For the prosecutors, Samuel D. Williams.
For the defendant, Edward P. Stout and Spaulding Frazer.
Before Brogan, Chief Justice, and Justices Lloyd and Donges.
The opinion of the court was delivered by
DONGES, J. These writs of certiorari bring up two judgments of the state board of tax appeals setting aside apportionments of the gross receipts taxes paid by the Public Service Gas and Electric Company for the years 1933 and 1934, and directing that the apportionments be made on the basis of valuations returned by the local boards of assessors of the various municipalities affected.
Under the Gross Receipts Tax act, chapter 25 of the laws of 1919, the local assessors are required to certify to the county boards and the county boards to the state tax department, the value of the personal property described in the act owned by corporations paying this tax, located in the taxing district. The tax commissioner is required to make an apportionment based on the value of the personal property so located.
The tax commissioner had a tax engineer, one Farley Osgood, make a survey of the valuation situation and Osgood made a report thereon, recommending a unit capacity basis for valuing the property. It was calculated by him that a certain plant value was required to produce a kilowatt-hour of electricity or a hundred cubic feet of gas. The plant capacities in the various taxing districts were ascertained
and a valuation placed on this basis. The tax commissioner then adopted this valuation for the apportionment instead of using the valuations of the assessors as had been theretofore done.
On appeal to the state board of tax appeals, that body held that the basis adopted was unwarranted and illegal, set the apportionment aside, and directed an apportionment on the basis of the assessed valuations.
The first point argued is that the state board committed error in entertaining the appeal of the city of Hoboken as to the 1933 taxes because the appeal was not taken until ten months after the apportionment. The statutes creating and regulating the present state board of tax appeals, chatpers regulating the present state board of tax appeals, chapters 100 and 336 of the laws of 1931, give the board power to make reasonable rules and regulations governing appeals to it. The board has made a rule that appeals must be taken within one year and it is argued that this length of time is unreasonable and arbitrary. We do not agree with this contention. One year is allowed for appeals from final judgments in courts of law and final decrees in chancery, and we see nothing unreasonable in permitting this length of time for appeals in tax matters.
Point two is that the board should not have entertained the appeals because the city of Hoboken in its petition of appeal failed to allege facts upon which it can be shown that it was peculiarly aggrieved by the apportionments. The petition alleged the assessment by the local assessors and the amount thereof; it alleged that the "state tax commissioner completely ignored and disregarded same and made an independent, illegal and arbitrary valuation of said personal property;" and that as a result Hoboken received a smaller share of the tax than it was entitled to. This seems a sufficient allegation of interest. It is argued that the tax in question is not a property tax but in the nature of a franchise tax and that, therefore, a municipality has no right to complain even if it be assumed that the ...