Opinion
February 18, 1971
Determination of respondent Department of Finance of the City of New York, dated September 11, 1969, assessing a deficiency in New York City business taxes owing by petitioner, unanimously modified, on the law, to the extent of striking and excluding therefrom such amounts of such business taxes, together with interest thereon, as are attributable to wholesale sales by petitioner to dealers during the period covered by said determination, and otherwise confirmed, without costs and without disbursements. The city is forbidden to collect taxes on foreign imports not yet intermingled with general property in this State and which have not entered the domestic stream of commerce ( U.S. Const., art. I, § 10; Brown v. Maryland, 12 Wheat. [25 U.S.] 419). The imported vehicles sought here to be taxed were provided with a minimal amount of service, attachment, and installation sufficient only to move them safely from dock to warehouse. "These modifications in the condition of the automobiles were really made only to complete their shipment to the warehouse. This is not the type of change which should be considered such as to destroy the constitutional immunity. * * * In the instant case the automobiles were literally still in transit and the minor modifications in their condition were made only to facilitate this transportation. The changes made in these items were made of practical necessity and as such were not sufficient to terminate the immunity which imports have from state taxation." ( Standard-Triumph Motor Co. v. City of Houston, 220 F. Supp. 732, 734, revd. on jurisdictional grounds, 347 F.2d 194, cert. den. 382 U.S. 974.) Accordingly, that portion of the tax attributable to the wholesale aspect of the transaction should be remitted. Settle order on notice, to provide for the precise amount of the tax to be remitted in accordance with this disposition.
Concur — Markewich, J.P., Nunez, Steuer and Tilzer, JJ.