In the Matter of the Petition - Tax Appeals Tribunal

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-22- months as they were between residences. Petitioners maintain that they rented the Apricot Court, Melville, New York, townhouse to Mr. and Mrs. Sher from December 2002 to May 2003. Petitioners assert that in early 2003, they decided to purchase and build a house in Wellington, Florida, and that they made two purchase deposits totaling $57,500.00, an initial deposit of $10,000.00 on February 6, 2003 and a second deposit of $47,500.00 on March 7, 2003. Petitioners aver that they drove back from Florida to New York in May 2003 and stayed at their Apricot Court, Melville, New York, townhouse for the first weeks in May 2003. Upon deciding to sell the townhouse themselves, petitioners claim that they scheduled their first showings for the weekend of May 24, 2003 and May 25, 2003. However, they contend that those showings did not take place because the Apricot Court, Melville, New York, townhouse sustained flood damage on May 23, 2003 while they were in Las Vegas, Nevada. Petitioners assert that the repairs to the townhouse began in late June 2003 and were not finished until October 2003, during which time the townhouse was uninhabitable. They maintain that from May 23, 2003 through September 22, 2003, when they were not in Florida or traveling, they stayed in New York at friends houses or family members houses. Petitioners contend that they moved back into the Apricot Court, Melville, New York, townhouse on September 22, 2003 and put it on the market in October 2003. They further contend that by November 2003 the townhouse was under contract and was ultimately sold in early 2004 but they emptied the townhouse and left New York on December 20, 2003. 53. With respect to statutory residency, petitioners assert, in their brief, that they were not statutory residents of New York in 2003 because they were not in New York for over 183 days, and they did not have a permanent place of abode in New York for more than 11 months. Petitioners maintain that in 2003, they spent 179 days in New York State, many of which were
-23- just partial days, i.e., days on which they flew out of New York airports. They further maintain that the detailed travel log for 2003 (petitioners’ exhibit 9) accounts for all full and partial days that they were in New York and that their American Express statements for 2003 (petitioners’ th exhibit 10) confirm location and travel. Petitioners also claim that after the East 35 Street, New York, New York, apartment was sold on August 14, 2003, the Apricot Court, Melville, New York, townhouse continued to be uninhabitable until September 22, 2003. During that time period, petitioners assert that they traveled abroad and when in New York, they stayed with friends and various family members. As such, they did not maintain a permanent place of abode in New York for more than 11 months. 54. The Division contends that petitioners failed to carry their burden of proving, by clear and convincing evidence, their claimed change of domicile from New York to Florida during the year 2003. It maintains that petitioners continued uninterrupted access, maintenance and personal use of their historic domicile located at Apricot Court, Melville, New York, throughout the year 2003. The Division further maintains that there is no evidence in the record that petitioners’ personal choice to allegedly offer temporary housing to their friends limited petitioners’ ownership and access to their domicile. In addition, the Division points out that petitioners concede that they returned to their Melville, New York, domicile in May 2003. The Division also asserts that the record clearly shows that Mr. Byck maintained active business ties to New York in 2003. It points out that petitioners, in exhibit 9, admitted to being present in New York for 179 days in 2003, and in various other locations on the remaining days of the year. As such, the overwhelming majority of petitioners’ time was spent in New York during the year 2003. The Division maintains that the record is not detailed concerning petitioners’ near and dear items and also does not contain any moving documents. It also maintains that the record
Page 1 and 2: STATE OF NEW YORK DIVISION OF TAX A
Page 3 and 4: -3- 2. David Byck, who was born in
Page 5 and 6: -5- 15. On their 2004 federal Sched
Page 7 and 8: -7- 21. As a result of petitioners
Page 9 and 10: Pursuant to our phone conversation
Page 11 and 12: -11- Mr. & Mrs. Byck resided in bot
Page 13 and 14: ased upon the following. Petitioner
Page 15 and 16: -15- The consent explained that aud
Page 17 and 18: -17- Complete Recovery Restoration
Page 19 and 20: -19- This letter is to inform you t
Page 21: -21- 48. Review of the Verizon tele
Page 25 and 26: Melville, New York, townhouse in Fe
Page 27 and 28: -27- 1997, citing Matter of Atlanti
Page 29 and 30: -29- (5)(I) Husband and wife. Gener
Page 31 and 32: -31- days in 2003 and thus not subj

In the Matter of the Petition - Tax Appeals Tribunal

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