Opinion
Argued September 28, 1964
Decided November 19, 1964
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Louis J. Lefkowitz, Attorney-General ( Robert W. Bush and Paxton Blair of counsel), for appellants.
James W. O'Neil, Jr., and Harlan R. Harrison for respondent.
Order affirmed upon the opinion at the Appellate Division, with costs.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE and SCILEPPI. Judge DYE dissents in the following memorandum: I read subdivision 3 of section 359 of the Tax Law as applicable to this situation. The commissions received by this executor (who had been appointed by the New York County Surrogate to act in a New York State estate) were attributable to and derived "from sources within the state". To be sure, plaintiff is a nonresident who had performed his principal duties as executor without the State, but that is not the determining factor. The test laid down by the statute and which, without more, is controlling is to be found in the "source". Here, the "source" of the income sought to be taxed was his mother's estate. The statutory language needs no construction and, being a tax statute, should be literally applied. When we do so, it is the income derived "from sources within the state" that is taxable and not the place of performance. For these reasons, I vote to reverse and reinstate the determination of the State Tax Commission. Taking no part: Judge BERGAN.