Town of Somers v. Covey, 2 N.Y.2d 250, 140 N.E.2d 277 (1957)

Lane, Robert

English

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 7 Number 1 Article 98 10-1-1957 Taxation—Foreclosure of In Rem Tax Lien Robert Lane Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Taxation-State and Local Commons Recommended Citation Robert Lane, Taxation—Foreclosure of In Rem Tax Lien, 7 Buff. L. Rev. 175 (1957). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol7/iss1/98 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. COURT OF APPEALS, 1956 TERMForeclosure Of In Rem Tax LienTown of Somers v. Covey35 involved reargument before the Court of Appeals,following reversal of its prior decision 36 by the Supreme Court of the UnitedStates. 3 7 The Supreme Court had reversed on the grounds that notice by publica-tion, to an incompetent, of foreclosure of a tax lien did not satisfy the requirementsof due process.In the instant case, the Court explained that its prior decision was not basedon the sufficiency of such notice, but rather on the grounds that the incompetent'scommittee had pursued the wrong remedy. The committee sought to vacate thejudgment of foreclosure, but the Court had held that, pursuant to statute,38 theforeclosure proceedings could only be attacked by an action to set aside the deedexecuted by virtue of that judgment. Hence, sufficiency of notice was immaterialin view of this holding; furthermore, the committee was now without remedyaltogether for the statutory remedy was subject to a two-year limitation period3 9which had now expired. Thus the committee defeated himself by persisting inhis error.Claim For Refund Of General Business TaxThe City of New York imposed a gross receipts tax4" upon advertisingreceipts earned by petitioner over a three year period, upon the theory that thesereceipts were the fruits of activity peculiarly local, even though the subsequentcirculation of the magazine could be considered interstate commerce. Petitioner,a New York City publisher, brought this proceeding to obtain a refund of moniespaid to the city declaring that the tax upon gross receipts was a burden uponinterstate commerce.41 To succeed, petitioner had to distinguish the facts of itsown situation from the Supreme Court decision in Western Livestock v. Bureau ofRevenue,42 a case involving state taxation of advertising receipts for advertisingappearing in a magazine circulated throughout the country. The tax was sustained,and the business of "preparing, printing, and publishing magazine advertising ' '43was deemed to be local activity, and any burden upon interstate commerce viewedas too remote to call for an invalidation of the tax.35. 2 N.Y.2d 250, 140 N.E.2d 277 (1957).36. 308 N.Y. 798, 125 N.E.2d 862 (1955).37. 351 U.S. 141 (1956); see 6 BUFFALO L. REV. 345 (1957) for discussion ofthe instant case as well as the Supreme Court decision.38. N.Y. TAx LAW §165-h(7).39. Ibid.40. ADMINISTRATIVE CODE OF CITY OF NEW YORK, §§41, 46.41. New Yorker Magazine v. Gerosa, 3 N.Y.2d 362, 165 N.Y.S.2d 469 (1957).42. 303 U.S. 250 (1937); for a discussion of the decision see, note, 13 IND. L. J.500 (1937). The case is also noted in ROTrScHAEFER ON CONSTITUTIONAL LAW, 168,169 (1939).43. 303 U.S. at 258, 259.

Taxation—Foreclosure of In Rem Tax Lien

https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=3834&context=buffalolawreview

Taxation—Foreclosure of In Rem Tax Lien

Abstract

Similar works

Full text

Available Versions

Digital Commons @ University at Buffalo School of Law