for a resettlement of a tax on a petition properly signed, but not verified, the court, on certiorari, cannot assume that in this respect there was not sufficient proof before the comptroller. People v. Campbell & Roberts, 88 Hun, 544.

Revision and resettlement of tax.-Upon the revision or resettlement of an account, the commission shall, under Section 218, Article 9-a, resettle the same according to law and the facts, and adjust the account for taxes accordingly. Under Article 9, Section 198, "the Commission 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."

It is reasonable to assume that the Commission has the same power to credit a business corporation's account with taxes or other charges unlawfully or erroneously demanded, or with an illegal payment, under Section 218, that it has under Article 9 with respect to the corporations affected thereby.

Credit for excess taxes; refund.-Before the enactment of Article 9-a, corporations could assign the difference resulting from a revision or resettlement of a franchise tax under Article 9 (Section 198, Tax Law). There is no similar provision in Article 9-a, but under Section 219-d thereof, business corporations are permitted to assign an excess of tax to a corporation liable to pay taxes, after the amount of annual net income of the assignor corporation has been corrected by the Commissioner of Internal Revenue. There is therefore some ground for believing that the right to assign a credit for excess taxes under Article 9-a would be recognized. Some warrant may be found for this opinion in the general powers of the Commission under Section 218 to "adjust the account." Article 9-a, section 219-j, now provides for a refund of excess taxes paid.

Refund under Article 16 (Section 377).-Articles 9 and 9-a provide for an assignment and credit of excess taxes paid. There is no provision in Article 9 for a refund, and there was none in 9-a until Chapter 138 of the Laws of 1919 added a paragraph to Section 219-j, under which the Comptroller may refund to a cor

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poration out of the current revenues in his hands, the amount of excess taxes paid without interest.

Under the fourth paragraph of Section 377, the following provision is made for a refund under the Personal Income Tax Law (Article 16):

"4. If the amount of tax as computed shall be less than the amount theretofore paid, the excess shall be refunded by the comptroller out of the proceeds of the tax retained by him as provided in this article.

General rules applying to rehearing. It is for the corporation on application for a hearing to establish the fact that the conclusion of the Commission was erroneous. People ex rel. Am. Axe & Tool Co. v. Roberts, 82 Hun, 313.

On application for a revision, if a corporation fails to show ground for a readjustment, the Commission cannot increase the amount of the tax as originally fixed. Under Section 198 Tax Law, as amended by Laws of 1915, Chapter 317, the Commission, on a readjustment or revision charged or credited the taxpayer with the difference. Section 218 of Article 9-a provides that the Commission shall adjust the account, and the words "charge or credit" do not appear. Probably the difference in language between the 1915 Law and the present one was the result of the ambiguity created by the use of the terms "charge or credit," which words evidently referred to the state of the account between the State and the taxpayer. A tax, if illegal and already paid, is to be credited; if the tax is unpaid and diminished, it is to be charged. People ex rel. Eppens Co. v. Roberts, 51 App. Div. 152.

Application may be properly made for revision of a tax imposed upon and paid by a corporation exempted from any taxation under the act, even if the tax was voluntarily paid. People ex rel. Edison Elec. Ill. Co. v. Wemple, 141 N. Y. 471.

On application for a revision of the tax under Section 218, it would appear that the petitioner is not obliged to present further testimony or offer witnesses for examination. The corporation may rely on the accounts already presented. People ex rel. Studebaker Co. v. Knight, 66 App. Div. 150.

When comptroller's determination binding.—The determination of an assessing officer that a corporation is exempt as a manufacturing corporation is not binding on his successor upon application to secure an exemption from taxation for a subsequent year. People ex rel. N. Eng. Dressed Meat & Wool Co. v. Roberts, 155 N. Y. 408 (1898). But the comptroller cannot, of his own motion, change the amount of a license fee fixed by him or his predecessor. The same is in the nature of a judicial decision. People ex rel. Spencerian Pen Co. v. Kelsey, 105 App. Div. 133 (1905).

CHAPTER XXI.

POWERS OF TAX COMMISSION AND COMPTROLLER; PENALTIES; COLLECTION OF TAXES; SECRECY; LIMITATIONS.

Section 217 of Article 9-a provides, that if the corporation fails or neglects to make a report under the Law, the Tax Commission may estimate the net income of such corporation and compute the amount of tax due, and may audit and state the account according to such estimate. It must notify the corporation by mail, of such estimate made, and give it an opportunity to be heard with respect thereto. All the authority and powers conferred under Section 195 of the Tax Law, upon the State Tax Commission, shall have full force and effect in respect to corporations liable under this section.

Section 195 of the Tax Law reads as follows:

"Powers of Tax Commission to examine into affairs of corporations. In case any report required by any of the preceding sections of this article shall be unsatisfactory to the commission, or if any such report is not made as herein required, the commission is authorized to make án 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 it for the taxes, percentage and interest due the State from such corporation, association, joint-stock company, person or partnership. The commission 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 it, the books and records of any corporation, joint-stock association, company, foreign banker, person or partnership, and may hear testimony and take proofs material for its information, and may appoint a commissioner by a written appointment under its 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 commission. The commission shall, therefrom, or from any other data which shall be satisfactory to it, 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 commission." General powers of tax commission.—In addition to the powers conferred on the Tax Commission by Section 195, its general powers and duties are defined by Sections 171 and 171-a. Section 171 of the Tax Law defines the powers of the Tax Commission, and among them are the following:

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Third. Make such reasonable rules and regulations, not inconsistent with law, as may be necessary for the exercise of its powers and the performance of its duties under this chapter, and prescribe the form of blanks, reports, assessment rolls, and other records relating to the assessment of property for taxation, and furnish such forms to assessors and other officers at the expense of the State. Local assessors shall follow the forms so prescribed, and the commission shall enforce their use.

Fourth. On and after April fifteenth, nineteen hundred and fifteen, assess, determine, revise, readjust and impose the corporation taxes under article nine of this chapter.

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Seventh. Take testimony and proofs, under oath, with reference to any matter within the line of its official duty. Any member of such commission may be designated for that purpose.

Eighth. Require from all State and local officers such information as may be necessary for the proper discharge of its duties.

The power to compel testimony is given under the following section:

Section 171-a. Administer oaths and compel testimony:-The members of the tax commission, their deputies, secretary or other officer or employee duly designated and authorized by the commission for that purpose shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of the powers or duties of the commission under this article. The commission shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents pertinent to the investigations and inquiries which it is authorized to conduct, and to exam