Property and Interests Taxable.

Reference to other taxable transfers, including the property of nonresidents, see Chapters V, VI, and VII.

33. Taxable Transfers.

Taxable Transfers.

§ 220

[§ 220, Tax Law.] A tax shall be and is hereby imposed upon the transfer of any property, real1 or personal,2 of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, in the following cases:

1. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed of the property while a resident of the state.

2. When the transfer is by will or intestate law, of property within the state, and the decedent was a nonresident of the state at the time of his death.

3. Whenever the property of a resident decedent, or the property of a nonresident decedent within this state, transferred by will, is not specifically bequeathed or devised, such property shall, for the purposes of this article, be deemed to be transferred proportionately to, and divided pro rata among all the general legatees and devisees named in said decedent's will, including all transfers under a residuary clause of such will."

4. When the transfer is of property made by a resident or by a nonresident when such nonresident's property is within this state, by deed, grant, bargain," sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to

7

1. Chap. 41, Laws 1903-in effect March 16 of that year. - First taxes transfers of real property to 1-per cent. class.

2. Chap. 215, Laws 1891-in effect April 20 of that year. — First taxes transfers of personal property to 1-per cent. class.

3. Chap. 713, Laws 1887-in effect June 25 of that year. property transferred "in trust or otherwise."

- Included

First

Added

4. Chap. 713, Laws 1887-in effect June 25 of that year. law taxing property in this State of nonresident decedents.

5. Chap. 310, Laws 1908-in effect May 18 of that year. this clause to section 220. (Former Subd. 2a.)

6. Chap. 399, Laws 1892-in effect May 1 of that year. word "bargain" to subdivision 3 of section 1 (now § 220).

- Added the

7. Chap. 215, Laws 1891-in effect April 20 of that year. First taxes transfer "made in contemplation of death."

take effect in possession or enjoyment at or after such death.8

5. When any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof by any such transfer, whether made before or after the passage of this chapter."

6. Whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this chapter, such appointment when made shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will; and whenever any person or corporation possessing such a power of appointment so derived shall omit or fail to exercise the same within the time provided therefor, in whole or in part, a transfer taxable under the provisions of this chapter shall be deemed to take place to the extent of such omission or failure, in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure.10

7. The tax imposed hereby shall be at the rate of five per centum upon the clear market value of such property, except as otherwise prescribed in the next section.11

8. Chap. 483, Laws 1885-in effect June 30 of that year. - Taxes transfers made by deed, grant, sale, or gift "to take effect at or after death" of donor, etc.

9. Chap. 399, Laws 1892-in effect May 1. of that year. Section 1 first contained this provision.

10. Chap. 284, Laws 1897-in effect April 16 of that year. — Added subdivision 5 to section 220, relative to transfers upon exercise of power of appointment. (Now Subd. 6.)

Substan

11. Chap. 483, Laws 1885-in effect June 30 of that year. tially enacted this provision and it has since been retained in each amendment or re-enactment of the statute effecting taxable transfers.

Nature of the Tax; Procedure.

34. The Nature of the Tax.

§ 220

The earlier decisions held that the taxes imposed by the act are special and not general; and the rule is that special tax laws are to be construed strictly against the government and favorably to the taxpayers. A citizen cannot be subjected to special burdens without clear warrant of law. Any doubt should be resolved in favor of the taxpayer. Matter of Enston, 113 N. Y. 174; Matter of Vassar, 127 N. Y. 1; Matter of Fayerweather, 143 N. Y. 114; Matter of Harbeck, 161 N. Y. 211. Courts have no general powers of jurisdiction in these proceedings; the only authority is to be found in the act itself. The jurisdiction is special and specially conferred by the act. Matter of Smith, 40 App. Div. 480, 58 N. Y. S. 128.

35. Procedure; Statute Governing.

The method of procedure in a proceeding for the ascertainment and determination of a transfer tax is controlled by the statute on the subject in force at the time of the institution of the proceeding, although the tax itself and the rights of the parties are controlled by an earlier statute. Therefore, in a proceeding instituted in 1896, upon the determination of the particular estate, to ascertain the amount of tax upon a legacy in remainder under the will of the testator, who died in 1890, the rights of the parties depend upon the statute as amended in 1887 (chapter 713), but the method of procedure depends upon the statute of 1892 (chapter 399). Matter of Sloane, 154 N. Y. 109; Matter of Davis, 149 N. Y. 539.

36. The Word "Property" Is Not Limited to the Definition Thereof under the General Tax Law.

Subdivisions 3 and 5 of section 2 of the General Tax Law of the State of New York (chap. 908, L. 1896) (see section 2 of article 1, chapter 60, of the Consolidated Laws, being chapter 62, Laws of 1909) defines what shall be included in the terms "land," "real estate," and "real property," also the terms “personal estate" and "personal property."

The courts have held, however, that these definitions did not limit the property, the transfer of which is subject to taxation under the law taxing taxable transfers. In the Matter of Knoedler, 140 N. Y. 377, the court says: ،، The argument is made that it is only property which is liable to taxation under the General Tax Law of the State which can be taxed under the act relating to taxable transfers, The Taxable Transfer Law has no reference or relation to the general law. The two acts are not in pari materia. While the object of both is to raise revenue for the support of the government, they have nothing else in common. Nearly sixty years intervened between the passage of the earlier and the later statute, and the latter was enacted under different conditions from the former. It taxes the right of succession to property, and measures the tax in the method specifically prescribed. All property having an appraisable value must be considered, whether it is such as might be taxed under the general law or not. Many kinds of property might be enumerated which are not assessable under the general law, but which are appraisable under the Collateral Inheritance Act."