S T A T E O F N E W Y O R K
________________________________________________________________________
1098
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. RABBITT, FINCH, WALKER -- Multi-Sponsored by --
M. of A. SAYWARD -- read once and referred to the Committee on Ways
and Means
AN ACT to amend the tax law, in relation to determination and apportion-
ment by the commissioner of taxation and finance
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 260 of the tax law, as amended by chapter 372 of
the laws of 1930, is amended to read as follows:
S 260. Determination and apportionment by the [state tax commission]
COMMISSIONER. When the real property covered by a mortgage is situated
in more than one tax district, the [state tax commission] COMMISSIONER
shall apportion the tax paid on such mortgage between the respective tax
districts upon the basis of the relative assessments of such real prop-
erty as the same appear on the last assessment-rolls, AS ADJUSTED TO
REFLECT THE APPLICABLE STATE EQUALIZATION RATE ESTABLISHED PURSUANT TO
THE REAL PROPERTY TAX LAW, FOR EACH SUCH RESPECTIVE TAX DISTRICT, WHICH
WAS IN EFFECT AT THE TIME SUCH MORTGAGE WAS RECORDED. If, however, the
whole or any part of the property covered by such a mortgage is not
assessed upon the last assessment-roll or rolls of the tax district or
districts in which it is situated, or is so assessed, as a part of a
larger tract, that the assessed value cannot be determined, or if
improvements have been made to such an extent as materially to change
the value of the property so assessed, the [tax commission] COMMISSIONER
may require the local assessors in the respective tax districts, or the
mortgagor, or mortgagee, to furnish sworn appraisals of the property in
each tax district, and upon such appraisals shall determine the appor-
tionment. If such mortgage covers real property in two or more coun-
ties, the [tax commission] COMMISSIONER shall determine the proportion
of the tax which shall be paid by the recording officer who has received
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02782-01-9
A. 1098 2
the same to the recording officers of the other counties in which are
situated the tax districts entitled to share therein. When any record-
ing officer shall pay any portion of a tax to the recording officer of
another county, he OR SHE shall forward with such tax a description
sufficient to identify the mortgage on which the tax has been paid, and
the recording officer receiving such tax shall note on the margin of the
record of such mortgage the fact of such payment, attested by his OR HER
signature. The [tax commission] COMMISSIONER shall make an order of
determination and apportionment in respect to each such mortgage and
file a certified copy thereof with the recording officer of each county
in which a part of the mortgaged real property is situated.
When the real property covered by a mortgage is partly within the
state and partly without the state, it shall be the duty of the [tax
commission] COMMISSIONER to determine what portion of the mortgage or of
advancements thereon shall be taxable under this article. Such determi-
nation shall be made in the following manner: First: Determine the
respective values of the property within and without the state, and
deduct therefrom the amount of any prior existing mortgage liens,
excepting such liens as are to be replaced by prior advancements and the
advancement under consideration. Second: Find the ratio that the net
value of the mortgaged property within the state bears to the net value
of the entire mortgaged property. Third: Make the determination of the
portion of the mortgage or of the advancements thereon which shall be
taxable under this article by applying the ratio so found. If a mortgage
covering property partly within and partly without the state is
presented for record before such determination has been made, or at the
time when an advance is made on a corporate trust mortgage or on a prior
advance mortgage, there may be presented to the recording officer a
statement in duplicate, verified by the mortgagor or an officer or duly
authorized agent of the mortgagor, in which shall be specified the net
value of the property within the state and the net value of the property
without the state covered by such mortgage. One of such statements shall
be filed by the recording officer and the other shall be forthwith tran-
smitted by him OR HER to the [state tax commission] COMMISSIONER. The
tax payable under this article before the determination by the [tax
commission] COMMISSIONER shall be computed upon such portion of the
principal indebtedness secured by the mortgage, or of the sum advanced
thereon, as the net value of the mortgaged property within the state
bears to the net value of the entire mortgaged property as set forth in
such statement. The [tax commission] COMMISSIONER shall on receipt of
the statement from the recording officer and on not less than ten days'
notice served personally or by mail upon the mortgagor, the mortgagee,
and the state comptroller, proceed to make the required determination.
In determining the separate values of the property within and without
the state, the [tax commission] COMMISSIONER shall consider only the
tangible property, real and personal, except that leases of real proper-
ty shall be deemed tangible property. For the purpose of determining
such value, the [tax commission] COMMISSIONER may require the mortgagor
or mortgagee to furnish by affidavit or verified report such information
or data as [it] HE OR SHE may deem necessary, and may require and take
the testimony of the mortgagor, mortgagee, or any other person. A
certified copy of the order of determination and apportionment shall be
delivered personally or by mail to the mortgagor, the mortgagee, and the
state comptroller, and any tax under such determination which has not
been paid shall be paid within ten days after service of such certified
copy; if, however, the tax paid at the time of filing the statement
A. 1098 3
hereinbefore specified with the recording officer is in excess of the
tax determined to be payable, the certificate of determination and
apportionment shall direct the recording officer to refund to the person
paying such tax the amount of such excess; provided that no refund shall
be made of any taxes paid pursuant to a previous determination.
The [tax commission] COMMISSIONER shall adopt rules to govern the
procedure and the manner of taking evidence in all the matters provided
for by this section and may require verified statements to be furnished
either by boards of assessors, recording officers, or other persons
having knowledge in relation to such matters. Failure on the part of any
person or officer to furnish a statement or other data when required so
to do pursuant to the provisions of this section shall render such
person or officer liable to a penalty of one hundred dollars, to be
recovered by the attorney-general in an action brought in the name of
the people of the state of New York.
In making determination and apportionment under this section, the [tax
commission] COMMISSIONER shall consider each advancement made upon a
mortgage after July first, nineteen hundred [and] six, as a new mort-
gage. In all cases under this section where the provisions for distrib-
ution of the tax among tax districts are inapplicable or inadequate, the
[tax commission] COMMISSIONER shall establish a basis of apportionment
that will be equitable and fair.
S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.