
    In the Matter of Edward H. Pattison et al., as Executors of Marguerite H. Paine, Deceased, Petitioners, v. Joseph H. Murphy et al., Constituting the State Tax Commission, Respondents.
    Supreme Court, Special Term, Albany County,
    May 31, 1961.
    
      Smith, Pattison, Sampson $ Jones for petitioners. Louis J. Lefkoivits, Attorney-General {Robert W. Bush of counsel), for respondents.
   Isadore Bookstein, J.

In this article 78 proceeding, petitioners seek to review a determination of respondents which rejected a claim for refund of 1958 State income taxes in the sum of $2,835.02, paid by them under protest.

Testatrix died August 7, 1958 and petitioners filed a resident decedent final New York State income tax report with respect to the income of testatrix from January 1, 1958 to August 7, 1958, under which there was a tax due of $2,835.02, which petitioners paid, as already indicated, under protest.

By chapter 60 of the Laws of 1959, under which the New York State income tax was placed on a withholding basis, the 1958 income tax of taxpayers was forgiven, except taxpayers who died during 1958.

Petitioners contend that forgiveness to one class and a failure to forgive the tax of those who died in 1958, violates several provisions of both the Federal and State Constitutions.

There were sound reasons for separate classifications of those who died during 1958 and of those who were alive on January 1, 1959, and such .separate and different classifications were a constitutional exercise of the powers of the Legislature. In my judgment, such classifications violated no provisions of either the Federal or State Constitutions.

Petition dismissed upon the merits.  