Opinion
June 10, 1993
At issue here is whether substantial evidence supports the determination of respondent Tax Appeals Tribunal that petitioners, longstanding New York domiciliaries, continued their status as domiciliaries for the years 1983 through 1985 notwithstanding the 1983 purchase of a Florida condominium and, as such, were required to pay New York State and New York City income taxes for those years. We conclude that the determination is supported by the requisite evidentiary basis and accordingly confirm.
It is well established that an individual's original or selected domicile continues until there is a clear manifestation of an intent to acquire a new one (see, e.g., Matter of Kaskel v New York State Tax Commn., 111 A.D.2d 431, 432). To establish a change, the proponent bears the burden of proving, by clear and convincing evidence, that he or she obtained a new residence, actually resided there and intended to make the new location a fixed and permanent home (see, e.g., Matter of McKone v. State Tax Commn., 111 A.D.2d 1051, 1053-1054, affd 68 N.Y.2d 638; Matter of Bodfish v. Gallman, 50 A.D.2d 457, 458). While any evidence reflective of intent is admissible, because the interests of others often are involved, a party's statements of intent are accorded little or no weight and the emphasis is placed rather upon his or her conduct and other informal factors (see, Matter of McKone v. State Tax Commn., supra).
Here, the evidence established that the Florida condominium was purchased in the same year petitioner Eli Kornblum (hereinafter Kornblum) retired. Shortly after purchase, Kornblum obtained a Florida driver's license, obtained a local library card and became active in the condominium association. In addition, petitioners both voted in Florida in 1984 and 1985. However, it is also uncontroverted that petitioners were not full-time Florida residents from 1983 to 1985. They maintained their New York home, moved no household furnishings from it to Florida, continued electric, telephone and other services to it, and traveled between the two locations throughout the year. They continued to maintain their safe deposit box in a New York bank, held two New York bank accounts and left their investments for management by the New York office of a national investment service. In addition, petitioner Beatrice Kornblum continued to treat with a New York physician.
Based upon the foregoing evidence and review of a long line of well-established precedent involving similar situations, we conclude that the above-noted New York contacts, particularly the fact that the New York house was maintained, the furniture remained, telephone and utility service were continued as were certain banking habits, provides a sufficient evidentiary basis to support respondents' position (see, Matter of Clute v. Chu, 106 A.D.2d 841; Matter of Smith v. State Tax Commn., 68 A.D.2d 993; Matter of Thibault v. State Tax Commn., 50 A.D.2d 1045; cf., Matter of Kaskel v. New York State Tax Commn., 111 A.D.2d 431, supra). Admittedly, petitioners have established strong ties to Florida, albeit partially through "formal declarations" of domicile such as voter registration or vehicle registration. However, because we are not at liberty to substitute our judgment for a reasonable determination by the agency which is supported by substantial evidence simply because it is possible reasonably to reach a different conclusion based upon the evidence presented, even if it could be said that, after taking into account the decreased weight traditionally accorded formal declarations (see, e.g., Sears v. New York State Div. of Human Rights, 73 A.D.2d 913, 914, lv denied 49 N.Y.2d 705), petitioners' evidence reasonably supports a finding of changed domicile, such, standing alone, still is not a basis for our intervention (see, Matter of Clute v. Chu, supra; see also, Matter of Mercer v. State Tax Commn., 92 A.D.2d 636).
Petitioners' alternative argument, that the Tax Appeals Tribunal also erred in finding them nonresident domiciliaries within the meaning of Tax Law § 605 (b) (1) (B) for the years in question, has been rendered academic by our decision upholding the determination that they were in fact domiciliaries.
Mikoll, J.P., Yesawich Jr., Crew III and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.