In re National Studios, No. 171.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSWAN, CHASE, and CLARK, Circuit
Citation118 F.2d 329
PartiesIn re NATIONAL STUDIOS, Inc. CITY OF NEW YORK v. FEIRING.
Docket NumberNo. 171.
Decision Date14 April 1941

118 F.2d 329 (1941)

In re NATIONAL STUDIOS, Inc.
CITY OF NEW YORK
v.
FEIRING.

No. 171.

Circuit Court of Appeals, Second Circuit.

March 17, 1941.

Writ of Certiorari Granted April 14, 1941.


Benjamin Siegel, of New York City, for trustee-appellee.

William C. Chanler, Corp. Counsel, of New York City (Paxton Blair, Sol Charles Levine, and Morris L. Heath, all of New York City, of counsel), for claimant-appellant.

Before SWAN, CHASE, and CLARK, Circuit Judges.

Writ of Certiorari Granted April 14, 1941. See 61 S.Ct. 843, 1028, 85 L.Ed. ___.

CHASE, Circuit Judge.

The City of New York filed its claim against the estate of National Studios, Inc., a bankrupt adjudicated in the District Court for the Southern District of New York, for taxes on sales of tangible personal property imposed by local laws for the period beginning December 10, 1934, and ending January 10, 1939. Priority was claimed under Sec. 64, sub. a (4), of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a (4), and the claim, the amount of which has been adjusted by agreement and stipulated, was granted priority by the referee and so allowed. On review the District Court denied priority and this appeal raises only that issue. It was also stipulated that only part of the amount of the claim was for taxes actually collected by the bankrupt from its vendees; the remainder being for what the bankrupt failed to collect though required so to do.

118 F.2d 330

The local laws involved are known as No. 20, published as No. 21, of 1934, p. 143, as amended; No. 29 of 1935, p. 147; No. 31 of 1936, p. 145; No. 20 of 1937, p. 239; and No. 21 of 1938, p. 263, adding Administrative Code, § N41-1.0 et seq. Whether or not the claim is entitled to priority depends upon whether under their provisions the bankrupt was liable to the city as a taxpayer who owes a tax or as a tax collector who owes as a debt the amount of taxes collected or to be collected. Nolte v. Hudson Nav. Co., 2 Cir., 8 F.2d 859; United States v. Baltimore & Ohio R. R. Co., 17 Wall. 322, 21 L.Ed. 597; Commonwealth of Pennsylvania v. York Silk Mfg. Co., 3 Cir., 192 F. 81; In re Goldstein, D.C., 13 F.Supp. 991; In re Waller, D.C., 142 F. 883. These local laws are all substantially alike except that the 1938 law, which became effective on July 1, in that year contained the phrase "the vendor shall be liable for the collection thereof and for the tax", section N41-2.0, which was new language but merely stated more concisely what was the effect of the prior laws, and the appellant does not rely upon that change for any distinction between what is due under the 1938 law and the ones previously in effect.

The first law which is Local Law No. 20 of 1934 (erroneously given number 21 in the compilation published at Albany) as amended by Local Law No. 24 (erroneously numbered 25 in the compilation, p. 164) is typical of all and the entire claim will be treated as though it were based on taxes assessed thereunder.

In section 2 a tax is imposed upon receipts from every sale of tangible personal property sold at retail in the City of New York, and it is provided that the tax shall be stated and charged separately from the sale price when the sale is made or evidence of it issued and "shall be paid by the purchaser to the vendor, for and on account of the city of New York, and the vendor shall be liable for the collection * * *." The vendor is given the same right in respect to the collection of the tax from the purchaser "as if the tax were a part of the purchase price of the property * * * and payable at the time of the sale." In section 4 the vendor is required to keep records of receipts from sales and of the taxes payable thereon, and in section 5 the duty is placed upon him to file returns quarterly or otherwise as the comptroller may permit or direct. Section 6 deals with the payment of the taxes. It provides that each vendor shall, at the time of filing a return, pay the taxes to the comptroller upon the receipts required to be included in such return and that all taxes for the period for which a return is required to be filed shall be due from the vendor...

To continue reading

Request your trial
4 practice notes
  • City of New York v. Feiring, No. 863
    • United States
    • United States Supreme Court
    • May 26, 1941
    ...aside the referee's order allowing the priority and the Court of Appeals for the Second Circuit affirmed, In re National Stu ios, Inc., 118 F.2d 329, 330, holding that the sum claimed was not a tax, but that the 'bankrupt was liable to the city as a taxpayer who owes a tax or as a tax colle......
  • In re Columbia Tobacco Co., No. 38047.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 10, 1941
    ...involved are to be deemed to fall within the decision of the Circuit Court of Appeals in the Matter of National Studios, Inc., 2 Cir., 118 F.2d 329, decided March 17, 1941, or In that case the City sales tax was interpreted to mean that a bankrupt, being the vendor, was not to be regarded a......
  • United States v. State of New York State of New York v. United States, Nos. 238
    • United States
    • United States Supreme Court
    • March 2, 1942
    ...rather than for taxes. As authority for this view it relied upon its decision of the same date in City of New York v. Feiring, 2 Cir., 118 F.2d 329. The city sales tax involved in that case was laid upon receipts from sales of personal property. The vendor was required to collect the amount......
  • Union Terminal Co. v. Pickett, No. 9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1941
    ...fix the amount of compensation for porter service is repugnant to the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., as discriminating 118 F.2d 329 in favor of the passenger who pays less and against one who pays more. But if they can urge it, and if this is a transportation service requ......
4 cases
  • City of New York v. Feiring, No. 863
    • United States
    • United States Supreme Court
    • May 26, 1941
    ...aside the referee's order allowing the priority and the Court of Appeals for the Second Circuit affirmed, In re National Stu ios, Inc., 118 F.2d 329, 330, holding that the sum claimed was not a tax, but that the 'bankrupt was liable to the city as a taxpayer who owes a tax or as a tax colle......
  • In re Columbia Tobacco Co., No. 38047.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 10, 1941
    ...involved are to be deemed to fall within the decision of the Circuit Court of Appeals in the Matter of National Studios, Inc., 2 Cir., 118 F.2d 329, decided March 17, 1941, or In that case the City sales tax was interpreted to mean that a bankrupt, being the vendor, was not to be regarded a......
  • United States v. State of New York State of New York v. United States, Nos. 238
    • United States
    • United States Supreme Court
    • March 2, 1942
    ...rather than for taxes. As authority for this view it relied upon its decision of the same date in City of New York v. Feiring, 2 Cir., 118 F.2d 329. The city sales tax involved in that case was laid upon receipts from sales of personal property. The vendor was required to collect the amount......
  • Union Terminal Co. v. Pickett, No. 9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1941
    ...fix the amount of compensation for porter service is repugnant to the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., as discriminating 118 F.2d 329 in favor of the passenger who pays less and against one who pays more. But if they can urge it, and if this is a transportation service requ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT