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concededly irrelevant matter to be stricken out. People ex rel. Joline v. Willcox, 134 App. Div. 563.
Burden of proof.-Unless it clearly and conclusively appears that the valuation was erroneous, the decision of the comptroller is conclusive and will not be set aside. People ex rel. Roebling's Sons' Co. v. Wemple, 138 N. Y. 582 (1893); see, also, People ex rel. Am. Contracting Co.v. Wemple, 60 Hun, 225; citing People ex rel. Osgood v. Tax Comm’rs, 99 N. Y. 154 (1885); People ex rel. West F. I. Co. v. Davenport, 91 N. Y. 574 (1883); People ex rel. Dann v. Williams, 36 N. Y. 441 (1867); People ex rel. Central Park, etc., R. R. Co. v. Tax Comm'rs, 21 N. Y. St. Rep. 358; People ex rel. P. R. R. Co. v. Tax Comm'rs, 104 N. Y. 240 (1887); affirmed 129 N. Y. 558; People ex rel. Bklyn El. R. R. Co. v. Roberts, 90 Hun, 537; People ex rel. Am. Axe & Tool Co. v. Roberts, 82 Hun, 313; People ex rel. Edison El. Co. v. Campbell, 88 Hun, 530; affirmed on this point in 148 N. Y. 759; People ex rel. Stokes v. Roberts, 90 Hun, 533; People ex rel. Western Co. v. Campbell, 145 N. Y. 587; People ex rel. Seth Thomas Clock Co. v. Wemple, 133 N. Y. 323.
The burden rests upon the relator to show error or mistake in reviewing the determination of the comptroller. People ex rel. Bklyn El. R. R. Co. v. Roberts, 90 Hun, 537 (1895); People ex rel. Western Elec. Co. v. Campbell, 80 Hun, 466 (1894); People ex rel. A. C. & D. Co. v. Wemple, 129 N. Y. 558 (1892); People ex rel. Osgood et al. v. Comm’rs, 99 N. Y. 154 (1885); People ex rel. Am. Axe & Tool Co. v. Roberts, 82 Hun, 314 (1894); People ex rel. Roebling's Sons' Co. v. Wemple, 138 N. Y. 582 (1893); People ex rel. Gramercy Co. v. Roberts, 91 Hun, 146 (1895).
The determination and appeal therefrom.-When the Appellate Division reverses a determination of the comptroller, not as to the amount of the corporation's property held within the state, but as to the taxable character of a part of it, a question of law is presented, reviewable by the Court of Appeals. People ex rel. Commercial Cable Co. v. Morgan, 178 N. Y. 433 (1904); reversing 86 App. Div. 577.
In reviewing the decision of the comptroller, the Appellate Division is not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. People v. Campbell, 88 Hun, 544 (1895).
It is the duty of the comptroller upon an application for revision and readjustment to make his determination upon the evidence taken at the original hearing and to send written notice of such determination to the corporation, as required by section 196, notwithstanding the corporation refuses to produce additional evidence where the comptroller declines to make a revision and readjustment unless further examination is had. People ex rel. Studebaker v. Knight, 66 App. Div. 150 (1901).
Under the provision of section 199, that "the comptroller shall return on such certiorari, the accounts and all the evidence before him on such application,” if the relator, instead of producing witnesses, furnishes affidavits which are received without objection by the comptroller and considered by him as evidence, the objection cannot be raised on appeal that such evidence was not competent. People ex rel. Harlan & H. Co. v. Campbell, 139 N. Y. 68 (1893).
Where the determination of an assessment against a foreign corporation is reversed, the Appellate Division will not undertake to modify the same, but will remand the case to the comptroller for further proceedings. People ex rel. Nat. E. & S. Co. 1. Miller, 112 App. Div. 880 (1906).
When remitted to comptroller for re-assessment.-On appeal to the Appellate Division, if the comptroller has adopted an erroneous method of appraisement, the matter should be remitted to him for reassessment and not corrected by the court, as testimony may be presented which might change the result. People ex rel. Natl. Enameling Co. v. Miller, supra.
Statute of limitations. The statute of limitations does not apply to proceedings to review the comptroller's determination under Chapter 542, Laws of 1880. People ex rel. Edison Elec. Light Co. v. Campbell, 88 Hun, 527 (1895).
Office of comptroller is continuous.—The office of the state comptroller is continuous, and a writ of certiorari is properly directed to the comptroller to review acts of a predecessor. In re Application of People to review Decision of Comptroller in Matter of Tax against Tiffany & Co., 80 Hun, 486 (1894).
Costs.-Section 2143 of the Code of Civil Procedure provides that costs not exceeding fifty dollars and disbursements may be awarded by the final order, in favor or against either party, in the discretion of the court.
The provisions with respect to costs contained in section 294 of the Tax Law are not applicable to certiorari proceedings to review the determination of the comptroller, but apply only in cases under the special statutory writ of section 290 of the Tax Law. And vice versa section 2143 of the Code does not apply to such cases. People ex rel. Niagara Falls Co. v. Russell, 57 Hun, 53 (1890).
Certiorari appeal.- In a certiorari proceeding to review the determination of a state comptroller, as to the amount of the capital stock of a corporation liable for the franchise tax, the Court of Appeals, after an affirmance by the Appellate Division of the comptroller's determination, will refuse to go into the question as to whether certain certificates issued by the corporation are in fact certificates of preferred stock or liabilities.
Where the question is a debatable one, as it was in this case, it would seem that the corporation is estopped by its declaration in the articles of incorporation, which alleges the issuance of preferred “debenture stock,” from asserting to the contrary that it is a liability in the certiorari proceeding. People ex rel. Cohn & Co. v. Miller, 180 N. Y. 16; affirming 94 App. Div. 564 (1904).
Refund of tax, when declared illegal on certiorari: interest. - There is no provision by which the comptroller may refund a deposit under this section of a tax declared illegal on certiorari. Recourse must therefore be had to the Legislature. In re Waterman Co. v. Gilman, 33 Misc. 569 (1901). It seems that interest should be allowed by the state on a refund. People ex rel. Knickerbocker Trust Co. v. Kelsey, 114 App. Div. 319
v (1906); Matter of O'Berry, 179 N. Y. 285.
COLLECTION OF STATE TAX ON CORPORATIONS; LIMITATION;
THE EXISTING LAW
Warrant for the collection of taxes. After the expiration of thirty days from the sending by the comptroller of a notice of a statement of an account as provided in this article, unless the amount of such account shall have been paid or deposited with the state treasurer, if an appeal or other proceedings have been taken to review the same, and the undertaking given as provided in this article, the comptroller may issue a warrant under his hand and official seal, directed to the sheriff of any county of the state, commanding him to levy upon and sell the real and personal property of the person, partnership, company, association or corporation against which such account is stated, found within his county for the payment of the amount thereof with interest thereon and costs of executing the warrant, and to return such warrant to the comptroller and pay to the state treasurer the money collected by virtue thereof, by a time to be therein specified, not less than sixty days from the date of the war. rant. Such warrant shall be a lien upon and shall bind the real and personal property of the person, partnership, company, association or corporation against which it is issued, from the time an actual levy shall be made by virtue thereof. The sheriff to whom any such warrant shall be directed shall proceed upon the same in all respects, with like effect, and in the same manner as prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for his services in executing the warrant, to be collected in the same manner. (Sec. 201, former sec, 198, Tax Law.)
Source: L. 1885, ch. 501; added as sec. 18 of ch. 542 of the Laws of 1880; L. 1882, ch. 409, sec. 322, as amended by L. 1894, ch. 196.
Information of delinquents. It shall be the duty of any person having knowledge of the evasion of taxation under this article by any corporation, association, joint stock company, partnership or person liable to taxation thereunder, or any omission on their part to make the reports required by this article, to make a written report thereof, to the comptroller of the state, with such information as may be in