Rothfeld v. Graves , 34 N.Y.S.2d 895 ( 1942 )

Foster, J.

This is a proceeding to review a determination of the State Tax Commission which held the income of an incompetent, admittedly a domiciliary of New York but hving elsewhere, to be taxable. Within limitations not pertinent here an income tax is imposed upon every resident of the State. The statute, however, in defining a resident marks out this exemption: “ The word ‘ resident ’ applies only to natural persons and includes any person domiciled in the State, except a person who, though domiciled in the State, maintains no permanent place of abode within the State, but does maintain a permanent place of abode without the State, and who spends in the aggregate not to exceed thirty days of the taxable year within the State.” (Tax Law, § 350, subd. 7, as amd. by Laws of 1934, chap. 462, and Laws of 1935, chap. 286.) The question presented is whether the incompetent maintains a permanent place of abode without the State within the meaning of the statute.

The incompetent resided with his mother in the city of New York until her death in 1917. A committee was appointed for him in 1920 by the Supreme Court of this State. He was cared for by a female nurse and when she married, some time between 1918 and 1920, he was taken by her to her new home at North Adams, Mass. A year later she died, and her husband, Lucius C. Yeaw, took over the duty of caring for the incompetent, and the latter has lived with Mr. Yeaw at North Adams ever since. They five in a one-family private dwelling, owned by Mr. Yeaw, and the expenses of the house, including taxes and an automobile registered in Mr. Yeaw’s name, are paid by the committee of the incompetent. Mr. Yeaw, who has no other business or occupation, receives about $6,000 a year for caring for and maintaining the incompetent. No living quarters are maintained for the incompetent in this State, and he does not spend more than thirty days here in any one year. Reports are regularly made to the Supreme Court of New York county as to his welfare and the manner in which he is maintained. No income taxes are paid in the State of Massachusetts for or on his behalf.

Do these facts make the statute applicable to the situation of the incompetent? Since it creates an exemption from taxation to a particular class of persons the statute must be strictly construed and all doubts and ambiguities resolved in favor of the State. (People ex rel. Central Union Trust Co. v. Wendell, 197 App. Div. 131; People ex rel. Froelick v. Graves, 259 id. 30.) Applying this test, I think the statute contemplates only those who by their own volition choose and maintain a permanent place of abode without the State. The incompetent does not come within this classification. He remains under the control of the courts of this State where he was adjudged an incompetent and where it is conceded that he is still domiciled. His abode in Massachusetts is not a result of his own volition at all; indeed, as an incompetent and from a legal standpoint, he is incapable of making a choice. The fact that he lives there is due solely to considerations personal to his paid attendant, and this is insufficient to satisfy the statute, the intent of which is to include, only an abode outside the State deliberately and permanently maintained by the one who is to be relieved of tax liability.

The determination of the Tax Commission should be confirmed, without costs.

Heffernan and Schenck, JJ., concur; Crapser, J., dissents, in an opinion in which Hill, P. J., concurs.