N.Y. Tax Law § 260: Determination and apportionment by the state tax commission

§ 260. Determination and apportionment by the state tax commission.

When the real property covered by a mortgage is situated in more than

one tax district, the state tax commission shall apportion the tax paid

on such mortgage between the respective tax districts upon the basis of

the relative assessments of such real property as the same appear on the

last assessment-rolls. 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 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 apportionment. If such mortgage covers

real property in two or more counties, the tax commission shall

determine the proportion of the tax which shall be paid by the recording

officer who has received the same to the recording officers of the other

counties in which are situated the tax districts entitled to share

therein. When any recording officer shall pay any portion of a tax to

the recording officer of another county, he 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 signature. The tax commission 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 to determine what portion of the mortgage or of advancements

thereon shall be taxable under this article. Such determination 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

transmitted by him to the state tax commission. The tax payable under

this article before the determination by the tax commission 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

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 shall consider

only the tangible property, real and personal, except that leases of

real property shall be deemed tangible property. For the purpose of

determining such value the tax commission may require the mortgagor or

mortgagee to furnish by affidavit or verified report such information or

data as it 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 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 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 shall consider each advancement made upon a mortgage after

July first, nineteen hundred and six, as a new mortgage. In all cases

under this section where the provisions for distribution of the tax

among tax districts are inapplicable or inadequate, the tax commission

shall establish a basis of apportionment that will be equitable and

fair.