The People of the State of New York ex rel. George A. Fuller Company, Relator, v. Walter W. Law, Jr., and Others, Tax Commissioners, as and Constituting the State Tax Commission of the State of New York, Respondents

Third Department, September, 1923. The People of the State of New York ex rel. George A. Fuller Company, Relator, v. Walter W. Law, Jr., and Others, Tax Commissioners, as and Constituting the State Tax Commission of the State of New York, Respondents. Taxation — corporation franchise tax based on income — provision limiting valuation of corporate stocks to ten per cent of aggregate value of real and tangible personal property is unconstitutional — income derived from bonds owned by corporation should not be included in determining total net income. Certiorari issued out of the Supreme Court (after taking effect of the Civil Practice Act) and attested on the 24th day of December, 1921, directed to the respondents, commanding them to certify and return to the office of the county clerk of the county of Albany all and singular their proceedings had in affirming an assessment against the relator under article 9-A of the Tax Law for the two years ending October 31, 1921. (See Tax Law, art. 9-A, added by Laws of 1917, chap. 726, as amd. by Laws of 1919, chap. 628, and Laws of 1920, chap. 640.) See Civ. Prac. Act, § 1283, as amd. by Laws of 1922, chap. 355.— [Rep, [MAJORITY — Per Curiam:] Per Curiam: We think that the Tax Commission rightfully determined, under People ex rel. Alpha P. C. Co. v. Knapp (230 N. Y. 48), that the amendment of 1918, limiting a valuation of corporate stocks to ten per cent of the aggregate value of the real and tangible personal property, was unconstitutional, and did not apply. We think, however, that under the same authority the Tax Commission should not have included in the total net income the income derived from bonds owned by the relator. We also think that the Court of Appeals, by its expressed declarations in its opinion in the case of People ex rel. Bass, Ratcliff, etc., v. Tax Commission (232 N. Y. 42) did not deal with either of the questions presented here. H. T. Kellogg, Acting P. J., Van Kirk, Hinman and Hasbrouck, JJ., concur. Determination annulled and matter remitted to the State Tax Commission, without costs. See Laws of 1918, chaps. 276,417, amdg. Tax Law, art. 9-A, as added by Laws of 1917, chap. 726.— [Rep.