I dissent to the extent that the majority holds the retroactive application of the 2009 Amendments unconstitutional.
*252The question of when a tax statute may be made retroactive is one on which the decided cases provide frustratingly little guidance. It is clear that some retroactivity is allowed, but not too much. If we ask how much is too much, we are told to consider whether “retroactive application is so harsh and oppressive as to transgress the constitutional limitation” (Welch v Henry, 305 US 134, 147 [1938])—guidance hardly more useful than being told to decide whether the State or the taxpayer wins the case. United States v Carlton (512 US 26, 30 [1994]) says that the Welch formulation “ ‘does not differ from the prohibition against arbitrary and irrational legislation’ that applies generally to enactments in the sphere of economic policy” (quoting Pension Benefit Guaranty Corporation v R. A. Gray & Co., 467 US 717, 733 [1984]). Carlton also says: “Tax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code” (512 US at 33). Yet the Carlton opinion itself examines a retroactive tax statute more minutely than the language I have quoted would seem to suggest, stressing the benign motive of Congress (id. at 32) and the promptness with which Congress acted (id. at 32-33). Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y. (70 NY2d 451, 456 [1987]) establishes a balancing test and lists the factors to be considered, chief among which are “the taxpayer’s forewarning of a change . . . and the reasonableness of his reliance,” but it is no more precise than other authorities in stating the question that the balancing is supposed to answer.
I do not have a formula for bringing great clarity and certainty to this area. But I think the majority creates more confusion by saying, in substance, that the “property” that is protected by the Due Process Clause is different from the property rights protected by other clauses of the Constitution (majority op at 246-247). I would approach retroactive taxation cases in the opposite way: I think it is helpful, and consistent with precedent, to ask whether it was reasonable for the taxpayer to rely on favorable tax treatment as it might rely on a property or contract right protected under the Takings Clause or the Contract Clause of the Constitution. This, it seems to me, is the idea suggested by the traditional term “vested right”—a term long out of fashion (see Matter of Chrysler Props. v Morris, 23 NY2d 515, 521 [1969]), but at least as useful as any of the terminology used in later cases. The approach I suggest would by no means eliminate the vagueness that pervades this area of the law; nor would it supersede the Replan balancing test. But I think it may help to clarify the question we are trying to answer when we apply Replan.
*253Rejecting this approach, the majority seems to say that the difference between a retroactive tax statute that is a taking and one that only violates due process is between one that is so “arbitrary” as not to be “the exertion of taxation” at all (majority op at 247, quoting Kitt v United States, 277 F3d 1330, 1337 [Fed Cir 2002]; Brushaber v Union Pacific R. Co., 240 US 1, 24-25 [1916]), and one that is less arbitrary but still fails the test of “fairness” (majority op at 248). The majority does not say how courts are to distinguish the greater unfairness from the lesser one, nor explain why it is useful to do so. Nor does it explain how this distinction squares with Carlton’s statement, which I quoted above (at 252) that only “arbitrary and irrational” retroactive tax legislation violates the Due Process Clause. I think it is the majority’s approach, not mine, that “unnecessarily complicates the law” (majority op at 247).
Applying the approach I think correct to this case, I cannot see that the taxpayers were justified in relying on their Empire Program certifications as though they were property or contract rights. In general, as Carlton makes clear, taxpayers are on notice that the tax laws are subject to change. The balancing of the Replan factors, as I would perform it, favors the State. The length of the retroactive period, even putting it at 32 months, was not outrageous; and for 19 of those 32 months—from the time the Governor proposed the 2009 Amendments, in January 2009, until the retroactive legislation was enacted in August 2010—it was public knowledge that a change retroactive to January 1, 2008 was being sought. Indeed, after the 2009 Amendments were passed in April 2009, the Governor and his appointees openly stated their belief that retroactivity had already been accomplished; even if they were wrong, the very debate on the subject gave the taxpayers reason to be cautious in relying on their certifications. The reason for the retroactive amendments was, as the majority acknowledges, to remedy “weaknesses in the Empire Zones Program” (majority op at 248) and “to stem abuses” in that program (id. at 250). The majority says that the legislation was not designed “to correct an error” (id. at 249)—but the distinction between correcting errors and stemming abuses is a thin one, if it exists at all. It is also true, of course, that the legislation was designed to raise revenues and balance the budget—but that is what all taxation does.
I would hold this legislation to be constitutional.
*254Judges Graffeo, Read, Pigott and Rivera concur with Chief Judge Lippman; Judge Smith dissents in an opinion; Judge Abdus-Saiaam taking no part.
In James Sq. Assoc. LP v Mullen, Matter of J-P Group, LLC v New York State Dept. of Economic Dev., Matter of Morris Bldrs., LP v Empire Zone Designation Bd. and Matter of Hague v Empire Zone Designation Bd.: Order, insofar as appealed from, affirmed, with costs.
Judges Graffeo, Read, Pigott and Rivera concur with Chief Judge Lippman; Judge Smith dissents in part in an opinion; Judge Abdus-Saiaam taking no part.
In Matter of WL, LLC v Department of Economic Dev.: Order affirmed, without costs.