Gambar halaman
PDF
ePub
[blocks in formation]

collected the tax thereon. If any such legacy shall be charged upon or payable out of real property, the heir or devisee shall deduct such tax therefrom and pay it to the executor, administrator or trustee, and the tax shall remain a lien or charge on such real property until paid; and the payment thereof shall be enforced by the executor, administrator or trustee in the same manner that payment of the legacy might be enforced, or by the district attorney under section two hundred and thirty-five of this chapter. If any such legacy shall be given in money to any such person for a limited period, the executor, administrator or trustee shall retain the tax upon the whole amount, but if it be not in money, he shall make application to the court having jurisdiction of an accounting by him, to make an apportionment, if the case require it, of the sum to be paid into his hands by such legatees, and for such further order relative thereto as the case may require.3

381. The General Subject.

Section 2 of the Act of 1885, amended by chapter 713, Laws of 1887, made the tax and interest a lien upon the property transferred under section 1 of that act, and sections 4, 6, and 8 of said act contained provisions relating to the personal liability of the executors and administrators. The above provision including the personal liability of the executors, administrators and trustees first appeared in its present form in section 2 of the Act of 1892. It was included as one of the provisions of section 222 of chapter 908, Laws of 1896, and re-enacted as part of section 224 of chapter 368 of the Laws of 1905. The other provisions in section 224 (supra), are a revision of sections 6, 7, and 8 of the

3. Chap. 483, Laws 1885-in effect June 30 of that year. - Section 6 of the Act of 1885 contained provisions similar to the foregoing as to the manner in which the executor, etc., should collect the tax, which provisions were re-enacted as a part of section 5 of the Act of 1892 and section 224 of the Act of 1896.

§ 224

Certain Limitations Do Not Apply.

Act of 1885 as re-enacted in sections 222 and 224 of the Act of 1896, excepting the provisions in reference to the payment of the tax, which was re-enacted as a part of section 222 of the Act of 1905 (supra).

382. The Tax Is a Lien upon the Property until Paid.

A purchaser of real estate, in 1898, will not be compelled to take title to premises sold in foreclosure proceedings, where it appears that in 1893, when the owner of the premises died, they were subject to the mortgage foreclosed, and that the devisee of the premises, unrelated to decedent, had never paid the transfer tax upon the succession to him, as the tax remains a lien upon the property transferred until paid. Kitching v. Shear, 26 Misc. Rep. 436, 57 N. Y. S. 464.

383. The Two-year Limitation to Enforce Payment Does Not Apply.

Under the Act of 1885 Surrogate Ransom held that it was the settled law that this tax is upon the passing of property, upon the privilege of receiving it, and not upon the property itself, and therefore as it was a tax upon the devolution of property, section 384 of the Code of Civil Procedure, requiring all actions to recover a statutory penalty or forfeiture to be brought within two years after the cause of action accrues, did not apply to proceedings to enforce such a tax. Matter of Vanderbilt, 10 N. Y. S. 239-241.

384. Neither the Two nor Six-year Limitations Apply to This Statute.

Following the decision of Surrogate Ransom in the Matter of Vanderbilt, 10 N. Y. S. 239, Surrogate Fitzgerald held, that neither the two or the six-year statute

Former 282, Now § 245, post.

§ 224

of limitations are a defense to a proceeding to collect the transfer tax, as the tax is paid upon the devolution of the property and not upon the property itself. Matter of Crerar, 31 Misc. Rep. 481, 65 N. Y. S. 573; revd. on other points in 56 App. Div. 479, 67 N. Y. S. 795; Matter of Strang, 117 App. Div. 796.

385. Limitations Prescribed by Section 282 of the Tax Law.

By chapter 737 of the Laws of 1899, section 282 was added to the General Tax Laws of 1896, and this section provides as follows:

§ 282. Limitation of Time. The provisions of the code of civil procedure, relative to the limitation of time of enforcing a civil remedy, shall not apply to any proceeding or action taken to levy, appraise, assess, determine or enforce the collection of any tax or penalty prescribed by articles nine or ten of said chapter, and this act shall be construed as having been in effect as of date of the original enactment of the corporation and inheritance tax law, provided, however, that as to real estate in the hands of bona fide purchasers, the transfer tax shall be presumed to be paid and cease to be a lien as against such purchasers after the expiration of six years from the date of accrual. This act shall not affect any action or proceeding now pending.

Since the enactment of section 282, aforesaid, the court held, in the Matter of Moench, 39 Misc. Rep. 480, 80 N. Y. S. 222, that, assuming the transfer tax to be

66

a liability created by statute" and barred in six years under Code of Civil Procedure, section 382, subdivision 2, and that the tax could not have been enforced under chapter 399, Laws of 1892, until eighteen months after the death of the testatrix on January 12, 1893, a proceeding to collect it could have been taken at any time before July 12, 1900, and that before that

§ 224

Bona Fide Purchasers.

date chapter 737, Laws of 1899, had taken away the defense of the statute. See also Matter of Lord, N. Y. Law Journal of June 3, 1905, where Surrogate Thomas holds that the statute of limitations was not a bar to the proceedings to assess the tax, the decedent having died in January of 1892.

Section 282, aforesaid, was repealed by chapter 62, Laws of 1909, being chapter 60 of the Consolidated Laws, and section 245 (post), providing for a similar limitation of time, was added to the Transfer Tax Law by said chapter 62 of the Laws of 1909.

386. Only Applies to Bona Fide Purchasers.

The provision of section 282 of the Tax Law providing that as to real estate in the hands of bona fide purchasers the transfer tax shall be presumed to be paid and cease to be a lien as against such purchasers after the expiration of six years from the accrual of the tax is simply for the benefit of innocent purchasers, and can give no rights of exemptions to executors, administrators, trustees, or beneficiaries. The representatives have no right to permit property on which the State has a lien for taxes to pass out of their possession or control until the lien has been discharged, and the property comes into the possession of the beneficiaries subject to the lien, and hence the Legislature has power to remove the bar of the statute of limitations in such cases. Matter of Strang, 117 App. Div. 796.

387. Liability of Purchasers of Real Property within Six Years from Accrual of Tax.

In the Matter of Strail, affd. 128 App. Div. 908, it appears that the decedent died December 11, 1896, intestate leaving a brother and sister and several

Liability of Purchasers of Real Property.

§ 224

nephews and nieces. She left personal property valued at $542.75 and real estate valued at $2,300. Transfer tax proceedings were instituted upon her estate, and an order entered taxing the portion of decedent's real property passing to the nephews and nieces under the statute of descent. It appears that the personal property of decedent was not sufficient to pay her debts, and proceedings were instituted by the administrator in December, 1897, for the sale of the real property for payment of debts, and on October 27, 1898, the real property was purchased by John Kelly and John Kelly, Jr., and a distribution of the proceeds was made under the direction of the surrogate. The State Comptroller had no notice of these proceedings nor of the judicial settlement of the account of the administrators. The tax imposed in the transfer tax proceeding remained unpaid, and in May, 1904, the district attorney of Onondaga county, at the request of the State Comptroller, instituted the proceedings provided for by section 235 of the Tax Law, citing the purchasers of the real property aforesaid to show cause why the tax should not be paid. Evidence was taken before the surrogate, and on July 14, 1905, he entered an order which adjudged in part" that said John Kelly and John Kelly, Jr., are not liable for the payment of said transfer tax upon the estate of Polly Strail, deceased, or any part thereof, and that the same or any part thereof is not a lien upon the said real estate of Polly Strail, deceased, purchased by them." The Comptroller appealed from the portion of the finding to the effect that the tax was not a lien upon the real estate, claiming that the tax assessed was, under section 224 of the Tax Law, a valid lien on the decedent's real estate at the time of the sale and that the purchasers were not bona fide purchasers

« SebelumnyaLanjutkan »