People ex rel. Brooklyn Rapid Transit Co. v. Miller

The only contention in this court "is whether the relator’s average bank balance for the year ending October 31, 1901, is capital employed within this State.

It has been repeatedly held that a reasonable amount of cash held for use in the ordinary course of business of a-corporation is a part of its capital on which a franchise tax should be paid. The relator contends that the amount of cash deposited by it in banks during the year was largely in excess of its requirements, and' that the amount thereof less an average of $100,000 should be deducted from the amount of the capital on which the franchise tax was computed. The relator had a bonded indebtedness of $7,000,000, and it was necessary for it to have money to pay the semi-annual *181interest on such indebtedness, and it was also necessary for it to have money to pay taxes and incidental expenses. While the company did not have a salary list or payroll and did not own or run a railroad, and did not require money in the ordinary course of its business for running expenses like a transportation corporation, it appears that it owned large amounts of stock of numerous street railroad corporations and had furnished and was furnishing such street railroad corporations money for construction, which it carried as a charge against said corporations under the head of “ construction advances ” as a part of its capital. To “ purchase, acquire, hold and dispose of the stocks, bonds and other evidences of indebtedness of any corporation ” made the temporary holding of large sums in cash necessary and to be expected in the ordinary course of its business.

The express purposes for which the company was formed was to construct, extend, repair, improve, equip and furnish motive power for railroads and other works, and aid corporations and individuals in such construction, extension, repair, improvement, equipment and furnishing of motive power and the exercise of its said corporate duties in connection with its interests as shown by the amount of its capital stock and its investments would require that it have at ready command a large amount of cash for immediate use. The largest part of the bank balance shown during the year was obtained in April by the sale of bonds owned by the relator which were á part of a larger amount of bonds taken in a transaction, a part of which consisted of a contract on the part of the relator to expend $1,500,000 on the property owned by the company whose bonds the relator had acquired. The money received from the bonds sold in April was in part intended to be used in carrying out that contract, and at the end of said year relator had paid thereon $600,000 and there was owing on that contract $840,000, which contract was then in the process of completion. The cash on hand at the end of each month, although distributed among several banks, was a general balance and the relator never separated any part of it as idle, uninvested or unemployed funds. It appears that at the time of the hearing before the Comptroller, April 16, 1902, at least two-thirds of the balance on hand at the end of the year had been actually expended in new construction of railroads in which the *182relator was largely interested. All the bonds sold in April, 1901, “ were originally acquired with the intention of selling them when the time was right in order to acquire funds for investing in railroad properties.” They were doubtless sold by the relator because “ the time was right,” and also because the money was desired for use from time to time in carrying out its contracts and in continuing the woi’k for which it was expressly organized. Under the peculiar statement of the purposes for which the relator was organized it is difficult in fixing the franchise tax to distinguish any real difference between an amount temporarily in bank drawing interest and a similar amount invested in interest-bearing bonds given by some of the companies in which the relator was interested. The Comptroller has found that the cash held by the relator in different banks as stated was a part of the capital on which the franchise tax should be computed, and we cannot say that he was in error in such determination. The determination of the Comptroller should be confirmed, with fifty dollars costs and disbursements. ■

Determination of the Comptroller unanimously confirmed, with fifty dollars costs and disbursements.