
    In the Matter of Federated Cab Sales Corp., Petitioner, against Lazarus Joseph, as Comptroller of the City of New York, et al., Respondents.
   Determination confirmed, with $50 costs and disbursements.

Callahan, J.

(dissenting). It was literally provided by Local Law No. 78 of 1940 of the City of New York that the business tax for the 1939 as well as the 1940 privilege periods should be based on the amount of business actually done. The plain effect of this provision was to eradicate the arbitrary annualization formula contained in Local Law No. 103 of 1939 for fixation of the tax to be paid by those who did business for part of a year only.

That Local Law No. 78 of 1940 was not passed until about the close of the 1939 tax year, and after a date fixed for the filing of tentative returns for that year, would afford no sufficient reason for disregarding on the theory of statutory construction the plain letter of the 1940 statute in its application to 1939 taxes.

The deficiency asserted by respondents under Local Law No. 103 of 1939 is illegal and erroneous. Petitioner’s tax liability for the year 1939 should be measured as provided in Local Law No. 78 of 1940. The final determination of respondents should be modified accordingly, with costs to respondents.

Peck, P. J., Dore and Shientag, JJ., concur in decision; Callahan, J., dissents in opinion in which Cohn, J., concurs.

Determination confirmed with $50 costs and disbursements. No opinion.  