MoFo New York Tax Insights, Volume 2, Issue 7
Mondaq Business Briefing › United States Law Articles in English (2011)
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MoFo New York Tax Insights, Volume 2, Issue 7
Tribunal Reverses Itself in Gaied "Permanent Place of Abode" Decision
By Irwin M. Slomka In a decision that will undoubtedly generate further debate regarding the statutory residency rule, the New York State Tax Appeals Tribunal, in a majority decision, has taken the rare step of withdrawing its earlier decision, which involved the "permanent place of abode" definition, and reversing itself by holding that an individual's Staten Island home occupied by his parents was, after all, his permanent place of abode for statutory residency purposes. Matter of John Gaied, DTA No. 821727 (N.Y.S. Tax App. Trib., June 16, 2011). As we reported in the April 2011 issue of New York Tax Insights, on February 24, 2011, the Tribunal granted the Department's motion for reargument of the Tribunal's July 8, 2010 decision in Gaied. In that decision, the Tribunal held that a New Jersey domiciliary's second home in Staten Island, part of which was occupied by his parents (and part leased to tenants), was not his permanent place of abode. The Tribunal had concluded that, in making its determination, it was appropriate to look to "the physical attributes of an abode, as well as its use by a taxpayer." The Department, in seeking reargument, asserted that the Tribunal had failed to reconcile the Gaied decision with its decision in Matter of Robert & Judith Roth, DTA No. 802212 (N.Y.S. Tax App. Trib., Mar. 2, 1989), where it held that "there is no requirement that the petitioner actually dwell in the abode, but simply that he maintain it." Now, following reargument, two of the Tribunal's three Commissioners have reversed the July 8, 2010 Tribunal decision, and instead held that the Staten Island property was the taxpayer's permanent place of abode. The Tribunal first concluded that its July 8, 2010 decision was in error: We have concluded upon further reflection that our July 8, 2010 decision is an improper departure from the language of the statute, regulations, and controlling precedent. A review of our decisions from both prior to and [in Matter of Barker] subsequent to our July 8, 2010 decision, indicates that where a taxpayer has a property right to the subject premises, it is neither necessary nor appropriate to look beyond the physical aspects of the dwelling place to inquire into the taxpayer's subjective use of...See the full content of this document
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