MATTHEW BENDER AND COMPANY

MATTHEW BENDER AND COMPANY

AUTHOR'S PREFACE TO SECOND EDITION.

The numeral exponents placed at the end of the important provisions of each section of the Transfer Tax Law referring to a corresponding number in the foot notes, showing the chapter, day and year when such provision first became a law and each amendment thereafter affecting it in any way, has proved a valuable feature, and all amendments to June 1, 1909, are so indicated.

The general arrangement of the sections of the Transfer Tax Law and the annotation of cases relating thereto as presented in the first edition, and which appears to be the most practical way of treating the subject matter of this law, has been followed and enlarged in many respects. The full text of the Decedent Estate Law, comprising the statute law of wills, descent and distribution, and the law relating to executors, administrators and trustees will be found in the appendix.

Over two hundred appeals involving transfers by both resident and nonresident decedents, by appointment, trust deeds, savings bank accounts in trust or in the joint names of a decedent and another, payable to either or the survivor of either, etc., have been taken from taxing orders since 1905. A large number of said appeals is the harvest from the amendment of 1905, placing educational, charitable, missionary, benevolent, hospital or infirmary corporations in the exempt class. While the corporations named are all

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AUTHOR'S PREFACE TO SECOND EDITION.

worthy, and the practice of making them legatees is a commendable one, yet the wisdom of extending the exemption is questionable. Aside from the sovereign right of the State to levy a tax of this nature for the support of government, the exacting of a tax or duty by the State upon the transfer of property by will or the intestate law is in reality a quid pro quo, and regardless of who may be the beneficiary, the State, at the time the transfer takes place, is entitled to the tax imposed for the care and protection it has given the property while it has been accumulating. So it would seem that whether the beneficiary is one of the corporations named or the members of the decedent's family, the reason for exempting transfers to the one and taxing the other is, to say the least, inconsistent, and affords an incentive each year for other corporations to knock at the legislative door for admission or to ask exemption through the leniency of the courts.

The author takes this opportunity of acknowledging his appreciation of the favorable reception given the first edition of his work by the members of the bar of this and other States. It is particularly gratifying to realize that the demand for the work exhausted the first edition the early part of the year.

GEORGE W. MCELROY.

ALBANY, N. Y., July, 1909.

INTRODUCTORY.

On the 10th of June, 1885, an act to tax gifts, legacies, and collateral inheritances in certain cases was passed in this State. This original act did not take effect until June 30, 1885 - the twentieth day after its final passage. Matter of Howe, 112 N. Y. 100. The scope of this act was extended from time to time until, in 1892, it was repealed, substantially re-enacted, and continued by chapter 399 of the Laws of that year, passed April 30th, entitled "An act in relation to taxable transfers of property." This act was, by General Laws (chap. 24), being chapter 908 of the Laws of 1896, repealed and substantially re-enacted as article 10 of the Tax Law, which article, as amended and construed from time to time, constituted the law of taxable transfers in this State until 1905.

The Act of 1905, in effect June 1st of that year, does not repeal chapter 908, Laws 1896, but substantially re-enacts the provisions of said act as theretofore amended, making, however, certain amendments. which were deemed expedient for the better enforcement of the provisions of this law, and specifically exempting transfers to educational, charitable, missionary, benevolent, hospital, or infirmary corporations, equally with a bishop or religious corporation, who have been so exempted since 1892.

The law of 1892 took effect May 1, 1892. Matter of Milne, 76 Hun, 328; Matter of Fayerweather, 143 N. Y. 114. Section 22 of that act defined the words "estate" and " property as meaning the property or interest of the decedent, and not the property or interest transferred to the individual beneficiary, and the Court of Appeals, in the Matter of Hoffman, 143 N. Y. 327, held that under this act it was the aggregate amount of the estate passing to taxable persons, and not the share of each individual legatee, which would determine thereafter whether the taxable limitation had been equaled or exceeded, thus changing the basis upon which estates prior to this act had been held taxable or exempt.

The Act of 1896 did not take effect until June 15th

of that year. Matter of Sloane, 154 N. Y. 109. By reason of combining the Transfer Tax Law with the General Tax Laws, and in view of the language of section 220, taxing only transfers to persons or corporations "not exempt by law from taxation," municipal corporations, mentioned in subdivision 3 of section 4 of chapter 908, Laws of 1896, and the corporations and associations mentioned in subdivision 7 of said section 4, claimed and received exemptions from the provisions of the Transfer Tax Law (Matter of Thrall, 157 N. Y. 46) until section 243 was added to the Tax Law by chapter 382, Laws of 1900, in effect April 11th of that year. Matter of Watson, 171 N. Y. 256.

These former successive laws have been held to be