A New York State Administrative Law Judge has found that a former New York University professor had not changed his domicile from New York to Florida and that he was taxable as a New York domiciliary. Matter of Jeremy Wiesen, DTA No. 826284 (N.Y.S. Div. of Tax App., June 1, 2017).

Facts. Mr. Wiesen had rented a rent-stabilized apartment in New York City since August 1980, and lived in it as his primary residence. He acquired a residence in East Hampton, New York in 1999, that he continued to own, maintain, and use during the 2007 and 2008 years in issue. He had also purchased a condominium in West Palm Beach, Florida in 2002, and then acquired the apartment next door in 2004. Mr. Wiesen claimed that he changed his domicile to Florida when he vacated his New York City apartment in May 2007, and turned it over to his son, for whom he attempted to obtain a lease under the terms of New York's rent stabilization laws, communicating with the rent stabilization board from the New York City address.

Mr. Wiesen left New York in 2007 when he retired from New York University, pursuant to the terms of a Confidential Agreement between Mr. Wiesen and NYU which resolved a lawsuit for claimed damage to his reputation, emotional distress, and pain and suffering, and under which NYU agreed to make certain payments to Mr. Wiesen totaling over $2 million, less deductions for items such as payroll taxes and withholding. NYU issued a 2007 W-2 and 2007 and 2008 Forms 1099-Misc to Mr. Wiesen listing his New York City apartment as his address.

Mr. Wiesen filed a New York nonresident and partyear resident return for 2007, but only filed an extension of time to file with New York for 2008. The Department of Taxation and Finance audited the 2007 and 2008 years, requesting responses to a questionnaire, documentation concerning Mr. Wiesen's various residences, and various records to establish the number of days spent inside and outside New York. Mr. Wiesen answered the questionnaire and provided documentation including an application for a homestead exemption for his Florida condominium; a Florida driver's license, which was issued on March 30, 2007; a Florida vehicle tag number and a declaration of Florida domicile; evidence that he registered to vote in Florida in 2004; and credit card receipts, calendars, and other documents designed to address the Department's contentions that he spent more than 183 days in New York during 2007 and 2008. He also submitted several letters, all dated in 2008, that requested that his son succeed to his New York City apartment as a successor tenant under the rent stabilization laws, as well as a two-year renewal lease executed for that apartment in May 2008.

After the audit, the Department concluded that Mr. Wiesen remained a New York domiciliary in 2007 and 2008, or, in the alternative, that he was a statutory resident, since he continued to maintain a permanent place of abode and was present in New York for more than 183 days in 2007 and 2008.

ALJ Decision. The ALJ dealt only with the issue of whether Mr. Wiesen was domiciled in New York during 2007 and 2008, and readily concluded that he was. The ALJ noted that, under New York law, an historic domicile is deemed to continue unless the party claiming a change of domicile proves the change by clear and convincing evidence. The test also looks to intent, and whether the purported new domicile has "the range of sentiment, feeling and permanent association" to establish a true new domicile. After reviewing the record, which was made by written submission without any oral testimony, the ALJ determined that the facts did not demonstrate that Mr. Wiesen gave up his New York domicile in 2007 and acquired one in Florida. She noted, among other facts, that Mr. Wiesen continued to use and maintain his historic New York apartment for himself and his son during 2007 and 2008; that he executed a two-year lease renewal in May 2008; that he received mail concerning rent stabilization, ownership, property management, phone service, and credit cards at this New York address; and that he had not submitted any evidence of a claimed pattern of commuting from West Palm Beach to New York City. Also, after noting that family ties are a relevant factor, the ALJ found that Mr. Wiesen's son resided in the New York City apartment during 2007 and 2008.

The ALJ discounted the significance of such factors as the Florida voting registration and application for homestead exemption, dismissing them as "formal declarations [that] are less significant than informal acts demonstrating an individual's general habit of life." Finally, the ALJ found there was no evidence of a subjective intent to abandon the New York domicile, such as an affidavit from Mr. Wiesen or any persons familiar with him. Therefore, she found that he remained a New York domiciliary. The ALJ did not address whether he was present in New York for more than 183 days in 2007 or 2008 and thus taxable as a statutory resident. She also sustained the imposition of penalties, finding that no reasonable cause had been articulated.

Additional Insights

Just as in the residency case decided by the Tax Appeals Tribunal (see discussion of the Ruderman decision on page 2), this case also turned on whether sufficient facts had been developed and introduced to carry a petitioner's burden by clear and convincing evidence. In the case of a New York domiciliary such as Mr. Wiesen, the burden to establish a change is always high, and particularly difficult because demonstrating the subjective intent to change a domicile can be challenging, but it can be done, as is demonstrated by the Patrick decision discussed above on page 1.

Several factors have been developed by the Tribunal and the Department itself in its Audit Guidelines for cases involving multiple residences, such as the amount of time spent in each, the location of family, and the demonstration of where "near and dear" items were maintained. Mr. Wiesen, who appeared pro se, does not seem to have been able to demonstrate, by documentary evidence or by affidavit, that enough of those factors had shifted to Florida, which, when combined with the correspondence with the rent stabilization board and the signing of a renewed lease for his New York apartment, led the ALJ to conclude that he had failed to sustain his burden of proof on the issue of domicile.