Reeves v. State Tax Commission

Staley, Jr., J.,

dissents and votes to confirm in the following memorandum. Staley, Jr., J. (dissenting). I would confirm the determination of respondent on- authority of Matter of Colton v New York State Tax Comm. (71 AD2d 781). There, petitioners moved to Louisiana. They put their New York house up for sale, boarding it up and putting it under police security. After a year and a half, petitioners were forced to return to New York State due to Mrs. Colton’s illness. Petitioners proved that they obtained Louisiana driver’s licenses and registrations, as well as voted and joined various clubs and organizations in Louisiana. On these facts, which are much more indicative of a change in domicile than exist in the present proceeding, this court determined that "There was evidence to sustain a finding either for or against the petitioners, but since there was a rational basis for the determination, it should be confirmed.” In addition to the facts stated in the majority opinion here, Mr. Reeves entered into a consulting agreement with his former employer and a covenant not to compete for 10 years with quarterly payments of $20,000 beginning September 15, 1966 until September 15, 1976. Considering that the clear and convincing evidence necessary to show the intent to change a domicile to a foreign country is even stronger than that necessary to change a State domicile (Matter of Klein v State Tax Comm., 55 AD2d 982, 983, affd 43 NY2d 812), it is submitted that respondent’s determination that petitioners here did not show the necessary intent to establish a domicile in Jamaica is supported by substantial evidence, and should be confirmed (Matter of Babbin v State Tax Comm., 67 AD2d 762).