No limitation for action under personal income tax law.Section 381 of the Tax Law to which reference has already been made, fixes no limitation within which an action may be brought to enforce the collection of a personal income tax.

Secrecy required of officials; Penalty for violation.-Section 219-i provides that it is unlawful for any tax commissioner or any of his agents or employees to make known in any manner the amount of income or any particulars set forth in the reports required under this article. This does not prohibit the publication of statistics, when so classified as to prevent the identification of particular reports, nor does it prohibit the publication of delinquent lists, showing the names of taxpayers who have failed to pay their taxes, together with any relevant information which in the comptroller's opinion may assist in the collection of such delinquent taxes, or the inspection by the attorney-general or other legal representative of the State of the corporation's report, under the circumstances set forth in said section. The reports are to be preserved for at least three years and thereafter until the Commission orders their destruction; any offender against the provisions of this section shall be subject to fine or imprisonment or both, and if he be an officer or employee of the State, he shall be dismissed from office and be incapable of holding any public office in this State for a period of five years thereafter.

The provisions contained in Section 219-i, as to secrecy and for the punishment of an offense against such provisions, are in substance the same as those contained in paragraphs 232, 233, 234 and 235 of the Federal Income Tax Law, Act of September 8th, 1916, as amended by the Act of October 3d, 1917.

Reference in paragraph 1 of Section 219-i, as to the publication of statistics, refers to the usual powers given to the Tax Commission under Section 171 of the Tax Law. The reference to publication of the delinquent lists as an aid to the collection of the taxes, is taken from the Wisconsin Income Law. Under the Wisconsin Income Tax Law, the assessment and the tax rolls, and all proceedings and evidences taken before the County Board of Review, shall be open to public inspection under such conditions as the Tax Commission may permit.

CHAPTER XXII.

CERTIORARI.

The general purpose of a writ of certiorari is to correct errors of a judicial or quasi-judicial character. The determination of the State Tax Commission, or of the Comptroller, may be placed in the latter category. Under our system of State and local taxation, the corporation or person aggrieved is no longer confined to the common law remedy of certiorari, which was somewhat limited in its scope, but special statutory provisions now regulate this proceeding. Ever since Chapter 542 of the Laws of 1880, and coincident with the introduction of our system of State taxation of business corporations, there have been provisions in the statute for reviewing the determination of the State Comptroller, and later on, of his successor, the State Tax Commission, as to any determination affecting corporations taxable under Article 9. These provisions have now been repeated either by reference to existing statutes or by additional sections in Article 9-a and again in Article 16. The practice under these provisions has been passed on by the courts in a long line of cases, which are referred to below with the idea of their application to the new law.

The provisions governing certiorari proceedings for business corporations generally, before the passage of the so-called State Income Tax Laws (Articles 9 and 16), are contained in Sections 199 and 200 of the Tax Law under Article 9. Section 219 of Article 9-a and Section 375 of Article 16 are repetitions of Section 200, and provide for a certiorari to review the determination of the State Tax Commission or the State Comptroller respectively as to a tax imposed under Article 9-a or Article 16. The requirements are almost identical in this respect with Section 200, in that notice of the application must be made within thirty days after

service of notice of the determination, and a further similar requirement is contained as in Section 200, that eight days' notice shall be given to the Commission or the Comptroller (as the case may be), of the application for such writ. So also must the full amount of taxes, percentage, interest and other charges, audited and stated in said account, be deposited with the State Comptroller before making the application, and an undertaking filed with the Commission or the Comptroller (as the case may be) in such amount, and with such sureties as a justice of the Supreme Court shall approve. The forms of petition, the writ and the undertaking are given in another portion of this book. Section 219 further provides that the determination may be reviewed in the manner prescribed by and subject to the provisions of Section 199 of this chapter, to which reference has already been made.

Certiorari under Corporation Tax (Article 9).-Section 199 of the Tax Law reads as follows:

"Review of determination of tax commission by certiorari.— The determination of the commission, upon any application made to it 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 commission shall return, on such certiorari, the accounts and all the evidence before it 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."

[The text of the law in certiorari for Arts. 9-a and 16 is given in Part II and Part IV.]

Taxes to be deposited with State comptroller.-Under the 1918 amendment, Section 200 of the Tax Law (as amended by L.

1915, ch. 317), which was entitled "regulations as to such writ of certiorari," has been incorporated in the second paragraph of Section 219, above quoted, and differs from Section 200 only in that under that section the full amount of the taxes, percentages and charges credited were to be deposited with the State treasurer, whereas under Article 9-a, they are to be deposited with the State comptroller.

Code provisions applicable.-The right to the writ being expressly conferred by statute (Section 199, Tax Law) its issuance is provided by Section 2120 of the Code. It can only be issued out of the Supreme Court (Code, Section 2123). The application for the writ must be made by, or in behalf of, the corporation aggrieved by the determination to be reviewed; it must be founded upon an affidavit, or a verified petition, which must be accompanied by other written proof; and must show a proper case for the issuance thereof. It can be granted only at a term of the Appellate Division of the Supreme Court or at Special Term (Code, Section 2127). If granted at Special Term, it is invariably granted in the case of a corporation in the judicial district where its principal office is located. In the case of an individual (resident), in the district where he resides, and in the case of a non-resident at his place of business or occupation in the State, eight days' notice of the application for the writ must be given by Section 199 of the Tax Law, as now amended, and copies of the papers upon which the application is to be made, served therewith. (Code, Section 2128). The writ must be directed to the members of the tax commission whose determination is sought to be reviewed, by their names (Code, Section 2129) or to the comptroller, in person (if under Article 16). It must be served, except where different directions respecting the mode of service thereof, are given by the court granting it, upon the chairman of the Tax Commission. (Code, Section 2130, subd. 3; Code, Section 2071) or upon the comptroller (Article 16). The writ must be made returnable, within twenty days after the service thereof, at the office of the Clerk of

Albany County, wherein the determination to be reviewed was made. (Code, Section 2132.)

After the writ has been issued, the time to make a return thereof may be enlarged, or any other order may be made, or proceeding, taken in the cause, as a similar proceeding may be taken in an action brought in the Supreme Court and triable in the county where the writ is returnable (Code, Section 2133). The clerk with whom the writ is filed and the person upon whom the writ is served must make and annex to the writ or to the copy served, a return, with a transcript annexed and certified by him, of the record or proceedings, and a statement of the other matter, specified in and required by the writ. The return under Articles 9 or 9-a must be filed in the office of the clerk of Albany County, where the writ is returnable (Code, Section 2134). In the case of the Personal Income Tax (Article 16) presumably the comptroller must file a like return, although the new law divides the State into districts. for convenience of administration under Section 372 (Article 16). If the return is defective the court may direct a further return (Code, Section 2135). The cause must be heard at a term of the Appellate Division of the Supreme Court, Third Department. Either party may notice it for hearing at any time after the return is complete (Code, Section 2138). It must be heard upon the writ and return, and the papers upon which it was granted (Code, Section 2138), except where the chairman of the commission (or the comptroller) whose duty it is to make the return, dies, absconds, removes from the State or becomes insane, after the writ is issued, and before making a return, or after making an insufficient return; and it appears that there is no other person from whom a sufficient return can be procured by means of a new writ; then the court may, in its discretion, permit affidavits or other written proofs relating to the matters not sufficiently returned, to be produced, and may hear the cause accordingly. The court may also, in its discretion, permit either party to produce affidavits or other written proof relating to any alleged error of fact, or any other question of fact, which is essential to the jurisdiction of the commission to make the determinations to be reviewed where the facts, in