Opinion
July 30, 1935
Albert Ross for plaintiff.
Paul Windels, Corporation Counsel, for defendants.
Plaintiff, a vendor of gum sold to the public through the medium of vending machines for the price of one cent for each piece of gum, seeks to enjoin the Comptroller of the City of New York from collecting the taxes under Local Law No. 24 of the City of New York for 1934, known as the Sales Tax. I can see no valid basis for interfering with the defendant in the collection of the tax. The plaintiff contends that if it is to pay the tax it would be necessary for it to violate the law because the law forbids a person selling property or service subject to the tax to absorb the tax. It would seem that the plaintiff misinterprets the provisions of the law. Section 3, which authorizes the Comptroller to prescribe regulations for a method or schedule as to the amounts to be collected from the purchasers also provides "such schedule or schedules may provide that no tax need be collected from the purchaser upon receipts below a stated sum." Plaintiff also contends that it is discriminated against, but this does not appear to be the fact, as everybody who sells articles for twelve cents or under is in the same position as the plaintiff. The mere fact that the plaintiff specializes in the sale of articles for one cent does not make the method of collection a discrimination against the plaintiff where as here everybody is in the same position with regard to the sale of articles below twelve cents. There is no discrimination within the plaintiff's classification.
Plaintiff's application is without merit and must be denied.