In re the Transfer Tax upon the Estate of May , 127 Misc. 542 ( 1926 )

Slater, S.

The State Tax Commission conceded that an estate for years is less than an estate for life. If the estate of the widow and son is taxed as an estate for years, the remainder will fall within the five per cent class and a greater tax will be paid to the State of New York. When section 230 of the Tax Law (as amd. by Laws of 1925, chap. 144) states that the “ highest rate ” shall be imposed, it means the rate which a beneficiary would pay under any contingency, and does not refer to the amount of money paid to the State. The “ highest rate ” which the mother or son would pay under any contingency is the rate which would be taxable to them were their interests assessed as a life estate. One of the contingencies in the instant case is that the estate of the mother or the son may be a life estate. This is the highest estate either may have. The interest of the widow and son, therefore, should be taxed as a life estate.

Decreed accordingly.