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3. Domestic and foreign corporations, taxable under Article 9, paying an annual tax based on the value of capital stock employed within the state.

4. Domestic and foreign business corporations, taxable under Article 9-a, with the exception of the corporations named in the other classifications, paying an annual franchise tax based on net income returned to the United States Treasury Department.

And the following special classes of corporations:

5. Transportation, heating, power, lighting, water and transmission companies, paying an annual tax based on gross earnings.

6. Elevated and surface railroads not operated by steam, paying an annual tax based on gross earnings.

7. Insurance companies, paying an annual tax based on gross premiums or earnings.

8. Trust companies, paying an annual tax based on capital stock, surplus and undivided profits.

9. Investment companies, paying an annual tax based on face value of capital stock, surplus and undivided profits.

10. Savings banks, paying an annual tax based on surplus and undivided earnings.

11. Foreign bankers, which class includes corporations, paying an annual tax on net earnings or interest earned.

CHAPTER III.

THE ORGANIZATION TAX TO BE PAID BY DOMESTIC CORPORA

TIONS.

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Defined. The organization or incorporation tax is the charge to be paid by every domestic stock corporation except banking, building, mutual loan, accumulating fund and co-operative associations, and is paid for the privilege of receiving its charter or exercising its corporate franchise in the state.

The basis of the tax.-The basis of the tax is the authorized capital stock. In this respect, it differs from the license tax or initial tax paid by a foreign corporation for the privilege of coming into the state to do business, which is based on that part of its issued capital stock represented by the proportion which the property or assets in the state bear to its entire property or assets.

Rate of tax.—The rate or amount of the tax is one-twentieth of one per cent. on the authorized amount of capital stock, but in no case shall this tax be less than ten dollars. Prior to 1901, the rate for the organization tax was the same as for the license tax to be paid by a foreign corporation on coming into the state to do business, viz., one-eighth of one per cent. The Comptroller's Report of 1900 recommended a reduction of the organization tax, and by Chapter 448, Laws of 1901, it was reduced to one-twentieth of one per cent., the present rate.

In many states the rate paid by domestic and foreign corporations is the same, but there is no unconstitutionality in imposing a different rate on foreign corporations coming into the state. Horn Silver Mining Co. v. N. Y., 143 U. S. 305.

When the organization tax is payable, how paid, and to whom.-The organization tax is payable at the time the certificate of incorporation is filed with the secretary of state. A check for the amount of the tax should be sent to the state treasurer, and the receipt for the same should be annexed to the certified copy certificate of incorporation or duplicate of original when filed in the office of the clerk of the county in which the principal office is situated.

The present statute reads as follows:

Organization tax.-Every stock corporation incorporated under any law of this state shall pay to the state treasurer a tax of onetwentieth of one per centum upon the amount of capital stock which the corporation is authorized to have and a like tax upon any subsequent increase. Provided, that in no case shall such tax be less than ten dollars. Such tax shall be due and payable upon the incorporation of such corporation or upon the increase of its capital stock. Except in the case of a railroad corporation, neither the secretary of state nor county clerk shall file any certificate of incorporation or article of association, or give any certificate to any such corporation or association until he is furnished a receipt for such tax from the state treasurer, and no stock corporation shall have or exercise any corporate franchise or powers, or carry on business in this state until such tax shall have been paid. And in case of a decrease of capital stock, upon which the tax required by law has been paid, and a subsequent increase thereof, a tax shall be paid only upon so much of such increase as exceeds the amount of capital stock upon which a tax has been before paid. In case of the consolidation of existing corporations into a corporation, such new corporation shall be required to pay the tax hereinbefore provided for only upon the amount of its capital stock in excess of the ag. gregate amount of capital stock of said corporations. This section shall not apply to state and national banks or to building, mutual loan, accumulating fund and co-operative associations. A rail. road corporation need not pay such tax at the time of filing its certificate of incorporation, but shall pay the same before the public service commission shall grant a certificate, as required by the railroad law, authorizing the construction of the road as proposed in its articles of association, and such certificate shall not be granted by the public service commission until it is furnished with a receipt for such tax from the state treasurer. If the board of railroad commissioners or public service commission shall have heretofore granted, or the public service commission shall hereafter grant, such certificate and upon an appeal from the determination of such board of railroad commissioners or public service commission, such certificate has been or may hereafter be denied the state treasurer shall refund the amount of tax so paid to the railroad corporation or corporations by which such tax was paid, upon proof of payment being presented and appropriation being made therefor. (Sec. 180, former sec. 180, Taw Law, as amended by ch. 369, L. 1897, ch. 448, L. 1901, ch. 524, L. 1906, ch. 472, L. 1910, ch. 91, L. 1911, ch. 317, L. 1915, and ch. 493, L. 1917.)

Source: Ch. 143, L. 1886, as amended by ch. 668, L. 1892. Tax on re-organization of corporations.—No organization tax is due on the re-organization of a manufacturing corporation under the Business Corporation Law. Matter of Consol. Kansas City Smelting Co., 13 App. Div. 50 (1897). But where railroad corporation property and franchises have been foreclosed and sold, and a new corporation formed under a re-organization act (Chapter 430, of Laws of 1874, as amended), an organization tax is payable. People ex rel. Schurz v. Cook; same v. Mertens, 110 N. Y. 443. The law imposing this tax does not impair the obligation of contracts. Ibid.

Consolidated corporations. Before the amendment of 1892 (Chapter 668, Laws of 1892), consolidated corporations were required to pay the organization tax. After this amendment no tax was required from a consolidated corporation except upon the excess stock.

Organization tax payable by corporations with shares without designated monetary value.—The organization tax payable under section one hundred and eighty of the tax law by any corporation issuing such shares without designated monetary value shall be at the rate of five cents on each such share which the corporation is authorized to issue, and a like tax upon any subsequent increase thereof. (Chap. 351, L. 1912.)

Note: The amendment of 1917 to Section 180 making the organization tax in each case not less than $10.00, applies also to corporations having shares without designated par value. (Rept. of Atty. General (1912), 291.)

CHAPTER IV.

LICENSE TAX; FOREIGN CORPORATIONS.

License tax defined.— The license tax is the fee or tax paid by a foreign corporation for the privilege of exercising its corporate franchise, or for carrying on its business, in its corporate or organized capacity within the state.

History.—This tax corresponds very closely to the organization tax to be paid by domestic corporations for the privilege of receiving its charter, or exercising its corporate franchise in the state. The organization tax, or tax on incorporation of domestic corporations, has existed in this state since 1886, but it was not until 1895 that a foreign corporation was required to pay any fee or tax for the privilege of exercising its corporate franchise in the state. The Comptroller of the state, in his report for the year 1895, in order to bring within the jurisdiction of the state certain corporations organized under the laws of other states, but practically domestic, as far as their business was concerned, recommended that foreign corporations be taxed on the basis of the capital stock employed in the state. By Chapter 240 of the Laws of 1895, a foreign corporation was required to pay a license fee or a tax of one-eighth of one per centum “for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity in the state . . . computed upon the basis of the amount of its capital stock employed within the state" during the first year. This has practically remained the law to this date. The amendment of 1901 included manufacturing corporations, and the amendment of 1906 changed the method of computing the amount of capital stock employed within the state.

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