Golden v. Tully ( 1982 )

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of respondent State Tax Commission which sustained a notice of deficiency. Petitioners are nonresidents, formerly employed in this State, who contest a determination by respondent Tax Commission which disallowed a deduction on their 1974 income tax return of the amount expended in moving from New Jersey, their resident State, to New Mexico. Petitioners contend that section 632 of the Tax Law violates section 2 of article IV of the United States Constitution, by allowing moving expenses as a deduction to residents but not to nonresidents. They also contend that respondent’s determination is contrary to law. It is well settled that a taxpayer’s claim for a deduction must rest upon applicable State tax law in effect for the year when the deduction was claimed, and that the burden of proof to overcome a tax assessment rests upon the taxpayer. Further, if there are any facts or reasonable inferences from the facts to sustain it, the court must confirm the Tax Commission’s determination (Matter of Grace v New York State Tax Comm., 37 NY2d 193,195). A taxpayer claiming a deduction must be able to point to an applicable statute and show that he comes within it {id., at p 197). “Although the New York State income tax scheme is patterned after the Federal income tax, there are a number of items * * * which are deductible under the Federal income tax law, but not under the State income tax law” {Matter of Berardino v New York State Tax Comm., 78 AD2d 936). It would, therefore, appear that respondent’s determination was rational and neither arbitrary nor capricious. Since respondent properly applied the statute, its determination should not readily be disturbed {Matter of Grace v New York State Tax Comm., 37 NY2d 193,195-196, supra; Matter of Jablin v State Tax Comm., 65 AD2d 891). The privileges and immunities clause of article IV of the United States Constitution provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” (US Const, art IV, § 2, cl 1.) Cases interpreting this clause have originated in a panoply of factual situations ranging from statutes prohibiting shrimp fishing by nonresidents in coastal waters {McCready v Virginia, 94 US 391) to limiting the performance of abortions in Georgia to residents only {Doe v Bolton, 410 US 179). The modern rule, evolved in Toomer v Witsell (334 US 385), does not bar disparity of treatment where perfectly valid reasons for it exist, but does prohibit discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. The rule of Toomer is known as the “substantial reason” test. The issue raised by petitioners is not a new one. In Shaffer v Carter (252 US 37), the United States Supreme Court upheld an Oklahoma statute taxing a nonresident’s income earned within that State. The Oklahoma Income Tax Law allowed residents to deduct from gross income losses incurred both within and without the State, but limited deduction of losses sustained by nonresidents solely to those incurred in Oklahoma. In upholding the constitutionality of that statute, the court said the nonresident was not treated more onerously than the resident because nonresidents were taxed only on income earned within the State, hence there was no obligation to allow deductions for losses incurred elsewhere. In Travis v Yale & Towne Mfg. Co. (252 US 60, decided simultaneously with Shaffer v Carter on March 1,1920), the Supreme Court held that a portion of the New York Tax Law allowing personal exemptions to residents and their dependents, while denying such exemptions to nonresidents, was discriminatory, and would not be sustained. The court, looking to “the concrete, the particular incidence” of the tax, held “[t]his is not a case of occasional or accidental inequality due to circumstances personal to the taxpayer [citations omitted]; but a general rule, operating to the disadvantage of all non-residents ** * and favoring all residents” {id., at pp 80-81). This infirmity was cured by legislative enactment of an amendment to the statute that same year (see L 1920, ch 191). In Austin v New Hampshire (420 US 656), the Supreme Court held unconstitutional a New Hampshire commuter’s income tax which fell exclusively on the income of nonresidents and which was not offset even approximately by other taxes imposed on residents alone. The constitutional argument advanced by petitioners is persuasive. Initially, we note that absolute equality is not a requisite under the privileges and immunities clause of the United States Constitution {Toomer v Witsell, 334 US 385,396, supra), nor does the clause preclude disparity of treatment in many situations where there are perfectly valid independent reasons for it. As in Matter of Goodwin v State Tax Comm. (286 App Div 694, 701, affd 1 NY2d 680, app dsmd 352 US 805), the constitutional issue in this case arises from the fact that New York State allows certain deductions by its residents but does not allow the same deductions by nonresidents. The question in this case is, therefore, “whether the distinction between residents and nonresidents is a reasonable one, based upon ‘valid independent reasons’ ” {Matter of Goodwin v State Tax Comm., 286 App Div 694, 701, supra). In Goodwin, this court expressly found that the deductions in question represented various State policies and that the factor of residence had a legitimate connection with the allowance of the deductions since the governmental policies underlying the deductions were “peculiarly related to the factor of residence within the State” {Matter of Goodwin v State Tax Comm., supra, p 702). These State policies were found to provide a sufficient “independent reason” to allow New York to offer the deduction to residents but not to nonresidents. We are unable to find that such an independent reason exists here. The purpose behind the moving expense deduction is to permit a taxpayer to reduce his income by the amounts which are necessarily expended as a prerequisite to earning the income, and, generally, when the move is to another State, these expenses should be allocable to earnings generated at the new location {Harris v Commissioner of Revenue, 257 NW2d 568, 570 [Minn]). That a deduction for the expense of moving to another State is unrelated to the fact of employment in New York was as much as admitted by the Tax Commission when it denied petitioners’ deduction on the ground that it was not a deduction “derived from or connected with a business, trade, profession or occupation carried on in New York State”. Moreover, unlike the situation presented in Goodwin, there are no policies “peculiarly related to the factor of residence within the State” present here {Matter of Goodwin v State Tax Comm., supra, p 702). Indeed, the only conceivable policy related to State residents served by allowing interstate moving expenses as a deduction is to aid residents who move out of State. Clearly, this is not connected in any way with life in New York. Consequently, the sole reason petitioners were denied the deduction was that they were nonresidents. The determination, therefore, violates the privileges and immunities clause, and must be annulled. It is unnecessary for us to reach petitioners’ remaining arguments. Determination annulled, without costs, and matter remitted to the New York State Tax Commission for further proceedings not inconsistent herewith. Sweeney, Kane and Weiss, JJ., concur.