Court of Appeal State of Colorado v. Harbeck 232 N. Y. 71, 133 N.E. 357 N.Y. Nov. 22, 1921. Judgment of the
Appellate Division reversed, and that of the Trial Term affirmed. [**357] [*72]
Appeal from Supreme Court, Appellate Division, First Department. [**358] Theodore N. Ripsom and James P.
Niemann, both of New York City, for appellants Kate A. Harbeck and another. [*76]
George L. Shearer and Harry K. Davenport, both of New York City, for appellant
U. S. Trust Co. of New York. [*75] Alfred S. Brown and William L.
Greenfogel, both of New York City, for appellants William H. Harbeck and
another. [*76] Bertrand L. Pettigrew, of New
York City (George W. Thomas, of New York City, and Victor E. Keyes, Atty. Gen.,
of Colorado, of counsel), for State of Colorado. [*79] JUDGE: POUND, J. This action was
brought to recover an inheritance tax upon the estate of John H. Harbeck,
deceased. Harbeck was a resident of Boulder, Colo. In October, 1910, he left
his home in Colorado with the intention of going abroad. About a month later,
while en route, in the city of New York, he died. On March 28, 1911, his will
and four codicils were admitted to probate in New York county, and letters
testamentary thereunder were issued to the widow, who was also the principal
legatee under said will. The defendants Alfred S. Brown and Francis B. Clark
are legatees under the codicils. The defendant the United States Trust Company
is the trustee under certain trusts created by the will for the benefit of the
defendant William Henry Harbeck. Transfer tax proceedings were had in New York,
and taxes assessed as upon the estate of a nonresident and paid. The executrix
filed her account July 8, 1913, which was settled and allowed March 10, 1914.
No provision was made for payment of a transfer tax to the state of Colorado,
which had no notice of the proceedings in New York. After the
executrix had accounted and the estate had been distributed in New York, the
state of Colorado instituted proceedings in its courts to assess a transfer tax
under its laws upon the estate. An appraisal was had February 28, 1916, notice
having been given by mail to all defendants as required by its law. The
inheritance tax laws of Colorado provide (Laws of 1902, c. 3, as amended by
Laws 1907, c. 214, § 1, and Laws 1909, c. 193, § 2) that the
tax shall thereupon be immediately due and payable and remain a lien on the
property transferred until paid. It is [*80]
further provided (section 1) that all legatees and executors shall be liable
for such taxes until the same have been paid as hereinafter
directed.!48; The tax was assessed as upon the estate of a resident and
notice of assessment given to all the defendants as required by the statute,
and such notice was in fact received by them. The amount of such tax was
upwards of $55,000. No appeal was taken under the Colorado statute to review
the assessment. The estate thus assessed for taxation consisted of stocks,
bonds, and credits of the value of nearly $3,000,000, none of which were physically
present in Colorado at the time of decedent!46;s death nor have since
come into the state. None of the defendants appeared in the Colorado tax
proceedings. In February, 1916, an administrator with the will annexed of
decedent was appointed and qualified in Colorado and continued to act as such.
At the time the Colorado proceedings were instituted and this proceeding begun
none of the defendants were residents of Colorado. This action was
thereafter begun in the Supreme Court of the state of New York, by the state of
Colorado against the executrix and legatees to recover the amount of the
transfer tax, the total amount from the executrix, and from each defendant the
amount assessed upon his legacy. The Trial Term dismissed the complaint on the
ground that the collection of the tax could not be enforced by action in the
state of New York. The Appellate Division reversed the judgment of the trial
court, and granted judgment against the defendants in the amount of nearly
$100,000 on the ground that, the tax having been regularly fixed and assessed
under the laws of Colorado, and defendants having received their legacies under
the laws of the state of Colorado providing for the transmission of the estates
of decedents by will, they assumed the statutory obligation to pay the tax
thereon, and made it their contractual obligation; that the payment of the tax
by the beneficiaries is a duty [*81]
imposed upon the right to acquire, and that the principle of comity between
states demands that the courts of New York should assume jurisdiction and
enforce the obligation. The question is
whether the inheritance tax of Colorado may, consistently with the due process
clauses of the United State Constitution, be collected extraterritorially, by
suit against the beneficiaries. Maxwell v. Bugbee, 250 U. S. 525, 539, 40
Sup. Ct. 2, 63 L. Ed. 1124. The court must
read the Colorado statute as it is written. It imposes a special burden upon
the right of succession to secure public revenue for governmental purposes. Brown
v. Elder, 32 Colo. 527,
77 Pac. 853; Macky!46;s Estate, 46 Colo. 79, 102 Pac. 1075, 23 L. R. A. (N. S.)
1207. Not only must the transfer tax be assessed in accordance with the
statute, but the method of collection provided by law must be followed. A fair
and reasonable construction of the statute in consonancy with the legislative
intention does not permit its enlargement to reach those who assert their
freedom from liability under the due process clause of the United States
Constitution. [**359] The only
intent of the Legislature that the court can discern is that the tax should be
collected in accordance with the statute, not otherwise. Matter of Gould, 156 N. Y. 423, 425, 51 N. E. 287.
Irregular assessments and unauthorized methods of collection may not be
justified by pointing out difficulties in the practical application of the
statute as written and appealing to the moral sense to meet the objection that
no legal liability has been established against the beneficiaries. No
substitute for the statutory method of collecting taxes, as such method is
expressed or fairly implied, may be invoked either in the state of Colorado or
elsewhere. It is urged
that the legatee becomes liable to pay the tax as upon an implied contract when
he accepts the legacy under the will of a resident of Colorado, and that he may
be sued in the courts of another state wherever jurisdiction [*82] of the person may be obtained. But taxes
are not debts or contracts. No contractual or quasi contractual obligation to
pay arises out of the assessment of a tax. City of Rochester v. Bloss, 185 N. Y. 42, 47, 77 N. E. 794, 6 L.
R. A. (N. S.) 694, 7 Ann. Cas. 15; Meriwether v. Garrett, 102 U. S. 472, 513, 26 L. Ed. 197. The enforcement
of revenue laws rests, not on consent, but on force and authority. Liability to
pay is a consequence imposed by fiat. A transfer tax is a
tax on the succession or the right to receive the bequest, based on the value
of the succession, but it is assessed against and paid by persons, and it may
not be collected from persons or out of property beyond the state!46;s
jurisdiction. Maxwell v. Bugbee, supra. No personal liability based upon the
receipt of a legacy arises except under the provisions of the Colorado statute
(section 1) that the person to whom the property is transferred shall be
personally liable for the tax until its payment, and that liability is purely
local and statutory. The theory that
a contract or implied promise or obligation to pay, enforceable by action in
this state, springs from the Colorado statute, is fallacious for a further
reason. Colorado had acquired no control either of the property of the Harbeck
estate or of its owners. The executrix paid the legacies by virtue of the
authority vested in her on the probate of the will by the state of New York,
without invoking any privilege or sanction conferred upon her by Colorado.
Testator!46;s right to make a valid will of his personal property which
was in the state of New York did not rest on the laws of Colorado nor make the
Colorado statute of wills the source of the legatees title.
The question of the jurisdiction of the state to tax is one of fact,
and cannot turn upon theories or fictions. Matter of Swift, 137 N. Y. 77, 86, 32 N. E. 1096, 1098
(18 L. R. A. 709). !47;It was never intended by the law to tax a theory
having no real substance behind it. Matter of Curtis, 142 N. Y. 219,
223, 36 N. E. 887, 888. Cases of
stockholders liability for corporate debts [*83] under foreign statutes which rest on the
stockholders!46; contract are not in point. Howarth v. Angle, 162 N. Y. 179, 56 N. E. 489, 47 L. R.
A. 725. Cf. Marshall v. Sherman, 148 N. Y. 9, 42 N. E. 419, 34 L. R. A. 757, 51 Am. St. Rep. 654.
Workmen!46;s compensation laws have been held to enter into the contract
of employment without the state. Matter of Post v. Burger & Gohlke, 216 N.
Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158. The right of a New York administrator
to sue on a foreign death statute rests on the transitory obligation arising
out of a personal injury which follows the person, and for sound reasons of
public policy may be enforced wherever the person may be found. Loucks v.
Standard Oil Co., 224
N. Y. 99, 110, 120 N.
E. 198. These authorities are clearly distinguishable from the case at bar. Although a
liability to pay the tax exists under the Colorado statute, jurisdiction and
power to enforce the liability in the New York tribunal must be established.
Under the due process clause of the United States Constitution, where the
delinquents are nonresidents of the taxing state and outside its jurisdiction,
so that no personal liability or enforceable duty may be established as against
them, and where the property involved is without the taxing state, so that no
res exists upon which the taxing state may impose a lien, the state is
powerless to collect the tax in its own courts, and powerless to invoke the aid
of a sister state to collect its revenue. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed.
565; Dewey v. City of Des Moines, 173 U. S. 193, 19 Sup. Ct.
379, 43 L. Ed. 665; City of New York v. McLean, 170 N. Y. 374, 387, 388, 63 N. E. 380; Matter
of Maltbie v. Lobsitz Mills Co., 223 N. Y. 227, 119 N. E. 389. But plaintiff
contends that by the application of a familiar fiction of law the legal situs
of decedent!46;s personal property attaches to his domicile in Colorado,
although the property was in every reasonable sense within the state of New
York, where the stocks, bonds, and credits were kept, and that Colorado has an
enforceable lien thereon by virtue of the taxing order. A sufficient answer to
this contention is that the judgment in suit imposes a personal liability only,
and enforces no lien. [*84] A
further answer is that mobilia sequuntur personam [**360] is not an exclusive rule of universal
application, nor does it transfer property into the foreign from the domestic
jurisdiction. It is a rule of convenience merely, permitting taxation at the
domicile of the owner of personal property which may at the same time be subject
to taxation where the property itself is permanently located. Pullman!46;s
Palace Car Co. v. Pennsylvania, 141 U. S. 18,
22, 11 Sup. Ct. 876, 35 L. Ed. 613; Union Refrigerator Transit Co. v. Commonwealth
of Kentucky, 199 U. S. 194, 206, 26
Sup. Ct. 36, 50 L. Ed. 150, 4 Ann. Cas. 493; People ex rel. Hoyt v.
Commissioners of Taxes,
23 N. Y. 224, 227; Maxwell v. Bugbee, supra. This state taxes
the succession of personal property of nonresidents according to the actual
situs of the thing (Matter of Romaine, 127 N. Y. 80, 89, 27 N. E. 759, 12 L. R. A. 401),
and our courts may not say that the assets of the estate are at the same time
actually within and without the state of New York. The tangible res was
therefore at all times in New York and not in Colorado. If these
general and well-recognized principles of taxation are by any process of
reasoning to be considered inapplicable to the collection of transfer taxes, a
sufficient answer to the contention of the state of Colorado remains. When a
statutory method of enforcing the collection of a tax is provided which
requires judicial action before the liability of the taxpayer is finally fixed,
it is exclusive, and must be followed. That it cannot be followed does not
alter the case. The order which was entered in Colorado in the proceeding to
fix the tax on notice by mail to defendants did not terminate a suit or
controversy between parties, and is not a judgment either in personam or in
rem. People v. Kellogg, 268 Ill. 489, 109 N. E. 304. After the tax has been
assessed by the preliminary order no person can be compelled to pay it until a
citation issued out of a Colorado court having jurisdiction has been regularly
served on him and he has had an opportunity to be heard. Unless this notice is
given, the constitutional right to due process of law is invaded. Matter of
McPherson, 104 N. Y.
[*85] 306, 321, 10 N. E. 685, 58
Am. Rep. 502. The Colorado statute thus provides (Laws 1913, c. 136,
§§ 18, 19) for a proceeding to collect the tax, subsequent to
the assessment, on notice to the persons interested in the property, in the
nature of an action in rem. A statutory remedy or proceeding cannot
be enlarged by construction nor be made available or valid except by strictly
following the directions of the act. Matter of Maltbie v. Lobsitz
Mills Co., 223 N. Y.
232, 119 N. E. 389, supra; Oakman v. Small, 282 Ill. 360, 118 N. E. 775. But it is urged
that the right of the state of Colorado to maintain an action for the
collection of the tax when the special remedy is ineffective is upheld by its
local laws (Pinnacle Gold Min. Co. v. People, 58 Colo. 86, 143 Pac. 837); that the Colorado statute
provides that the Attorney General may collect the tax in any other
manner as may be provided in this act or by law!48; (Act of 1913, c. 136,
§ 13); i. e., by a common-law action. This contention also is unsound.
The attempt to give such a statutory provision extraterritorial effect would
conflict with another well-settled principle of private international law which
precludes one state from acting as a collector of taxes for a sister state and
from enforcing its penal or revenue laws as such. The rule is universally
recognized that the revenue laws of one state have no force in another. The
remedy is a part of the law, and we are once more brought to face the doctrine
that the taxing power of the state is by the federal Constitution limited to
persons and property within its jurisdiction. Wisconsin v. Pelican Ins. Co., 127 U. S. 265., 8 Sup. Ct.
1370, 32 L. Ed. 239; Marshall v. Sherman, 148 N. Y. 24-26, 42 N. E. 419, 34 L. R. A. 757,
51 Am. St. Rep. 654, supra; Loucks v. Standard Oil Co., 224 N. Y. 102, 120 N. E. 198; Walker
v. Treasurer, etc., 221
Mass. 600, 109 N. E. 647; City of New York v. McLean, supra. The judgment of
the Appellate Division should be reversed and that of the Trial Term affirmed,
with costs in this court and in the Appellate Division. CRANE, J.
(concurring in result). I agree with
the result in this case on the ground that I can find no [*86] authority in the Inheritance Tax Law of
the state of Colorado for this action. HISCOCK, C. J.,
and HOGAN, CARDOZO, McLAUGHLIN, and ANDREWS, JJ., concur with POUND, J. CRANE, J.,
concurs in result in memorandum. Judgment
accordingly. |