2 [§ 222, Tax Law.] All taxes imposed by this article shall be due and payable at the time of the transfer, except as herein otherwise provided. Taxes upon the transfer of any estate, property or interest therein limited, conditioned, dependent or determinable upon the happening of any contingency or future event by reason of which the fair market value thereof cannot be ascertained at the time of the transfer as herein provided, shall accrue and become due and payable when the persons or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof." Such tax shall be paid to the state comptroller in a county in which the office of appraiser is salaried, and in other counties, to the county treasurer, and said state comptroller or county treasurer shall give, and every executor, administrator or trustee shall take, duplicate receipts from him of such payment as provided in section two hundred and thirty-six.* 1. Sec. 4, Chap. 483, Laws 1885-in effect June 30 of that year. Provided that all taxes unless otherwise provided, was due and payable at the death of the decedent. 2. Sec. 3, Chap. 399, Laws 1892-in effect May 1 of that year. Provided that all taxes shall be due and payable at the time of the transfer, unless the fair market value of decedent's estate could not be ascertained at that time, in which event the tax became due and payable when the person or corporation come into actual possession or enjoyment thereof. 3. Sec. 3, Chap. 399, Laws 1892-in effect May 1 of that year. Contained provision similar to the foregoing, relative to the accrual of the tax. See Matter of Babcock, 37 Misc. Rep. 455; affd., 81 App. Div. 645, as to this provision not conflicting with chapter 76, Laws of 1899, in reference to the immediate taxation of all estates in remainder. 4. Chap. 368, Laws 1905-in effect June 1 of that year. Amends § 222 When the Tax Accrues. 337. The General Subject. Section 4 of the Act of 1885 fixed the time when the tax became due and payable as the date of the decedent's death, unless otherwise provided. Section 1 of the Act of 1892 declared that the tax was imposed upon the transfer of any property, and section 3 of said act states that all taxes imposed by this act shall be due and payable at the time of the transfer, with a proviso relative to the accrual of the tax in cases where the value of the estate cannot be determined until the happening of some contingency or future event upon which such estate was dependent. This same provision was continued in section 222 of the Act of 1896, and was re-enacted in section 222 of the Act of 1905. 338. When the Tax Accrues. The time of the transfer by a will, or the intestate laws, is at the death of the decedent. Matter of Sloane, 154 N. Y. 109. The tax accrues at that time (Matter of Davis, 149 N. Y. 539; Matter of Westurn, 152 N. Y. 93-102; Matter of Seaman, 147 N. Y. 69-74; Matter of Green, 153 N. Y. 223-228), and the legatee is only entitled to his legacy, less the tax. Matter of Gihon, 169 N. Y. 443. 339. The State's Right to the Tax Is Coincident with the Devolution of Title. The right of the State to the tax is coincident with the devolution of title or interest, and the right of the section 222 by placing the provision of former section 222, relating to the lien of tax, under section 224, and the provision relating to the receipts to be given upon the payment of tax under section 236, and adds a provision, new only in phraseology, respecting the payment of tax and to whom same shall be made. On Future and Contingent Estates. § 222 State to exact a tax, as well as the obligations of the transferee to pay it depend not upon a formal, complete, and immediate change of title or possession, but upon the instant right to a beneficial share or interest subject only to the due administration of the estate. Matter of Ramsdill, 190 N. Y. 492. This same rule was recently enunciated by the Supreme Judicial Court of Massachusetts under a similar statute where that court said: "The rights of all parties, including the right of the commonwealth to its tax, vest at the death of the testator. It is true that the interest of a legatee is subject to an accounting, but it is an interest in the existing fund, and it is analogous to that of a cestui que trust." Chapin, (Mo. 1907) 82 N. E. Rep. 700. Kingsbury v. 340. Accrual, on Future and Contingent Estates. Since chapter 76, Laws of 1899, amending section 230 of the Act of 1896, in reference to the immediate taxation of all contingent estates in remainder and the payment of the tax forthwith out of the principal, the tax upon certain future and contingent estates accrues at the decedent's death. Matter of Vanderbilt, 172 N. Y. 69; Matter of Brez, 172 N. Y. 609. 341. Id.; When Appointment Is to Be Exercised over Fund. By chapter 284, Laws of 1897, amending section 220, relative to the exercise of a power of appointment, the tax in such cases does not accrue until the death of the donee of the power. Matter of Tucker, 27 Misc. Rep. 616; Matter of Stewart, 131 N. Y. 274; Matter of Delano, 176 N. Y. 486; Matter of Howe, 86 App. Div. 286, 83 N. Y. S. 825; affd., 176 N. Y. 570. § 222 When Life Tenant Can Use Principal. 342. Id.; on Certain Remainder Interests. The tax does not accrue on remainder interests where the life tenant is given the right to use any or all the principal for his support and maintenance, until the death of the life tenant. Matter of Babcock, 37 Misc. Rep. 445, 75 N. Y. S. 926; affd., 81 App. Div. 645, 81 N. Y. S. 1117. 343. Id.; on Remainder When Life Tenant Can Use Principal. Where the life tenant is given the right to use a part or all of the principal, the value of the remainder is the present value of the sum remaining as of the testator's death, but payable at the time of the life tenant's death, the tax accruing, however, at the testator's death. Matter of Meyer, 83 App. Div. 381, 82 N. Y. S. 329. 344. Id.; upon Renounced Legacy. The decision of the court in the Matter of Wolfe, 89 App. Div. 349, 85 N. Y. S. 949; affd., 179 N. Y. 599, to the effect that there is no taxable transfer of a legacy where the legatee renounces his legacy, does not affect the time when the tax accrues, but may affect the rate of tax, as it did in that case. 345. Time of Accrual of Tax on Decedent's Interest in Another Estate. In the estate of Delia M. Adams it appeared that decedent at the time of her death was entitled to a distributive share in the estate of Henry Adams, a resident of Michigan, and her next-of-kin who succeeded to her interest in the foreign estate did not receive their share of said estate for nearly a year after the Transfers under Trust Deed. § 222 death of decedent. The order assessing tax fixed the date of accrual of the tax as at the time when the interest of decedent in the estate of Henry Adams was paid to her next-of-kin in this State. The Comptroller appealed on the ground that the date of accrual of tax was the date of the death of Delia M. Adams. Surrogate Beckett sustained the appeal, holding that the devolution of the property and the right of the State to the transfer tax have their origin at the same moment of time (Matter of Ramsdill, 190 N. Y. 492; Matter of Westurn, 152 N. Y. 92), and as the interest of decedent in the estate of Henry Adams passed upon her death, eo instanti, to her next-of-kin (Matter of Sloane, 154 N. Y. 109), the date of accrual of the tax upon that property was the date of decedent's death. Matter of Adams, N. Y. Law Journal, October 24, 1908. 346. When Liability to Taxation Accrues under Trust Deed. Where a decedent transferred her personal property to a trust company of New Jersey, who held the funds without this State at the time of her death and a part of said fund has been determined subject to a transfer tax, the fact that the trust property was in another State at the time of her death, and the legal title thereto in the foreign trustee, did not affect the liability to taxation, such liability having accrued at the time of the transfer, no matter when it was imposed, which transfer was made in this State, where the property was situated, and the deceased resided. Matter of Keeney, 194 N. Y. 281. That the imposition of the tax after the death of the intestate is in conformity with the practice adopted in the Matter of Green, 153 N. Y. 223; Matter of Brandreth, 169 N. Y. 437; Matter of Cornell, 170 N. Y. 423. |