Escape from New York[i]

According to data released by the IRS earlier this year, the pandemic triggered a “wealth migration” that saw high-tax states like New York lose high-income earners to low-tax jurisdictions such as Florida.[ii]

This weekend, the Wall Street Journal reported that New York’s tax base shrank by $19.5 billion as a result of workers fleeing during a time when lockdown measures allowed employees to work remotely. Other high-tax jurisdictions experienced a similar exodus of workers.

Unfortunately for New York, the migration out of the State began before the pandemic, which does not bode well because, as the Office of the Comptroller recently stated, “the personal income tax is the single largest revenue source for New York, accounting for two of every three tax dollars.”

Of the individuals from whom this income tax was collected pre-pandemic, approximately 3 percent were part-year residents, who typically have a higher income than full-time residents.

Further, nonresidents comprised 10 percent of pre-pandemic filers but were responsible for 15 percent of the personal income tax collected.

Although New York has collected far more tax revenue coming out of the pandemic than was expected,[iii] has added to its statutorily created reserve funds (the so-called “Tax Stabilization” and “Rainy Day Reserve” funds) and has just established a general-purpose Fund for Economic Uncertainties, the fact remains that we’re experiencing the highest rate of inflation in over forty years, which will cut into the buying power of these reserves.

In response to this inflation, the Fed has increased short-term interest rates with the goal of putting the brakes on the economy (by reducing demand and slowing wage and price growth), thereby bringing inflation under control or at least dampening inflationary pressures. However, if the Fed’s action, coupled with other issues such as like supply chain shortages, causes a recession,[iv] then it will be important to maintain the stability of New York’s tax revenues – especially from the personal income tax on which the State is so dependent – if the State is to weather an economic downturn.

Which brings us back to the migration out of New York, which will likely increase as individuals who have grown accustomed to working remotely try to cope with inflation in what is already the most expensive jurisdiction in the country in terms of both tax burden and cost of living.

Many of these individuals will be confronted with New York’s notoriously aggressive efforts to continue taxing them as residents by seeking to “preserve” their status as domiciliaries or as statutory residents of the State.[v]

Fortunately for some of these individuals, the State recently suffered a loss – temporary or not remains to be seen – in the Third Department of the Appellate Division that may impair these efforts.[vi] In order to appreciate the Court’s decision, it would be helpful to review its history.

“I Love NY” – Unrequited Love?

The general fact pattern was not at all unusual and, unfortunately, the outcome was not at all unexpected – indeed, it was consistent with many other decisions under similar circumstances – which is why it is instructive for individuals who are not domiciled in New York, but who own and operate a New York-based business, and who are considering the purchase of a “second home” in the State.

It was undisputed that Taxpayer was domiciled in New Jersey during the years at issue – the “Garden State” was his “permanent” home.

It was also undisputed that Taxpayer, who worked primarily out of his New York City office,[vii] was present in New York for over 183 days during each of the years in issue.

The question of Taxpayer’s statutory residence, therefore, turned on whether Taxpayer maintained a permanent place of abode in New York.[viii]

In fact, just prior to the years at issue, Taxpayer had purchased a house in Northville, New York, which is located more than 200 miles from New York City, on a northern extension of Great Sacandaga Lake, in the Adirondack Park.[ix] The house had five bedrooms and three bathrooms, with year-round climate control.

It was undisputed that Taxpayer and his family used this house for vacation purposes[x] only: Taxpayer enjoyed cross-country skiing in the winter months and attending the Saratoga Racetrack in the summer. Taxpayer spent no more than two to three weeks at a time in Northville. Taxpayer did not lease the home to others, with one limited exception: there was an attached apartment, with a separate entrance and key, that was occupied year-round by a tenant who had an existing rental agreement with the prior owners of the home.[xi]

The Issue is Joined

Taxpayer filed New York State nonresident income tax returns, on Form IT-203, for each of the years at issue.[xii] In response to a question on the return, Taxpayer indicated that he did not maintain living quarters within New York State for either 2012 or 2013.[xiii]

The Department of Taxation audited Taxpayer’s 2012 and 2013 returns. In 2016, it issued a notice of deficiency in which it asserted that Taxpayer owed additional New York State income tax in excess of $525,000 (plus interest and penalty) for the two years.[xiv]

According to the notice, the additional liability was based upon the Department’s finding that, because Taxpayer maintained a permanent place of abode in New York and was present within the State in excess of 183 days during each of the two years, Taxpayer was liable for income tax as a statutory resident for those years.

Taxpayer filed a timely petition with the Division of Tax Appeals in which Taxpayer protested the Department’s finding of statutory residence.

Unfortunately, Taxpayer didn’t stand a chance of succeeding under the then current state of the law relating to New York statutory residence. After a hearing, an Administrative Law Judge denied the petition and sustained the notice of deficiency.

The ALJ’s determination was appealed to, and was then upheld by, the Tax Appeals Tribunal.[xv]

Statutory Residence

Under New York’s Tax Law, a resident individual is one: “(A) who is domiciled in this state, . . . or (B) who is not domiciled in this state but maintains a permanent place of abode in this state and spends in the aggregate more than one hundred eighty-three days of the taxable year in this state, . . .”[xvi]

Because Taxpayer was domiciled in New Jersey during the audit years, the issue for the Tribunal was whether Taxpayer was liable for New York personal income tax on the basis of statutory residence.

As there was no dispute that Taxpayer was physically present within New York for more than 183 days during each of 2012 and 2013 – he commuted to work in New York City, where his business was located – the sole issue was whether Taxpayer maintained a permanent place of abode in New York.

Permanent Place of Abode

The phrase “permanent place of abode” is interpreted in the Department’s regulations as follows:

“a dwelling place of a permanent nature maintained by the taxpayer, whether or not owned by such taxpayer, . . . However, a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode. Furthermore, . . . any construction which does not contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc., will generally not be deemed a permanent place of abode.”[xvii]

Taxpayer framed his argument as whether his limited use of the Northville house, which he claimed was otherwise rented out during the year, constituted a permanent place of abode. Taxpayer relied on the New York Court of Appeals decision in Gaied[xviii] to emphasize that, because his property was maintained for another’s use, such residence did not qualify as Taxpayer’s permanent place of abode.

Residential Interest

In Gaied, the petitioner owned a multi-family apartment building in Staten Island that contained three rental units. Two of these units were rented out and the third unit was maintained by the petitioner for use by his parents. The petitioner was domiciled in New Jersey; however, he owned an automotive service and repair business on Staten Island[xix] and commuted daily from New Jersey. The Tax Appeals Tribunal concluded that the petitioner was liable as a statutory resident because of his presence within New York City for over 183 days and his maintenance of a permanent place of abode in Staten Island. The Tribunal stated that the petitioner had access to the permanent place of abode[xx] notwithstanding that he maintained it for his parents. According to the Tribunal, access to the abode sufficed – there was no requirement that petitioner actually reside there. The Tribunal was affirmed by the Appellate Division.[xxi]

The Court of Appeals, however, reversed the Appellate Division. The Court held that:

“The Tax Tribunal has interpreted ‘maintains a permanent place of abode’ to mean that a taxpayer need not ‘reside’ in the dwelling, but only maintain it, to qualify as ‘statutory resident’ under Tax Law § 605 [b] [1] [B]. Our review is limited to whether that interpretation comports with the meaning and intent of the statutes involved . . . Notably, nowhere in the statute does it provide anything other than the ‘permanent place of abode’ must relate to the taxpayer. The legislative history of the statute, to prevent tax evasion by New York residents, as well as the regulations, support the view that in order for a taxpayer to have maintained a permanent place of abode in New York, that taxpayer must, himself, have a residential interest in the property.”

In Taxpayer’s case, the Tribunal rejected his argument that he maintained the residence for a tenant’s use, explaining that the tenant had their own separate living quarters and, as such, their occupancy did not affect Taxpayer’s use of the house. The decision in Gaied, the Tribunal stated, did not apply to the facts of this case.

Taxpayer also urged the Tribunal to find that the language in the above-quoted regulation regarding “a mere camp or cottage, which is suitable and used only for vacations,” described his Northville house. Taxpayer asserted that because his use was limited to only vacations, it could not be determined that Taxpayer, in fact, maintained the home for substantially all of the year.

The Tribunal responded by pointing out that Taxpayer was at no point prevented from using the property for substantially all of the year for both 2012 and 2013. The Northville house, it stated, could be (and was) used year-round and, as such, was considered permanent. The fact that Taxpayer chose to use the property exclusively for vacations did not transform its characterization as a permanent place of abode.[xxii]

Therefore, the Tribunal concluded that the Northville house was a permanent place of abode maintained by Taxpayer for his use. Because Taxpayer maintained a permanent place of abode in New York and was present within the State for more than 183 days during each of the years in question, the Tribunal found that Taxpayer was properly taxable as a statutory resident of for those years.[xxiii]

The fact that the house was located more than 200 miles from where Taxpayer logged most of those 183-plus New York days was of no consequence to either the Department or the Tribunal.

The question, however, is whether it should it have been. Enter the Third Department.

The Third Department

Taxpayer commenced a CPLR Article 78 proceeding[xxiv] to review the Tribunal’s determination.

The Court began by describing the standard of review: “[S]o long as an agency’s determination has a rational basis and is supported by substantial evidence in the record, it will not be disturbed on review.”

As relevant here, the Court continued, “[a] nondomiciliary may be considered a New York resident for income tax purposes if he or she maintains a permanent place of abode in this state and spends in excess of 183 days of the year here.”

Because Taxpayer conceded that they spent more than 183 days in New York during the years at issue – in an endnote, the Court pointed out that the number of days during which Taxpayer worked in the State was “in stark contrast to the three weeks, at most, spent at the Northville home” – “their argument distills to whether the Tribunal rationally determined that the Northville home constituted a permanent place of abode.”

The Tribunal reached this determination, the Court explained, because “[Taxpayer] had the right to reside in and maintained living arrangements at [the] Northville home and exercised that right, albeit sparingly, during the years at issue.”

Thus, the issue before the Court was whether the Tribunal’s interpretation of the term “permanent place of abode” as set forth in the Tax Law[xxv] “comports with the meaning and intent of the statutes involved.”[xxvi]

The Court’s Analysis

According to the Court, “Interpretation given a statute by the agency charged with its enforcement is, as a general matter, given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute.” It added, however, that the legal interpretation of a statute is ultimately the court’s responsibility.[xxvii]

“The Court of Appeals has explained,” the Court continued, that “the legislative intent underlying” the statutory residence rule is to discourage tax evasion by residents.[xxviii] “Essentially, this statute “fulfils the significant function of taxing individuals who are really and for all intents and purposes residents of the state but have maintained a voting residence elsewhere and insist on paying taxes to [New York] as nonresidents”[xxix]

Although the Tax Law does not define “permanent place of abode,” the Department’s regulations define it as “a dwelling place of a permanent nature maintained by the taxpayer … However, a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode.”[xxx]

Significantly, the Court observed, there must be a showing that the taxpayer has a residential interest in the property, which is a fact-intensive inquiry.[xxxi] The taxpayer must have utilized the dwelling as their residence; maintaining a dwelling that could be a permanent place of abode, the Court added, was not enough to establish status as a statutory resident.

“In order to qualify as a permanent place of abode, there must be some basis to conclude that the dwelling is utilized as the taxpayer’s residence” [emphasis added]. To properly determine the taxpayer’s residential interest, the Court stated, “it is imperative to consider a variety of factors, including the nature and duration of the use, which inherently involves a subjective analysis of the taxpayers’ use.”

There was no dispute that the Northville home was a vacation home that was suitable for use year-round.[xxxii] However, that fact alone, the Court explained, did not mean that the Northville home necessarily constituted a permanent place of abode. Thus, the Court concluded it was unreasonable for the Tribunal to focus solely on the Northville home’s “physical” characteristics.

Certainly, there were objective facts that tended to support the determination of the Tribunal, including that Taxpayer had “free and continuous access” to the Northville home. That said, the Court then asserted that Taxpayer fell outside of the purview of the target class of taxpayers who were intended to qualify as statutory residents.[xxxiii]

Taxpayer utilized the Northville home for three weeks during each tax year[xxxiv] for either skiing or to visit the racetrack in Saratoga Springs. The Northville home was not used for access to Taxpayer’s job in New York City and was not suitable for such purposes, given that it was over a four-hour drive each way. In fact, a year-round tenant occupied an attached apartment, whom Taxpayer informed of his presence prior to his arrival. Moreover, Taxpayer did not keep personal effects in the Northville home, instead bringing along what was needed for their visits.

Based on these facts, Taxpayer did not utilize the dwelling in a manner which demonstrated that they had a residential interest in the property. Thus, even though the Northville home could have been used in a manner such that it could constitute a permanent place of abode within the meaning of the Tax Law,[xxxv] because Taxpayer did not use it in this manner, it did not constitute a permanent place of abode. Thus, it was inappropriate for the Tribunal to deem Taxpayer a statutory resident.

Think About It

Was the Appellate Division’s decision correct under the holding of Gaied?

Not really.

The Taxpayer certainly had a residential interest in the Northville property. Taxpayer acquired the property as a second home to be used when Taxpayer vacationed in that part of New York. Query whether Taxpayer owned other “second homes” elsewhere. If so, then rest assured that Taxpayer also had a residential interest in each of these.

Taxpayer owned the property and had access to it at any time they desired. Taxpayer did not need the tenant’s permission to visit the property they had purchased and maintained; indeed, the latter occupied a separate apartment attached to the house with its own separate entrance. Even assuming that Taxpayer did not leave clothes at the home,[xxxvi] this does not change the fact that they had a residential interest in the property.

What about the number of days Taxpayer used the property? Relatively few compared to the number of days Taxpayer worked in New York. This fact carried significant weight in the eyes of the Court, though the Court buried its thinking in an endnote in which it observed that the number of days during which Taxpayer worked in the State was “in stark contrast to the three weeks, at most, spent at the Northville home.”

So what? Plenty of folks who work in Manhattan have a pied-a-terre that they use infrequently in comparison to their days worked in New York City.[xxxvii]

So, what’s the real story here?

The fact that Taxpayer’s Northville home was nowhere near Taxpayer’s place of business in New York City and was used relatively few days compared to the days Taxpayer worked in the City.

However, because those factors have never been used as the basis for concluding that the property in question was not a permanent abode, the Court resorted to the “residential interest” requirement articulated by the Court of Appeals in Gaied.

But is the distance relevant? If so, where does one draw the line? What if the second home was only 100 miles away from the City, say on the East End of Long Island or in Rhinebeck?

What about time? Should there be a threshold ratio of days at the second home over total days in New York?

Can one expect to find a close correlation between these two factors, meaning that the closer the second home is to one’s workplace, the greater the likelihood they will use it more frequently?

An Alternative?

The beginnings of an answer may be found in the dissent to the Appellate Division’s decision in Gaied, where the court held for the State (as described earlier). The dissent there explained that the intent of the statutory residence law, as stated in its legislative history, is to tax those individuals who, as a matter of fact, are New York residents.[xxxviii]

Before Gaied, the Court in Tamagni[xxxix] considered the constitutionality of two states taxing someone as a resident. The Court there referenced the legislative history of the permanent residence test – signed into law in 1922 – stating that the test was enacted to discourage tax evasion by New York residents.

The Court explained that, at the time the statute was enacted, the Department of Taxation noted in its memorandum in support of the legislation that, “[w]e have several cases of multimillionaires who actually maintain homes in New York and spend ten months of every year in those homes . . . but they . . . claim to be nonresidents.”[xl] According to the memorandum, the statutory residence test serves the important function of taxing those “who, while really and [for] all intents and purposes [are] residents of the state, have maintained a voting residence elsewhere and insist on paying taxes to us as nonresidents.”

Similarly, the Tax Department’s memorandum in support of the 1954 amendment to the statute, which established the “more than one hundred eighty-three days” requirement, specifically states that the amendment was necessary to deal with “many cases of avoidance and . . . evasion” of income tax by New York residents.[xli]

Turning again to Gaied in the Appellate Division, the dissent continued, “[a] permanent place of abode means a dwelling place of a permanent nature maintained by the taxpayer.” Using language that would later be adopted by the Court of Appeals in Gaied, and heavily emphasizing the distinction between “permanently maintaining” and “continuing living arrangements at” a particular dwelling place, the dissent asserted that the inquiry should focus on the person’s own living arrangements in the purported place of abode, and on whether the taxpayer had a personal residential interest in the place.

In reaching its decision, the Court of Appeals in Gaied concluded that there was no rational basis to interpret “maintains a permanent place of abode” to mean that a taxpayer need not “reside” in a given dwelling, but only maintain it, to qualify as a statutory resident. The Court rejected the Department’s and the Appellate Division majority’s analyses, and made a distinction between having a property interest, as opposed to a residential interest, in a dwelling.

The Court of Appeals explained that the legislative history supported the idea that the law was intended to prevent tax evasion by de facto New York residents. Thus, the permanent place of abode had to actually relate to the taxpayer, and the taxpayer themselves must have a residential interest (as opposed to just a property interest) in the property.

Nowhere, however, did the Court discuss any requirement that there be a nexus between the permanent place of abode in which the taxpayer has a personal residential interest and the location(s) within New York at which the taxpayer spends the requisite number of days that cause them to be treated as a resident. In fact, some courts – including the Tribunal in the Taxpayer’s case, above – have rejected such arguments based upon the Department’s interpretation of the law, which fails to require such a nexus.

For example, in Barker,[xlii] a Connecticut domiciliary who worked in Manhattan every day as an investment manager, and who owned a vacation home in East Hampton (which they used for less than three weeks in any of the years at issue), was found to be liable for New York income tax on all of their income because they spent over 183 days in New York during the year – working in New York City – and owned a permanent place of abode in New York – approximately 110 miles away from Manhattan.

The Tribunal rejected the taxpayer’s argument that the house was not suitable for use by the taxpayer’s family as a permanent home – which it characterized as “subjective” – stating that it was “well settled that a dwelling is a permanent place of abode where, as here, the residence is objectively suitable for year-round living and the taxpayer maintains dominion and control over the dwelling. There is no requirement,” the Tribunal added, “that the [taxpayer] actually dwell in the abode, but simply that he maintain it.”

The Court of Appeals in Gaied rejected this last statement, that maintenance of a dwelling alone sufficed for purposes of the statutory residence test. Relying on the legislative history, the Court held that a taxpayer cannot have a permanent place of abode in New York unless “[he], himself, ha[s] a residential interest in the property.” The purpose of the test, the Court explained by reference to the legislative history, was to prevent avoidance by people who really live in New York but attempt to be taxed as nonresidents.

A Call to Action?

What does this mean for cases like the Taxpayer’s? Presumably, it requires that a more subjective inquiry occur before a non-New York domiciliary who spends more than 183 days a year in the State – as a result of operating a business in the State – can be taxed as a resident simply by virtue of having a dwelling somewhere in New York; what’s more, this inquiry must focus on whether the dwelling is actually “utilized as the taxpayer’s residence.”

Does this inquiry necessarily include a consideration of nexus? It should. There is a huge difference between finding a residential interest in a New York-situs property that is located near the New York place of business of someone who is not domiciled in New York,[xliii] as opposed to “looking for” such an interest in a vacation property situated in New York, but many miles from the New York place of business, such that a reasonable person would not entertain a daily commute between the two points.

The question, of course, is where does one draw the line? There are people who commute to the City every day from the East End, or from parts of Dutchess and Orange Counties. How far away is too far for this purpose?

At some point, the State Legislature must act to provide certainty for taxpayers and an easily administered set of standards for the Department. Until then, when applying the statutory residence rule, the Department and the courts should take into account its intended purpose: to tax people who actually live in New York notwithstanding they are domiciled elsewhere.

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The opinions expressed herein are solely those of the author(s) and do not necessarily represent the views of the Firm.

[i] Remember Adrienne Barbeau?

[ii] New York’s income tax rates for higher earners, beginning at approximately $215,000 of taxable income are as follows: 6.33%, 6.85%, 9.65%, 10.3% and 10.9%. New York City’s top rate is 3.876%. New York’s corporate tax rate is 7.65% while New York City’s 8.85%. New York has an estate tax of 16%. The State sales tax rate is 4%; combined with the local rate in the N.Y. Metro Area, the total sales tax is more than 8.5%.

Florida has no personal income tax or estate tax. Its corporate tax rate is 5.5%. The State sales tax is 6%; with a local sales tax of approximately 1.05%, the tax becomes 7.05%.

[iii] Of course, the State is also subsidizing a new stadium for the NFL’s Buffalo Bills and has increased spending for various social programs.

[iv] As many economists are predicting; some believe we are already in one.

[v] Stated differently: “…tractor-beam-like efforts to keep them in close orbit around the State.” Too cheesy?

[vi] In the Matter of Obus v. New York State Tax Appeals Tribunal, entered June 30, 2022. — N.Y.S.3d —-, 2022 WL 2346956, 2022 N.Y. Slip Op. 04206.

Decisions rendered by the Tribunal are final and binding on the Department of Taxation and Finance; there is no appeal to the courts. Taxpayers who are not satisfied with the decision of the Tribunal have the right to appeal the Tribunal’s decision by instituting a proceeding pursuant to Article 78 of the Civil Practice Law and Rules to the Appellate Division Third Department of the State Supreme Court.

[vii] The opinion’s reasoning applies equally in determining the NYC resident status of a NY State domiciliary – for example, an individual whose permanent home is in Westchester or Nassau County – who owns and operates a business in NYC, and who is considering the purchase of an apartment in the City. This is important to note because NYC did not claim he was a resident of the City, though he worked there most of the time.

[viii] “It’s no wonder,” I thought to myself after reviewing the Tribunal’s opinion, “that NY is among the lowest-ranked states in terms of ‘tax climate’ – not only will we tax non-resident owners on the profits they realize from operating their business within the State, we’ll also tax them on their non-NY-source income if they decide to spend some of those profits by vacationing in the State.”

[ix] A car drive of almost 4 hours; a bus or train ride of almost 5 hours; almost 5 hours by plane and car (flying from Newark to Albany then to Saratoga Springs, then by car to Northville).

[x] It was obvious that he hasn’t going to commute to his office in NYC from Northville.

[xi] Taxpayer paid all of the expenses associated with the property, which far exceeded the $200 monthly rental.

[xii] Taxpayer’s share of the profits from his NYC-based business probably included NY-source income.

[xiii] This drives me crazy. Whether it is done inadvertently or intentionally, I cannot say; its effect is the same: the NY auditor is left with the impression that the taxpayer is looking to avoid having their return selected for a residency exam. Why start behind the eight ball?

[xiv] This translates, roughly, into additional taxable income of approximately $6 million in each of the years at issue. This income would, for example, represent wages earned outside of NY, rental income sourced outside NY, and investment income.

[xv] Nelson Obus and Eve Coulson, DTA NO. 827736 (August 22, 2019).

[xvi] Tax Law Sec. 605(b)(1)(A) and (B).

[xvii] 20 NYCRR 105.20(e)(1).

In addition, the individual must maintain such an abode for “substantially all of the taxable year”; see the discussion at,

[xviii] Matter of Gaied v New York State Tax Appeals Trib., 22 NY3d 592 [2014].

[xix] AKA Richmond County, and somehow one of NYC’s five boroughs.

[xx] It was located in the same neighborhood as his business.

[xxi] Matter of Gaied v New York State Tax Appeals Trib., 101 AD3d 1492 [3d Dept. 2012].

[xxii] The regulation at 20 NYCRR 105.20[e][1], in interpreting the phrase permanent place of abode, provides guidance concerning certain living quarters maintained by a taxpayer that are not permanent in nature, where the property is not suitable for year-round use or does not contain cooking facilities or bathing facilities.

[xxiii] Finally, Taxpayer argued that the imposition of a resident income tax in his circumstances was unconstitutional because it would lead to multiple taxation of his income. Specifically, Taxpayer asserted that New Jersey would not allow a credit for taxes paid to other states on income – such as investment portfolio income (which represents a significant portion of the income of most money managers) – that had no identifiable situs.

According to the Tribunal – and unfortunately for Taxpayer – the Court of Appeals had already rejected this argument. Matter of Tamagni v Tax Appeals Trib., 91 NY2d 530 [1998], cert. denied, 525 U.S. 931 (1998), wherein the statutory residence statute was upheld as constitutional.

[xxiv] An Article 78 proceeding is used to appeal the decision of a New York State agency to the New York courts.

[xxv] Tax Law Sec. 605(b)(1)(B).

[xxvi] Citing Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d 592, 598 [2014].

[xxvii] “Where the question is one of pure statutory reading and analysis,” the Court stated, “dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretation is therefore to be accorded much less weight.”

[xxviii] Citing Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d at 597; Matter of Tamagni v. Tax Appeals Trib. of State of N.Y., 91 N.Y.2d 530, 535, [1998], cert denied 525 U.S. 931 [1998].

[xxix] Again, relying upon Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d at 597.

[xxx] 20 NYCRR 105.20[e][1]; Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d at 597–598.

[xxxi] Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d at 598. Sounds like a broken record, doesn’t it?

[xxxii] 20 NYCRR 105.20[e][1].

[xxxiii] Guess? Citing Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d at 597.

[xxxiv] The Tribunal described the use as two-to-three weeks at a time.

[xxxv] Tax Law Sec. 605.

[xxxvi] Would a change of skivvies have sufficed? What about a toothbrush and a tube of toothpaste? How would you establish their presence?

[xxxvii] Wasteful? Absolutely. But can they afford it? You bet.

[xxxviii] Gaied v. New York State Tax Appeals Tribunal, 957 N.Y.S. 2d 480.

[xxxix] Then known as the Income Tax Bureau.

[xl] Bill Jacket, L. 1922, ch. 425.

[xli] Memorandum of Dept. of Taxation and Finance, 1954 N.Y. Legis. Ann., at 296.

[xlii] Matter of Barker, DTA No. 822324 (N.Y. Tax App. Trib. 2011).

[xliii] The classic Manhattan pied-a-terre owned by a non-NY domiciliary who works in the City.