In the Matter of the Petition - Tax Appeals Tribunal

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-24- contains scant evidence concerning petitioners’ family. The Division points out that petitioners’ brief contains the vague claim that their intended move to Florida was predicated upon Mrs. Byck’s family. It also points out that petitioners, in their brief, claim that during a brief period of time in 2003, when in New York, they stayed with friends and various family members. 55. The Division also maintains that petitioners failed to meet their burden of proving by clear and convincing evidence that they did not spend in the aggregate more than 183 days in New York during the year 2003. It points out that petitioners, to substantiate their whereabouts on a day-to-day basis during 2003, submitted an incomplete summary compiled noncontemporaneously (petitioners’ exhibit 9) that was vague and addressed only the period from May 2003 through December 2003. The Division further points out that petitioners failed to submit any contemporaneous records detailing their whereabouts for any day during the year 2003. As for petitioners’ claim that their Apricot Court, Melville, New York, domicile was uninhabitable “for several months” and that they could not move back into it until September 22, 2003, the Division contends that petitioners’ explanations in their brief concerning this portion of 2003 are vague and inconsistent. The Division asserts that petitioners’ inconsistent and unsupported explanations concerning their house guests and their home renovations do not change their continual maintenance of a permanent place of abode during the year 2003. Therefore, the Division maintains that petitioners failed to meet their burden of proving by clear and convincing evidence that they did not maintain a permanent place of abode in New York during the year 2003. 56. With respect to the year 2004, the Division maintains that petitioners failed to timely file a New York State personal income tax return and failed to report capital gain from the sale of their New York residence. It points out that petitioners admit that they sold their Apricot Court,
Melville, New York, townhouse in February 2004. The Division further points out that petitioners have failed to submit any evidence in this proceeding to dispute the Division’s presumptively correct determination for the year 2004. Therefore, the Division asserts that -25- petitioners failed to carry their burden of proving by clear and convincing evidence that they did not fail to properly allocate capital gains from the 2004 sale of their residence located at Apricot Court, Melville, New York. The Division also maintains that petitioners failed to prove that reasonable cause exists to abate the negligence penalty imposed for the years 2003 and 2004 and the failure to file on or before the due date penalty imposed for the year 2004. 57. In their reply brief, petitioners assert that at the end of 2001, Mr. Byck started LP Advisors, Inc., a hedge fund consulting firm that was in business to help hedge funds with their trading strategies. They further assert that LP Advisors, Inc., had five clients, two of which were located in Palm Beach County, Florida. Petitioners maintain that sometime in 2002, due to LP Advisor, Inc.’s rapid growth, Mr. Byck brought in four partners, all of whom were located in Palm Beach County, Florida, and at the end of 2002, the company opened its Del Ray Beach, Florida office. They further maintain that due to the company’s fast growth and the fact that Mr. Byck’s partners and two of the company’s biggest clients were located in Palm Beach County, Florida, Mr. Byck needed to relocate to Florida because he needed to control the company’s daily operations. Petitioners claim that they had every intention of making Florida their new home when they left New York in December 2002 for business reasons. Petitioners also claim that they had extensive family who lived full time or part time in Florida including their parents, grandparents, aunts and uncles. They assert that in 2003, all three levels of the Apricot Court, Melville, New York, town house sustained flood damage, which included a huge hole between st nd the 1 and 2 floor. Petitioners further assert that during the renovations, all plumbing had to be
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 and 22: -21- 48. Review of the Verizon tele
Page 23: -23- just partial days, i.e., days
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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