
    The People ex rel. The Consolidated Gas Co. of New York, Relator, v. Thomas L. Feitner et al., as Commissioner of Taxes and Assessments, Respondents.
    (Supreme Court, New York Special Term,
    June, 1902.)
    Tax — Unauthorized determination as to the value of capital stock — Market rate and dividends.
    Where there was no evidence before tax commissioners of the earnings of a corporation or of the market value of its capital stock the court vacated an assessment thereof made by them wherein the determination of the value of the total gross assets was stated by them to have been reached by estimating the sum upon the earnings supported by the market rate of the' stock, including the fixed charges of interest on the bonds and dividends paid on the stock.
    
      The market rate of a stock is a deceptive test, justifiable, if at all, by necessity only, and the declaration and payment of dividends upon stock afford no basis for an inference as to its value.
    Application to vacate an assessment.
    David McClure, for Consolidated Gas Co.
    George L. Rives, Corporation Counsel (David Rumsey, of counsel), for respondents.
   Fitzgerald, J.

This is an application to vacate an assessment for the reason, it is claimed, that the respondents erred in assessing the value of the capital stock of relator for the purposes of taxation for the year 1900. It was not disputed upon the argument that the tangible assets as distinguished from the franchise of the corporation constitute the only subject of taxation. The method of determining what property of a corporation is subject to taxation is provided for by section 12 of the Tax Law (L. 1896, ch. 908). To speak in general terms, it is the duty of the commissioners to ascertain the value of all the assets of a corporation, nontaxable as well as taxable, and from the amount so found to make certain deductions covering indebtedness, stocks of other corporations already taxed, real estate, and franchises. The amount remaining constitutes the sum upon which the tax should be computed. -According to the verified statement furnished by relator its total gross assets on the second Monday of January, 1900, were $43,469,067.95, the assessed value of the real estate, stock owned in other corporations paying a tax, and the indebtedness of the company combined, according to the same statement, amounted to $51,177,-688.21. The president of relator was subsequently examined by the commissioners and explained that during the preceding year his company purchased stock of the New York Mutual Gas Light Co. to the amount of $4,774,438; the Astoria Light, Heat & Power Co.’s stock to the amount of $500,000, which were paid for in cash, and also the stock of the New York Gas & Electric Light, Heat & Power Co., which latter stock was taken over in exchange for $36,000,000 of the debentures of the relator corporation exchangeable at pleasure of this company for its stock to the amount at par of $15,517,200. Respondents practically agree with relator as to the amount of debts, real estate and stocks already paying taxes and fix the value of the franchise at $13,950,000, but find the total gross assets to be $68,120,073.90; and the question to be determined is whether in this respect their action is supported by the facts disclosed. The return to the writ sets forth that “ we (the commissioners) determine that the value of the total gross assets estimating the sum upon the earnings of the company supported by the market rate of the share stock at $190, including the fixed charges of interest on their bonds and the dividends of 5£ per cent, on the stock, was $68,120,073.90.” There was no evidence of the earnings of the company before them, nor was there any of the market rate of the stock, and if that subject could be considered it has been characterized “ as a most deceptive and treacherous test,” justifiable, if at all, only upon the ground of necessity, “ because the better means or truer tests cannot be obtained.” People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 448. Neither does the fact that dividends were declared, of which there was evidence before the commissioners, warrant deductions in support of their finding, as it has been held in People ex rel. Edison Electric Illium. Co. v. Barker, 139 N. Y. 55, and in People ex rel. Edison General Electric Co. v. Barker, 141 N. Y. 251, that the fact that dividends are declared and paid forms no basis for an inference as to the value of the capital stock of the corporation. In the last-mentioned case the court said (at p. 255): “If they were dissatisfied with his (the treasurer’s) valuation of assets in gross they could have required them to be given in detail and so been enabled to judge of the fairness or unfairness of the valuation; but they were not justified in assuming that the treasurer, for the purpose of evading taxation, had falsely underestimated the assets, because of a recent dividend, the declaration of which did not necessarily involve the fact of an unimpaired capital.”

Assessment vacated, with costs.  