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§ 231

Determination of Surrogate.

625. Determination of Surrogate.

[§ 231, Tax Law.] From such report of appraisal and other proof relating to any such estate before the surrogate, the surrogate shall forthwith, as of course, determine the cash value of all estates and the amount of tax to which the same are liable;1 or the surrogate may so determine the cash value of all such estates and the amount of tax to which the same are liable, without appointing an appraiser.2

The superintendent of insurance shall, on the application of any surrogate, determine the value of any such future or contingent estates, income or interest therein limited, contingent, dependent or determinable upon the life or lives of persons in being, upon the facts contained in any such appraiser's report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted

therein is correct.3

The surrogate shall immediately give notice, upon the determination by him as to the value of any estate which is taxable under this article, and of the tax to which it is liable, to all persons known to be interested therein, and shall immediately forward a copy of such taxing order to the state comptroller. The surrogate shall also forward to the state comptroller copies of all orders entered by him in relation to or affecting in any way the transfer tax on any estate, including orders of exemption."

1. Chap. 483, Laws 1885-in effect June 30 of that year. Section 13 provided that the surrogate should determine the value of the estate forthwith from the report of the appraiser, etc.

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By Chap. 399 Laws 1892-in effect May 1 of that year. 13 provided that from the report of the appraiser, etc., the surrogate shall forthwith 66 as of course determine the cash value, etc.

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2. Chap. 399, Laws 1892-in effect May 1 of that year. First provided that the surrogate could determine the cash value and amount of tax without appointing an appraiser.

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3. Chap. 713, Laws 1887-in effect June 25 of that year. ing section 13 of the Act of 1885, first enacted this provision. 4. Chap. 483, Laws 1885- in effect June 30 of that year.13 required the surrogate to give notice by mail to all interested parties as soon as he had assessed the tax.

5. Chap. 368, Laws 1905-in effect June 1 of that year. · - Requires the surrogate to forward copy of the taxing order to the State Comp troller. (New.) Prior to this the surrogate was only required to send the State Comptroller a notice of the assessment.

6. Chap. 368, Laws 1905-in effect June 1 of that year. enacted this provision of section 231.

First

Surrogate Is the Taxing Officer.

§ 231

If, however, it appear at any stage of the proceedings that any of such persons known to be interested in the estate is an infant or an incompetent, the surrogate may, if the interest of such infant or incompetent is presently involved and is adverse to that of any of the other persons interested therein, appoint a special guardian of such infant; but nothing in this provision shall affect the right of an infant over fourteen years of age or of any one on behalf of an infant under fourteen years of age to nominate and apply for the appointment of a special guardian for such infant at any stage of the proceedings."

626. Value of the Estate and Amount of Tax, How Determined.

Since the Act of 1892 the statute has presented two methods of determining the cash value of all estates, and the amount of tax to which the same are liable.

First. From the report of the appraiser, and other proof before the surrogate relating to such estate, the surrogate shall forthwith, as of course, determine the cash value thereof and the amount of tax; or,

Second. The surrogate may so determine the cash value of all such estates and the amount of tax, without appointing an appraiser. (§ 231.)

The general practice is, however, to refer the appraisal of the estate to the official appraiser.

627. The Surrogate Is the Assessing and Taxing Officer.

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In either event, the surrogate is, in effect, first made the assessing and taxing officer, who represents the 7. Chap. 672, Laws 1899- - in effect May 25 of that year. Added the provision in reference to the appointment of a guardian, etc.,- if it appears at this" stage of the proceedings that any of the interested parties are infants. See former section 232. It is not clear whether the reference to "this stage of the proceedings" referred to the provision in reference to an appeal or the provision in reference to the surrogate giving notice of his determination of tax to all interested parties, as the provision in reference to the appointment of guardian immediately follows both of these provisions.

By Chap. 368, Laws 1905 — in effect June 1 of that year. Any doubt as to the provision to which the former provision in reference to appointing a guardian referred to was taken away, by this act providing for the appointment of a guardian at “any" stage of the proceedings.

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State, and enters an order fixing the tax "as of course," and from this determination an appeal lies to the surrogate sitting as a judge, when for the first time the proceeding takes on a judicial character. Weston v. Goodrich, 86 Hun, 194, 33 N. Y. S. 382; Matter of Wolfe, 137 N. Y. 205.

628. Meaning of the Phrase "as of Course."

The phrase" as of course" relates to the practice rather than to the law in reference to the entry of the order determining the amount of tax, and means that when the report of the appraiser is filed the surrogate is to proceed with the entry of the order without the intervention of any one. Matter of Fuller, 62 App.

Div. 428-432.

629. The Taxing Order Is the Order of the Surrogate's Court.

Assuming that a surrogate, in fixing a transfer tax and making the decree assessing it, does not act as surrogate, but simply as a taxing officer, yet the decree, upon the taxation, becomes a decree or order of his court. Matter of Scrimgeour, 80 App. Div. 388, 80 N. Y. S. 636; affd., 175 N. Y. 507.

630. Surrogate in Assessing a Transfer Tax Acts Judicially and Not Ministerially.

A surrogate in assessing a transfer tax acts judicially and not ministerially. It is true that the power of taxation is one which belongs to the legislative department, and it is equally true that some of the functions of a taxing officer are ministerial, but it is well established by authority, that in determining the value of property assessed, the extent of claims by exemption, etc., the taxing officer or board acts judicially. (McLean v. Jephson, 123 N. Y. 142; Stanley

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v. Supervisors of Albany, 121 U. S. 535, 550; City of New York v. McLean, 170 N. Y. 374, 383.) Matter of Hull, 109 App. Div. 248, 95 N. Y. S. 819.

631. Notice of Determination, to Whom Given.

The surrogate shall immediately, upon the determination by him of the value of the estate and the tax to which it is liable, give notice of such determination to all persons known to be interested therein. (§ 231.) 632. Presumption of Notice.

In the absence of proof to the contrary, it will be presumed that the surrogate has given the required notice to all persons interested in the estate. Matter of Miller, 110 N. Y. 216. (Decision Act 1885.)

633. How Far a Judicial Determination Is Conclusive.

A judicial determination, whether it be by judgment, order or decree, is conclusive only in respect to the ground covered by it and the necessary facts passed upon to uphold it, and although it in express terms purports to determine a particular fact, yet, if such fact were immaterial, the judgment order or decree will not conclude the parties in reference thereto. It is only the material, relevant and necessary facts decided which are finally and conclusively determined.

Where, therefore, a former report of an appraiser determines the value of certain remainder interests which are held not presently taxable, such determination and order of the surrogate entered thereon are no bar to a subsequent proceeding to determine the value of the remainders upon the death of the life tenant, "without diminution for or on account of any valuation theretofore made of the particular estates for the purposes of taxation." (Section 230, Tax Law, as

§ 231

Order Affects Questions of Taxation Only.

amended by chapter 284, Laws 1897.) Matter of Mason, 120 App. Div. 738; affd. (Matter of Naylor), 189 N. Y. 556.

634. Id.; Binding upon the Question of Taxation Only.

In proceedings under the Inheritance Tax Act, the determination of the surrogate that a certain amount of property passed to a residuary legatee is binding upon the question of taxation only, and is not conclusive upon the rights of parties arising outside of the will. Amherst College v. Ritch, 151 N. Y. 282.

635. Id.; Final as to Known Property.

Where a surrogate, knowing of the existence of personal property, does not tax it, there is a determination that it is not taxable, which becomes final where there was no appeal from the order of taxation and it has stood for five years. Matter of Lansing, 31 Misc. Rep. 148, 64 N. Y. S. 1125.

636. Surrogate to Forward Copies of All Orders to Comptroller.

The surrogate, by the Act of 1905, is required to immediately forward to the State Comptroller a copy of the taxing order, also copies of all orders entered by him in relation to or affecting in any way the transfer tax on any estate, including orders of exemption. (§ 231.)

637. When Order Is Not Entered by Consent.

An order granted on sustaining and opposing affidavits, and after opposition of counsel, can hardly be called an order entered by consent. Matter of Post, 85 App. Div. 611, 82 N. Y. S. 1079.

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