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report under this article, which shall contain information and data upon such matters as the comptroller may specify. (Sec. 194, former sec. 191, Tax Law.)

Source: See source to sec. 192, Tax Law, supra; same references.

Powers of comptroller to examine into affairs of corporation.In case any report required by any of the preceding sections of this article shall be unsatisfactory to the comptroller, or if any such report is not made as herein required, the comptroller is authorized to make an estimate of the dividends paid by such corporation and the value of the capital stock employed by it, from any such report or from any other data, and to order and state an account according to the estimate and value so made by him for the taxes, percentage and interest due the state from such corporation, association, joint stock company, person or partnership. The comptroller shall also have power to examine or cause to be examined in case of a failure to report or in case the report is unsatisfactory to him, the books and records of any such corporation, joint stock association, company, foreign banker, person or partnership, and may hear testimony and take proofs material for his information, either personally or he may appoint a commissioner by a written appointment under his hand and official seal for that purpose. Every commissioner so appointed shall be authorized to make such examination and take such testimony and hear such proofs and report the proofs and testimony so taken and the. result of his examination so made and the facts found by him to the comptroller. The comptroller shall, therefrom, or from any other data which shall be satisfactory to him, order and state an account for the tax due the state, together with the expenses of such examination and the taking of such testimony and proofs. Such expenses shall be fixed and adjusted by the comptroller. (Sec. 195, former sec. 192, Tax Law.)

Source: L. 1880, ch. 542, sec. 1, as amended by L. 1881, ch. 361 and secs. 11, 12, 13, as added by L. 1882, ch. 151, and amended by L. 1885, ch. 501, and L. 1894, ch. 562; L. 1882, ch. 409, secs. 322, 323, as amended by L. 1895, ch. 196.

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Comptroller not bound by corporation's report; burden on relator.— The comptroller is not bound by the report of the officers of a corporation as to the value of the stock, but may act as an assessor, and fix the value of the capital stock employed within the state of New York, according to information obtained or on his judgment, and his decision will not be dis

turbed unless clearly shown to be erroneous. People ex rel. Am. Axe & Tool Co. v. Roberts, 82 Hun, 313 (1894).

Evidence of comptroller's dissatisfaction with treasurer's appraisement. The fact that the comptroller makes a new appraisement, and rejects that made by the treasurer of a corporation, is sufficient evidence of dissatisfaction with the company's appraisement. People ex rel. Metropolitan S. Co. v. Kelsey, 101 App. Div. 248 (1905).

Notice of statement of tax; interest.-Upon auditing and stating every account for taxes or other charges under this article, the comptroller shall forthwith send notice thereof in writing to the person, partnership, company, association or corporation against whom the same is made, which notice may be mailed to the post-office address of such person, partnership, association, company or corporation. All accounts so audited and stated shall bear interest upon the total amount found due thereon to the state, for taxes, percentage, interest and other charges, from the expiration of thirty days after sending such notice until payment thereof shall be made. (Sec. 196, former sec. 193, Tax Law.)

Source: L. 1880, ch, 542, secs. 15, 16, as added by ch. 501, L. 1885, without change of substance.

Payment of tax and penalty for failure.- A tax imposed by section one hundred and eighty-two or one hundred and eighty-six of this chapter, shall be due and payable into the state treasury on or before the fifteenth day of January in each year. A tax imposed by section one hundred and eighty-four of this chapter on a transportation or transmission corporation, or by section one hundred and eighty-five, on elevated railroads or surface railroads not operated by steam shall be due and payable into the state treasury on or before the first day of August in each year. A tax imposed by section one hundred and eighty-seven of this chapter on an insurance corporation, shall be due and payable into the state treasury on or before the first day of June in each year. A tax imposed by section one hundred and eighty-eight or one hundred and eighty-nine shall be due and payable into the state treasury on or before the first day of September in each year. A tax imposed by section one hundred and ninety-one of this chapter on a for. eign banker shall be due and payable into the state treasury on or before February first in each year. If such tax in any case is not paid within thirty days after the same becomes due, or if the report of any such corporation is not made within the time required by this article, the corporation, association, joint stock company, person or partner. ship, liable to pay the tax, shall pay into the state treasury in addition to the amount of such tax, a sum equal to five per centum thereof, and one per centum additional for each month the tax remains unpaid, which sum shall be added to the tax and paid or collected therewith. Every corporation, association, joint stock company, person or partnership failing to make the annual report required by this article, or failing to make any special report required by the comptroller, within any reasonable time to be specified by him, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dollars for each day that such failure continues. Such tax shall be a lien upon and bind all the real and personal property of the corporation, joint stock company or association liable to pay the same from the time when it is payable until the same is paid in full. (Sec. 197, former sec. 194, Tax Law, as amended in 1901, chs. 118, 132 and 558.)

Source: L. 1881, ch. 361, secs. 4, 5, 6, 7; L. 1882, ch. 409, sec. 322, as amended by L. 1895, ch. 196; L. 1886, ch. 679, sec. 1, as amended by L. 1895, ch. 418.

Settlement by comptroller of tax after January 15th.The comptroller may settle an account for a tax imposed by section 182, Tax Law, after the 15th day of January in the year in which the tax becomes due. People ex rel. F. A. Stokes Co. v. Roberts, 90 Hun, 533 (1895).

Lien of tax on real and personal property.—The precise time at which the lien attaches does not appear to be fixed by the statute. Section 197 of the Tax Law provides that the tax is due and payable on or before the various dates mentioned therein. It also appears that such tax may be settled after the dates mentioned (People ex rel. Stokes Co. v. Roberts, supra). It is not unreasonable to suppose that it runs from the time mentioned in section 196, viz., from the day the tax is audited and stated, and notice thereof sent to the corporation or person chargeable therewith. This is on the theory applied in the local

taxation of real and personal property, when a tax is presumed to be due at the time it is fixed and extended on the tax rolls. Lathers v. Keogh, 109 N. Y. 583 (1888); Burr v. Palmer, 53 App. Div. 358 (1900).

Priority in payment of state tax from insolvent estate.State taxes are entitled to a priority in payment out of the funds of an insolvent corporation by a receiver appointed in proceedings to foreclose a mortgage on the company's property. Central Trust Co. v. N. Y. C. & H. R. R. Co., 110 N. Y. 250 (1888). In a recent case where the property of an insolvent corporation was operated by the receiver pendente lite, and franchise taxes were levied during the time of such operation, it was held that the plaintiff who bought the property at a foreclosure sale “subject to all taxes which might be levied thereon at the time of the sale,” had taken the property subject to such lien, and that the state's taxes were paramount to all prior encumbrances. N. Y. Terminal Co. v. Gaus, 204 N. Y. 512 (1912).

See also Part I, Local Taxation, at end of Chapter XVI, for references on this subject.

CHAPTER XI.

REMEDIES, REVISION AND READJUSTMENT OF Tax. CERTIORARI.

Written application to be filed within one year. The amendment of 1907 to the Tax Law of 1896 evidently assumes that written application for revision must be made, for it requires it to be filed. The former statute only provided that an "application” be made, leaving the precise character thereof in doubt. The application must be filed within one year from the time the account is stated.

The present provisions of the Tax Law in relation to revision by the comptroller read as follows:

Revision and readjustment of accounts by comptroller.-If an application be filed with the comptroller by the party against whom the account is stated or by the attorney-general within one year from the time any such account shall have been audited and stated, the comptroller may at any time, upon notice thereof sent to the person, partnership, company, association or corporation against whom it is stated, revise and readjust such account, and if it shall be made to appear upon any such application by evidence submitted to him or otherwise, that any such account included taxes or other charges which could not have been lawfully demanded, or that payment has been legally* made or exacted of any such account, 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 or resettlement upon the accounts for taxes of or against any such person, partnership, company, association or corporation. Such credit, whether allowed before or after the passage of this chapter, may be, by the person, partnership, company, association or corporation in whose favor it is allowed, assigned to a person, partnership, company, association or corporation liable to pay taxes under article nine of this chapter and the assignee of the whole or any part of such credit on filing with the comptroller such assignment shall there. upon be entitled to credit on the books of the comptroller for the amount thereof on the current account for taxes of such assignee in

So in the original.

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