Opinion
July 12, 1933.
Harry M. Peyser [ Percy B. Stoddart of counsel], for the State Tax Commission.
Carl A. Espach, for the executor.
The State Tax Commission applies to vacate an order fixing the transfer tax in the above entitled estate entered June 15, 1931 and the amended order entered June 1, 1932. The taxing order was made following notice of motion by the representatives of the decedent's estate seeking "an order fixing tax on the estate of the deceased." Obviously the State Tax Commission did not oppose the motion and it was granted. Subsequently an order was submitted exempting the estate from taxation, the exemption being based upon the assumption that subdivision 2 of section 249-s of the Estate Tax Law was controlling. The order of exemption was signed by the surrogate. The statute referred to was not controlling because it did not become effective until September 1, 1930 and the decedent had died June 27, 1929. The question was not litigated before the surrogate. The order was apparently signed through inadvertence, and upon an erroneous assumption by both parties as to the effect of the statute. Under the statutes and authorities cited in the memorandum in the estate of Ferdinand H.P. Jagnow, decided herewith ( 148 Misc. 657), the surrogate was without jurisdiction to make such order of exemption and is now empowered to vacate it.
The application is, therefore, granted. Settle order on notice.