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formation or matter which the comptroller may require to be included therein, and he may prescribe the form in which such reports shall be made and the form of oath thereto. When so prescribed such form shall be used in making the report. The comptroller may require at any time a further or supplemental report under this article, which shall contain information and data upon such matters as the comptroller may specify.
[Revisers' Note.-L. 1881, chap. 361, § 1; R. S., 8th ed., 1152,
L. 1881, chap. 361, § 5; R. S., 8th ed., 1154, as am. by
L. 1895, chap. 425,
L. 1881, chap. 361, §7; R. S., 8th ed., 1155,
L. 1882, chap. 409, § 322; R. S., 8th ed., 1582, as am. by
L. 1894, chap. 196,
L. 1886, chap. 679, § 2; R. S., 8th ed., 1696,
without change of substance, except that all reports are required to be verified.]
§ 192. Powers of comptroller to examine into affairs of corporation. In case any report required by any of the preceding sections of this article shall be unsatisfactory to the comptroller, or if any such report is not made as herein required, the comptroller is authorized to make an estimate of the dividends. paid by such corporation and the value of the capital stock employed by it, from any such report or from any other data, and to order and state an account according to the estimate and value so made by him for the taxes, percentage and interest due the state from such corporation, association, joint-stock company, person or partnership. The comptroller shall also have power to examine or cause to be examined in case of a failure to report or in case the report is unsatisfactory to him, the books and records of any such corporation, joint-stock association, company, foreign banker, person or partnership, and may hear testimony and take proofs material for his information, either personally or he may appoint a commissioner by a written appointment under his hand and official seal for that purpose. Every commissioner so appointed shall be authorized to make such examination and take such testimony and hear such proofs and report the proofs and testimony so taken and the result of his examination so made and the facts found by him to the comptroller. The comptroller shall, therefrom, or from any other data which shall be satisfactory to him, order and state an account for the tax due the state, together with the expenses of
such examination and the taking of such testimony and proofs. Such expenses shall be fixed and adjusted by the comptroller.
[Revisers' Note.-L. 1881, chap. 361, §§ 1, 11, 12, 13; R. S., 8th ed., 1152,
L. 1882, chap. 409, §§ 322, 323; R. S., 8th ed., 1582, as am. by
L. 1895, chap. 196,
without change of substance. The power to subpoena witnesses and the punishment for contempt provided by L. 1881, ch. 361, § 13, is fully covered by code civil procedure, § 854ff.]
See notes to § 190.
§ 193. Notice of statement of tax; interest.-Upon auditing and stating every account for taxes or other charges under this article, the comptroller shall forthwith send notice thereof in writing to the person, partnership, company, association or corporation against whom the same is made, which notice may be mailed to the post-office address of such person, partnership, association, company or corporation. All accounts so audited and stated shall bear interest upon the total amount found due thereon to the state, for taxes, percentage, interest and other charges, from the expiration of thirty days after sending such notice until payment thereof shall be made.
[Revisers' Note.-L. 1885, ch. 501, §§ 15, 16; R. S., 8th ed., p. 1157,
without change of substance, but extended to foreign bankers taxable under the article.]
§ 194. Payment of tax and penalty for failure.-A tax imposed by sections one hundred and eighty-two or one hundred and eighty-six of this chapter, shall be due and payable into the state treasury on or before the fifteenth day of January in each year. A tax imposed by section one hundred and eighty-four of this chapter on a transportation or transmission corporation, or by section one hundred and eighty-five, on elevated railroads or surface railroads not operated by steam, or by section one hundred and eighty-seven of this chapter on an insurance corporation, shall be due and payable into the state treasury on or before the first day of August in each year. A tax imposed by section one hundred and eighty-eight of this chapter on a foreign banker shall be due and payable into the state treasury on or before February first in each year. If such tax in any case is not paid within thirty days after the same becomes due, or if the report of any such corporation is not made within the time required by this article, the corporation, association, joint-stock company,
person or partnership, liable to pay the tax, shall pay into the state treasury in addition to the amount of such tax, a sum equal to five per centum thereof, and one per centum additional for each month the tax remains unpaid, which sum shall be added to the tax and paid or collected therewith. Every corporation, association, joint-stock company, person or partnership failing to make the annual report required by this article, or failing to make any special report required by the comptroller, within any reasonable time to be specified by him, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dollars for each day that such failure continues. Such tax shall be a lien upon and bind all the real and personal property of the corporation, joint-stock company or association liable to pay the same from the time when it is payable until the same is paid in full.
[Revisers' Note.-L. 1881, chap. 361, §§ 4, 5, 6, 7; R. S., 8th ed., 1154,
L. 1882, chap. 409, § 322; R. S., 8th ed., 1582, as am. by
L. 1895, chap. 196,
L. 1886, chap. 679, § 1; R. S., 8th ed., as am. by
L. 1895, chap. 418.
The existing law in each instance imposes a penalty of ten per centum if the tax is not paid within thirty days after it becomes due. This section of the revision imposes a penalty of five per centum if the tax is not paid within thirty days after it becomes due, and one per centum for each month throughout the calendar year, and interest, if not paid during such year.]
Amended by senate committee so as to include corporations taxable under sections 185, 186 of this chapter.
Penalty of 80 per cent. added to the tax of an electric-light company by the comptroller of the State because of default in making report, and of 10 per cent. for succeeding years,― reduced to a uniform 10 per cent. annually. People ex rel. Illuminating Co. v. Wemple, 39 N. Y. St. Repr. 605; S. C., 15 N. Y. Supp. 711.
195. Revision and readjustment of accounts by comptroller. The comptroller may, at any time within one year from the time any such account shall have been audited and stated, and notice thereof sent to the person, partnership, company, association or corporation against whom it is stated, revise and readjust such account upon application therefor by the party against whom the account is stated or by the attorney-general, and if it shall be made to appear upon any such application by evidence submitted to him or otherwise, that any such account included taxes or other charges which could not have been law
fully demanded, or that payment has been legally made or exacted of any such account, he shall resettle the same according to law and the facts, and charge or credit, as the case may require, the difference, if any, resulting from such revision or resettlement upon the accounts for taxes of or against any such person, partnership, company, association or corporation. The comptroller shall forthwith send written notice of its determination upon such application to the applicant, which notice may be sent by mail to his post-office address.
[Revisers' Note.- L. 1881, chap. 361, § 19; R. S., 8th ed., supp., 3257, as added, L. 1889, chap. 463,
without substantial change, except that the readjustment must be within one year after notice of the audit of the account has been served on the person or corporation, instead of "at any time."]
Heretofore no limitation of time was prescribed for revision. People ex rel. Edison, etc., Co. v. Wemple, 133 N. Y. 617 (1892).
See notes under § 190.
Under Laws 1889, chap. 463, permitting the State comptroller to revise accounts for taxes illegally paid, a manufacturing corporation is entitled to revision and a resettlement of a tax which it has paid when in fact it was not subject to taxation, and the fact that such payments were not made under coercion will not deprive the corporation of its remedy, nor is the report made by the corporation to the comptroller for the purpose of enabling him to make a valuation of the stock a "stipulation" which will prevent a recovery back of the tax. People ex rel. Edison Electric & Illuminating Co. v. Wemple, 141 N. Y. 471; S. C., 57 N. Y. St. Repr. 609 (1894).
A party seeking revision or readjustment of a tax against a corporation settled by the comptroller, must produce evidence showing the error of the settlement. People ex rel. Postal Telegraph Co. v. Campbell, 70 Hun, 507; S. C., 52 N. Y. St. Repr. 790; 24 N. Y. Supp. 208 (1893).
Where a corporation applies for a rehearing by the comptroller because of an alleged over-valuation of its capital stock, it should submit an inventory of all the real estate and personal property owned by it within the State, and offer satisfactory proof that it owns no other property here except as set out in the inventory. People ex rel. Axe & Tool Co. v. Roberts, 82 Hun, 313; S. C., 63 N. Y. St. Repr. 574; 31 N. Y. Supp. 245 (1894).
The decision rendered by the comptroller on the application to revise and readjust a tax has the effect of a judgment rendered by a court. People ex rel. Am. Surety Co. v. Campbell, 64 Hun, 417; S. C., 46 N. Y. St. Repr. 228; 19 N. Y. Supp. 652 (1892).
After such a hearing and a decision on the merits the judgment rendered by the comptroller should not be again opened. Id.
Taxes once paid into the treasury cannot be refunded without an appropriation. People ex rel. Edison Electric Illuminating Co. v. Wemple, 133 N. Y. 617 (1892).
The comptroller may resettle the account and credit or charge the difference, if any, on the current account. Id.
196. Review of determination of comptroller by certiorari. The determination of the comptroller upon any application made to him by any person, partnership, company, association or corporation for a revision and resettlement of any account, as prescribed in this article, may be reviewed both upon the law and the facts, upon certiorari by the supreme court at the instance of any person, partnership, company, association or corporation affected thereby, and in the name and on behalf of the people of the state. For the purpose of such review the comptroller shall return, on such certiorari, the accounts and all the evidence before him on such application, and all the papers and proofs upon the original statement of such account and all proceedings thereon. If the original or resettled accounts shall be found erroneous or illegal, either in point of law or of fact, by the supreme court, upon any such review, the accounts reviewed shall then be corrected and restated, and from any determination of the supreme court upon any such review, an appeal to the court of appeals may be taken by either party.
[Revisers' Note.-L. 1881, chap. 361, § 20; R. S.. 8th ed., supp., 3257, as added, L. 1889, chap. 483,
without change of substance.]
See notes under § 190.
Upon certiorari to review the action of the comptroller in taxing a corporation, the return is conclusive in the Court of Appeals. People ex rel. Roebling's Sons Co. v. Wemple, 138 N. Y. 582; S. C., 53 N. Y. St. Rep. 297 (1893). The comptroller's determination as to the amount of the tax should not be disturbed unless it clearly appears to be erroneous. Id.
Relator filed reports and paid the tax assessed to the comptroller. Afterward it was determined that relator was a manufacturing corporation and exempt from the tax and it was sought to recover back the tax so paid. Held, that the payment was, in law, a voluntary one, and certiorari to review the action of the comptroller in refusing to pay back the tax could not be maintained. People ex rel. Edison Electric Illuminating Co. v. Wemple, 69 Hun, 367; S. C., 52 N. Y. St. Repr. 786; 23 N. Y. Supp. 661 (1893).
197. Regulations as to such writ of certiorari.- No certiorari to review any audit and statement of an account or any determination by the comptroller under this article, shall be