
    The People of the State of New York ex rel. Wiebusch and Hilger Company (Limited), Relator, v. James A. Roberts as Comptroller of the State of New York, Respondent.
    
      Franchise tax upon corporations — amount of capital employed within the Btate — debts and, liabilities to be deducted—neither the value of imported merchandise in original packages, nor its proceeds, deducted?
    
    Where the Comptroller assesses against a corporation a franchise tax, uhder the provisions of section 11 of chapter 542 of the Laws of Í880, added thereto by-chapter 501 of the Laws of Í885, he must, in order to determine “the amount of capital stock employed within this State,” deduct from the actual value of the total gross assets of the corporation its- debts and liabilities, and from the result thus obtained should he further deducted the capital employed without . the State.
    
      Qucere, whether to the sum thus arrived at should be added the value of the good will of the business.
    As the tax is laid upon, the corporate franchise and business, and is not laid upon property,'a corporation is not entitled to a deduction, in .the tax, for.merchandise imported by it and remaining in the original packages, nor-for the pro- ' ceeds of sales of such- imported merchandise.
    . Certiorari--issued out of the Supreme Court, and attested on the 28th day of" April, 1896, directed .to James A.-Roberts, as Comptroller of the State of New York, commanding him to certify and return to the. clerk of the county" of Albany all and singular his proceedings relating to the taxation of ;the relator for the year ending November 1, 1895.
    
      Edmund L. Cole, for the relator.
    
      G. D. B. Hasbrouck, for the respondent.
   Putnam, J.:

This is a proceeding to review the determination of the Comptroller in assessing a corporate, franchise tax .against the relator for the year ending November. 1, .1895, at $290.10 .on the sum of $193,400, which he held was the value of its. property employed in this State.

Section 11 of chapter 542, Laws of 1880, as added thereto by chapter 501, Laws of 1885, provides as follows: “ The amount of capital stock which shall be the basis for tax under the provisions of section three of this act, in the case of every corporation * * * liable to taxation thereunder, shall be the amount of capital stock employed within this State. In making to the Comptroller the report in writing or certificate of estimate and appraisal of the capital stock of such corporation * * * provided for by the first section of this act, it shall be the duty of the president or treasurer thereof, as the case may be, to state specifically the amount of capital stock employed within this State of such corporation. * * * Whenever the Comptroller is dissatisfied with such report * * * of any corporation * * * whose capital is only partially employed within this State, he is authorized and empowered to ascertain, fix and determine the amount of capital employed within this State, and to settle and account for the taxes and penalties due the State thereon.”

The original report and the statement and affidavit on the part of the relator presented to the Comptroller on the rehearing, set forth that all the property, real and personal, employed by it in this State or elsewhere during the year in question amounted in value to the sum of $305,445.09, and that during said period its debts and liabilities averaged the sum of $189,343, leaving the net assets of the company $116,102.09, of which assets $18,102 was the value of the manufacturing property of the corporation at Bridgeport, Connecticut, which was employed in that State and not in ReW York, deducting which from the above-mentioned $116,902.09 leaves a balance of $98,000.09. Of the said assets also $30,700 was composed of merchandise imported and in original unbroken packages; accounts arising from the sale of original, unbroken packages imported by the company and a bank balance which arose from such sales. The relator, urged that said sum of $30,700 should be deducted from the said balance of $98,000.09, leaving the sum on which it should be assessed $67,300.09.

I am not prepared to. say that the Comptroller, in computing the franchise tax against relator, was compelled to exclude that portion of its assets invested in merchandise imported by it and remaining in the original, unbroken packages, or accounts of money arising from the sales thereof. The tax authorized by chapter 542, Laws of 1880, and the several acts amendatory and supplemental thereto, is a tax upon the corporation. franchise or business, and not a tax upon the property. Under doctrines stated in People-ex rel. Pennsylvania R. R. Co. v. Wemple (138 N. Y. 1); Home Ins. Co. v. New York (134 U. S. 594) and other authorities, it is probable that the Comptroller was authorized to assess the tax upon all, the property of the. relator employed in the State, although a portion thereof was 'merchandise imported by the company and remaining in the original packages, or was the"proceeds.of sales of such property, no: adverse discrimination being made in the imposition of the tax between such property and other property of a.similar character.- . But I am unable to' understand oil what ground the Comptroller, in determining the amount of corporate stock■ employed in this-State, excluded from consideration the" debts and liabilities of the relator. "The affidavit made by Charles F. Wiebusch, the president of the relator, contained a full and satisfactory statement of the property employed in this State and elsewhere. He showed that the value of the gross assets of the corporation' in this State and Connecticut, was $305,445.09, and that its. debts and liabilities during the year in question. were $189,343, leaving the net " assets $116,102.09* from, which should be deducted $18,102, capital employed in Connecticut, leaving the balance employed in this State $98,000.09.

Although Wiebusch was the president of the relator and its largest stockholder, I am unable to see On what ground the Comptroller could disregard his .statement and affidavit. Ho facts are stated - or shown in the papers authorizing such action on the part of the Comptroller.

Such being the case, it was shown on the proceeding for a rehearing that the capital stock employed by the relator in this State, after deducting the debts and liabilities,, was $98,000.09.

It will not be doubted that in estimating the amount of capital stock employed in the State by a corporation, under the provisions of section 11, chapter 542, Laws of 1880, as added thereto by chapter 501, Laws of 1885, the debts and liabilities of a corporation must be taken into account. ■ The ■ actual amount employed" is the net amount. “ In determining the actual capital of a corporation the purpose of general taxation, the true value of its corporate .assets, less the debts and obligations,, and not -the market value the shares, is the rule of assessment. (People v. Coleman, 126 N. Y. 433.) ” (Opinion of O’Brien, J., in People ex rel. Roebling’s Sons’ Co. v. Wemple, 138 N. Y. 582, 588.)

The same rule must apply to an assessment by the Comptroller nnder the act of 1880. The amount of the capital stock employed in this State by a corporation, under the provisions of the act in question, must be deemed , the actual value of such property, that is,, the gross value, deducting the .amount of its debts and liabilities! (See People ex rel. Seth Thomas Clock Co. v. Wemple, 133 N. Y. 323 ; People ex rel. Singer Mfg. Co. v. Wemple, 150 id. 46, 51.)

I conclude that the Comptroller should have assessed the franchise tax against the relator for the year in question on the sum of $98,000.09 (with perhaps the value of the good will, whatever it was, added) instead of $193,400; and hence that his determination should be reversed,, with fifty dollars costs and disbursements.

All concurred.

Determination of Comptroller reversed, with fifty dollars costs and disbursements.  