Use your browser's "back" button to return to the text.Matter of RAUSCHER DTA No. 810567; TSB-D-94-(14)I STATE OF NEW YORK-TAX APPEALS TRIBUNAL May 12, 1994
Opinion - The Administrative Law Judge determined that petitioners did not abandon their New York domicile until 1988. In support of his conclusion, the Administrative Law Judge relied on, among other factors, an entry in Mrs. Rauscher's diary made in 1988 which stated clearly petitioners' intention of abandoning their New York domicile. The Administrative Law Judge also determined that during the years in issue the following actions of petitioners support a conclusion that they did not abandon their New York domicile until 1988: (1) petitioners' 1987 nonresident return shows involvement in the real estate business; (2) petitioners received mail at a post office box in Wainscott, New York; (3) Mr. Rauscher employed a secretary who performed bookkeeping [*11] and rent collecting tasks; (4) petitioners maintained a telephone line in New York; (5) petitioners retained driver's licenses in New York and car and trailer registrations in New York; (6) Mr. Rauscher retained a New York attorney as "trustee" for his properties; and (7) petitioners retained New York bank accounts.
The Administrative Law Judge found that petitioners' declaration of Florida domicile, Florida voting registration and homestead exemption are not as persuasive in establishing domicile as the above actions of petitioners. The Administrative Law Judge also found that petitioners failed to introduce any evidence as to their general habits of life, e.g., social ties, to support their claimed change of domicile.
On exception, petitioners continue to argue that they meet every single requirement to establish domicile in Florida and their intent to abandon New York as their domicile has been clearly demonstrated by their actions. Petitioners also continue to argue that the Administrative Law Judge erred or improperly phrased several findings of fact. Specifically, petitioners argue that the Administrative Law Judge erred when he stated that the secretary was employed for [*12] 2 and 1/2 days per week. Petitioner states that "Mr. Messner was paid for only 1/2 day Tues. & 1/2 day Thurs." (Petitioners' exception, p. 1). Petitioners also argue that, with respect to the registration of his car in New York, the Administrative Law Judge "failed to tell the full story on this issue" (Petitioners' exception, p. 1). Petitioners assert that the car was registered in New York by mistake. In addition, Mr. Rauscher asserts that he surrendered his New York driver's license in May of 1977. Finally, petitioners argue that, although they had property in trust with a lawyer in New York, they also had property in trust with lawyers in Vermont and North Carolina.
In response, the Division of Taxation states that petitioners have raised no new arguments on exception and it will rely on its hearing brief and the determination of the Administrative Law Judge. The Division asks that the Administrative Law Judge's determination be sustained in full.
In their reply brief, petitioners make the same arguments they made in their exception and brief in support.
With respect to Mr. Rauscher's assertion that he surrendered his driver's license in May of 1977, the Department of [*13] Motor Vehicles searches indicate that Mr. Rauscher's license was surrendered to the State of Florida on May 1, 1987 (see, Exhibits "T" and "U"). Thus, the Administrative Law Judge's finding of fact was based on the record. Petitioners remaining arguments are the same arguments made before the Administrative Law Judge. Because the Administrative Law Judge adequately addressed these arguments, 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 Leonhardt L. and Kathryn H. Rauscher is denied;
2. The determination of the Administrative Law Judge is affirmed;
3. The petition of Leonhardt L. and Kathryn H. Rauscher is denied; and
4. The Notice of Deficiency dated May 28, 1991, as modified by the Conciliation Order dated February 7, 1992, is sustained.
Use your browser's "back" button to return to the text.