Opinion
May Term, 1903.
John Cunneen, Attorney-General, and William H. Wood, for the People.
George W. Wickersham, Edward E. Sprague, William Greenough and George Coggill, for the Bank for Savings.
The power of the Comptroller to revise and readjust the account for the purpose of taxation is found in section 195 of the Tax Law (Laws of 1896, chap. 908). In the revision this section was taken with some amendments from section 19 of chapter 542 of the Laws of 1880, added by chapter 463 of the Laws of 1889. The principal changes made by the amendments were, first, to limit the time during which an application could be made to the Comptroller for a revision to one year from the audit, statement and notice of the account, and, second, to permit the application for revision to be made by the Attorney-General as well as by the party against whom the account had been stated. The other changes, except one requiring the Comptroller to give notice of the determination to the applicant, were simply in phraseology and leave the section without substantial alteration except in the two respects stated. This court has held under the section as it stood prior to the amendments that the Comptroller had no power upon a revision to increase the tax. ( People ex rel. Syracuse Improvement Co. v. Morgan, 59 App. Div. 302; People ex rel. Eppens Co. v. Roberts, 51 id. 152.) None of the changes made in the statute are effective, in my opinion, to change the authority of these decisions as to the want of power in the Comptroller under the section to increase the tax upon a revision by him. Manifestly the changes above mentioned have no relation to the question of the power of the Comptroller. The power, on a revision of the tax, is stated in identical language in the old and in the new sections, and is that he "shall resettle the same according to law and the facts, and charge or credit, as the case may require, the difference, if any, resulting from such revision," etc., upon the accounts of such corporation. It was urged in the cases cited that the phrase he shall "charge or credit, as the case may require," gave the right to the Comptroller to increase the tax, but the court decided against that view.
There being no change in the statute in this respect those cases are decisive of the question here presented.
The determination of the Comptroller should be affirmed, with fifty dollars costs and disbursements to the respondent bank.
All concurred.
Determination of the Comptroller confirmed, with fifty dollars dollars costs and disbursements to the respondent bank.