Shapiro v. State Tax Commission

Herlihy, J.

(dissenting). The petitioner, Robert M. Shapiro, was admittedly a domiciliary of New York State in 1955. At that time he moved to England and he acquired a visa from the English government which until 1959 required a yearly renewal. He also during the entire period renewed his United States passport. He alleged that he did not thereafter own or maintain a residence in New York until 1971. Throughout *194those years he continuously maintained residences in England.

The petitioner was continually employed by a parent New York corporation and its English subsidiary. The New York corporation had been founded by the petitioner’s brother and father and the petitioner was a vice-president and director of the New York corporation throughout the years he was in England. As of March 8, 1971, he was the second largest shareholder of the New York corporation and on May 27, 1971 he sold a substantial number of shares in a transaction consummated outside of New York State. That sale resulted in a large capital gain and based upon his admitted resumption of residence in New York State on July 24 or 27 of 1971, the petitioner has been assessed income taxes on that capital gain.

Upon the present record there was evidence which would have supported a finding that the petitioner was a resident (domiciliary) of New York State at all times on and after his acceptance of the presidency of the New York corporation as of April 30, 1971. At that time he owned a residence in New York State (which he chose to characterize as a "holiday home”), and he was present in New York and fully intended to become a permanent resident as was required by his employment. Based upon that evidence the finding that the sale of his stock occurred while he was a New York resident is beyond attack by judicial review (Tax Law, § 605, subd [a], par [1]). However, the respondent has not relied upon the evidence showing residence as of the time the stock was sold. Instead it found that the petitioner has not established that he ever gave up the New York domicile which he had in 1955, and since he both maintained a permanent abode in New York State and spent at least 30 days here in 1971, the income was taxable (id.).

It is well established that if there are any facts or reasonable inferences from the record evidence to support the determination of the Tax Commission, the assessment should be confirmed (Matter of Levin v Gallman, 42 NY2d 32, 34). There is a strong presumption against the acquisition of a foreign domicile (Matter of Klein v State Tax Comm., 43 NY2d 812, affg on opn below 55 AD2d 982; Matter of Newcomb, 192 NY 238, 250).

In the present case, the record demonstrates that while the petitioner intended to separate himself from the scene of domestic problems and for that purpose went to England, *195there is nothing to indicate an intent to be a domiciliary of England when he left New York. Aside from his assertion that he had come to regard England as his permanent home prior to 1971, the only evidence to suppdrt such an inference is his long-term residence there. Prior to 1968 he did not own any property in England, although in 1968 he purchased a home in Kent, but he has never resided therein, and the property was put in his English wife’s name and its sole tenant was her father.

On the other hand, the petitioner remained an employee and substantial shareholder of the New York employer throughout his English residency, he had substantial personal financial contacts with New York, he purchased a residence in New York State in 1968 and it was furnished by his brother for petitioner’s benefit upon his return. The only evidence in this record is that if he became president of the New York State employer he would have to return to New York. The position of petitioner as the younger brother of the president of the New York employer and as a substantial shareholder and vice-president of the employer reasonably implies an expectation of becoming president as he in fact did. Petitioners rely upon Matter of Brunner (51 AD2d 995, affd 41 NY2d 917) but that was a different factual pattern and is not controlling.

The petitioner has failed to present "clear and convincing evidence showing an intent to change [his] domicile” (Matter of Bodfish v Gallman, 50 AD2d 457, 459. See, also, Matter of Babbin v State Tax Comm., 67 AD2d 762.) Accordingly, the determination of the respondent is not irrational and is supported by substantial evidence.

Inasmuch as there is a reasonable basis for a finding either for or against the petitioner and the respondent has found against the petitioner, it cannot be said as a matter of law that the determination is arbitrary and capricious. The test adopted by the Court of Appeals requires only a reasonable basis for the respondent’s determination (Matter of Levin v Gallman, supra).

The determination should be confirmed.

Greenblott, J. P., and Main, J., concur with Mikoll, J.; Kane and Herlihy, JJ., dissent and vote to confirm in an opinion by Herlihy, J.

Determination annulled, without costs; petition granted and *196matter remitted for further proceedings not inconsistent herewith.