Use your browser's "back" button to return to the text.Matter of GETZ DTA No. 809134; TSB-D-93-(110)I STATE OF NEW YORK-TAX APPEALS TRIBUNAL June 10, 1993
The Administrative Law Judge held that the conduct most problematic but not conclusive was petitioners' maintenance of the New York house, regular returns to the New York house and Mr. Getz's on-going relationship with Norstar Bank and the Albany Country Club.
With reference to the New York house, the Administrative Law Judge held that petitioners' [*20] maintenance of the New York residence was multi-purpose, in that it not only provided petitioners with a place to stay during their visits but also provided petitioners' son with a place to live. As a result, the Administrative Law Judge concluded that petitioners have dispelled the notion that the New York home was maintained purely out of sentiment, feeling or any sense of permanent association and that petitioners' conduct with respect to maintaining their Delmar house by itself does not necessarily contradict their formal declarations of a change of domicile.
The Administrative Law Judge held that petitioners' formal declarations also are not necessarily contradicted by petitioners' travel to New York during the summer months or during the December holidays because such patterns of travel could be the same for retired New York and Florida residents. The Administrative Law Judge stated that the question is whether petitioners' overall conduct provides clear and convincing evidence that they changed their domicile to Florida and, in this regard, Mr. Getz's respective community ties in New York and Florida are relevant.
The Administrative Law Judge discussed in great length the [*21] respective community ties, such as petitioner's membership in the Albany Country Club and the golfing facilities available to petitioner through his condominium association in Florida, as well as petitioner's attendance as a board member of Norstar Bank at both regional board meetings and executive meetings and petitioner's serving as president and as a member of the board of directors of the condominium association in Florida.
The Administrative Law Judge also discussed other informal conduct by petitioners such as maintaining a checking account in Florida and a savings account in New York. The Administrative Law Judge's ultimate conclusion was that any one of the factors discussed by itself was not sufficient to contradict the formal declarations of a change of domicile; however, given the aggregate of all these factors and the standard of proof that petitioners must sustain to show a change in domicile, it could not be concluded from the record that petitioners effected a permanent change in domicile from New York to Florida. Further, while petitioners may have very well intended Florida to be their permanent domicile, their "general habit of life" indicated, at best, an equal [*22] commitment to both locations. Thus, the Administrative Law Judge determined that petitioners have not established by "clear and convincing" evidence that they effected a change in domicile to Florida for the years in question.
The Administrative Law Judge also held that while petitioners claim they did not spend more than 183 days of each taxable year within New York State, they submitted no documentation to substantiate this claim, as credit card slips were not presented into evidence and Mrs. Getz, who prepared the travel log based on her memory, was not made available for testimony or cross-examination.
Further, in the order denying petitioners' motion for a rehearing, the Administrative Law Judge held that: 1) the distinction which petitioners seek to be made on rehearing does not constitute newly-discovered evidence which could not have been discovered at the time of the initial hearing nor which would have produced a different result; 2) petitioners may not use a motion for rehearing to relitigate issues and present additional evidence that was available at the time of the hearing; 3) an amended determination correcting the typographical error contained in Finding of Fact [*23] "20" would be issued; 4) contrary to petitioners' assertions, there was no indication during the course of the hearing that petitioners were not aware that they had the burden of proof with respect to their case or that all relevant evidence in support of their position was to be presented at the hearing date; and, 5) there is no basis to petitioners' allegation that they were deprived of their right to a full and fair opportunity to present their case.
On exception, petitioners allege in their appeal brief and memorandum filed May 13, 1992 that: 1) the clear and convincing evidence supports a finding that petitioners were domiciliaries of Florida for the years 1986, 1987, and 1988; 2) while petitioners conceded that they spent more than 183 days in New York in 1987 due to the health and an extended hospital stay of petitioner, this concession should not be a deciding factor in terms of petitioners' extensive efforts to change their domicile; 3) the decision of the Administrative Law Judge is not correct, nor is it fair and reasonable under all of the facts and circumstances; and 4) the decision should be reversed and petitioners' status as domiciliaries of Florida be acknowledged, [*24] and except for the year 1987, petitioners should be adjudicated as non-residents of New York State.
Petitioners argue in their brief filed January 11, 1993 that: 1) they did change their domicile and did all that could be reasonably necessary to confirm their intention while maintaining minimal contacts with their prior domicile; 2) the Administrative Law Judge examined petitioners' record and in most cases decided the facts in favor of petitioners; 3) because the Administrative Law Judge's conclusions are against petitioners without any major findings supporting the conclusions, such reasoning is wrong as a matter of law and cannot be supported by the record or the findings; 4) there is never a "magic date" where all ties to New York are suddenly severed at midnight on a given day; and, 5) so long as petitioners do all the proper objective acts and earnestly and honestly do all other acts consistent with the legal concept of change of domicile, they should not be penalized and taxed by New York State because the Division is able to apply some yet-to-be defined standard which is merely a compilation of incidental factors, thereby placing a "burden of proof" upon petitioners which [*25] is unreasonable and unwarranted by the total factual situation.
The Division argues that petitioners were resident individuals of New York State for the audit period by reason of their being domiciled in this State since: 1) there can be no serious question that petitioners maintained a permanent place of abode at Windsor Court, Delmar, New York during the audit period; 2) petitioners' stated reasons for not selling the house are of no consequence; 3) the relative size of the respective residences in New York and Florida does not support petitioners' claim of a change of domicile; 4) during the audit period Mr. Getz made numerous trips from Florida to New York for the purpose of fulfilling his duties on the Norstar Board of Directors; however, there is no showing of such trips from New York to attend meetings of the Board of Governors of his Florida condominium; and, 5) the record makes clear that many strong emotional ties to New York conflicted with Mr. Getz's efforts to demonstrate his intention to change his state of domicile.
The Division further argues that it is the obligation of petitioners to keep and have available for examination adequate records establishing that they [*26] did not spend more than 183 days of each taxable year in New York State, and by reason of their failure to prove that they did not spend, in the aggregate, more than 183 days of 1986 and 1988 in New York State, petitioners were resident individuals of New York State.
Finally, the Division argues that since petitioners have failed to meet their burden to show a change in domicile and failed to demonstrate that they are not statutory residents, the Notice of Deficiency should be, in all respects, sustained.
After reviewing the allegations presented to us on exception and the record before us, we find no basis for modifying the determination of the Administrative Law Judge in any respect. Therefore, we affirm the determination of the Administrative Law Judge for the reasons stated in said determination.
Accordingly, it is ORDERED, ADJUDGED and DECREED that:
1. The exception of Colin W. and Delma K. Getz is denied;
2. The determination of the Administrative Law Judge is affirmed;
3. The petition of Colin W. and Delma K. Getz is denied; and
4. The Notice of Deficiency dated July 16, 1990 is sustained.
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