taxable at twice the primary rates." But instead of using such expression, or one synonymous, it departs to provide: "Upon all amounts in excess of the said twenty-five thousand dollars and up to and including the sum of one hundred thousand dollars." It is not the "excess," but upon "all amounts in excess." It is not the excess up to $100,000, or even all amounts in excess up to $100,000, but "all amounts," including "the sum of one hundred thousand dollars." And, then, a further provision reads, "Upon all amounts in excess of the said one hundred thousand dollars," so that the said $100,000 as theretofore used is not regarded as having expressed the limit, but as an amount which is subject to twice the primary rates only.
As between the two constructions up for review, I think the words "all amounts in excess" refer to any amount that is greater than, larger than and thus exceeds $25,000, up to and inclusive of the amount of $100,000. I vote to affirm the order.
CARR, J., concurred.
Order of the Surrogate's Court of Kings county reversed, with ten dollars costs and disbursements, and matter remitted to the surrogate to proceed in accordance with opinion.