Gaied v. New York: The State’s High Court Weighs In On Statutory Residence Rules

The concept of residency is usually the starting point for all state income tax considerations. And while almost every state imposes, at various rates, a personal income tax, in general the states use a similar sets of conventions and tests to determine whether or not a taxpayer qualifies as a resident.

About 25 years ago, the New York State Department of Taxation and Finance began a residency audit program, perhaps the first of its kind in the nation. And over the past 25 years, the Tax Department has developed a sophisticated audit program with around 250 highly trained auditors focused on income tax and residency issues. Tens of thousands of residency audits have been conducted; numerous administrative decisions and court opinions have been issued; and the Tax Department itself has issued almost six different versions of detailed residency audit guidelines to its audit staff.

Originally published in Journal of Multistate Taxation and Incentives Volume 24, Number 2 – May 2014.

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when the New York State Court of Appeals (the state’s highest court) issued its decision in
Gaied v. New York State Tax Appeals Tribunal. 2 This ruling took specific aim at New York’s
“statutory residency” test, and clarified that in order for a person to be taxed as a statutory
resident in New York, that person must, at a minimum, have a residential interest in New
York living quarters. The court’s ruling set off a firestorm of press accounts celebrating the
victory, and it also raised new questions about the scope of New York’s residency laws. 3 In
this article, we will discuss this watershed decision and how it impacts future residency
cases in New York.
General Background
Before getting to the specifics of the case, let us lay out the context. In New York, as in
other states, there are two ways in which a taxpayer can be treated as a “resident” of the
state. 4 The first test, and the one common among all states, is the “domicile” test. Under
this test, a person who maintains a New York “domicile”—generally defined as the person’s
permanent and primary home—can be taxed as a resident of New York. This domicile test
looks to common law principals going back more than 100 years, and it involves a
subjective inquiry into whether or not a taxpayer’s “heart” is located in New York. Many a
practitioner has been engulfed in difficult domicile audits with New York over the past 25
5years.
But the Gaied case involved New York’s alternative test for residency, called “statutory
residency.” Under the statutory residency test, a person who is domiciled somewhere else
still can be taxed as a New York State (or City) resident if the person: (1) spends more than
183 days in New York; and (2) maintains a permanent place of abode in New York. 6 The
focus in Gaied was on this latter prong of the test, i.e., whether Mr. Gaied maintained a
“permanent place of abode” in New York. 7
Initial Proceedings
Like virtually all state tax cases, this all started with a typical tax audit. Mr. Gaied was
audited by the New York State Tax Department for the years 2001 through 2003 during
which period he was unquestionably domiciled in New Jersey. He had filed his New York

income tax returns for each of these years as a nonresident, responding “No” to the

question of whether he maintained living quarters in New York.
Mr. Gaied had owned an automotive service and repair business in Staten Island (one of the
five New York City boroughs) since 1994, and purchased a multi-unit apartment building
there in 1999. He purchased the building for the dual-purposes of serving as a place for his
parents to live and also as an investment property. Mr. Gaied’s parents, who had lived in a
first-floor apartment there since 1999, were dependent upon him for support, and in
addition to providing their housing, he also paid their utility bills. On his federal, New
Jersey, and New York tax returns, Mr. Gaied claimed his parents as dependents.
Prior to and throughout the audit period, Mr. Gaied lived in Old Bridge, New Jersey, which
was roughly 28 miles from his Staten Island business. As the business was open 24 hours a
day, Mr. Gaied worked very long hours, after which he would return to his New Jersey
home, where he was domiciled since 1994. Once every month or so, at his parents’ request,
Mr. Gaied would stay overnight in their apartment in order to assist them with different
tasks, such as providing transportation to medical appointments. When so doing, Mr. Gaied
would sleep on his parents’ couch as there was no bed or bedroom available for his use. To
that end, Mr. Gaied kept no clothing or personal belongings in his parents’ apartment nor
did he carry a key to the apartment.
Nonetheless, at the conclusion of the audit, the Department decided that Mr. Gaied
maintained a “permanent place of abode” in New York by virtue of the apartment in which
his parents lived. This conclusion was based, in part, on factual issues about the nature and
extent of his use. But it also was based, in part, on the notion—applied regularly by the
Department—that if a taxpayer has access to a place in New York that the taxpayer owns,
this is enough to create a permanent place of abode for the taxpayer. Since Mr. Gaied was
admittedly in New York more than 183 days each year on account of his business, the
Department took the position that he satisfied the two-prong test under N.Y. Tax Law
§605(b)(1)(B) and was therefore a “statutory resident.” Based on this determination that he
was a resident of New York State and New York City, the Department issued a Notice of
Deficiency (the “Notice”) to Mr. Gaied, asserting personal income tax due in excess of
$250,000, plus interest and penalties.

The administrative law judge determination. Mr. Gaied filed a petition
in the Division of Tax Appeals to protest the Notice. After a hearing, in August 2009, in
Matter of Gaied, 8 the administrative law judge (ALJ) issued a determination denying the
petition and sustaining the Notice on grounds that Mr. Gaied “maintained an apartment …
for his parents … and would on occasion stay overnight during the years at issue.”
The Tax Appeals Tribunal proceedings: I and II. Mr. Gaied appealed
the ALJ’s determination by filing an exception with the Tax Appeals Tribunal. In July 2010,
the Tribunal, relying on the long-standing and well-settled interpretation of N.Y. Tax Law
§605(b)(1)(B), granted Mr. Gaied’s exception and reversed the ALJ’s determination (Matter
of Gaied, 9 (“Gaied I”)). In so doing, the Tribunal relied on Matter of Evans, 10 long the
standard-bearer for statutory residence cases, for the proposition that determining whether
an individual “maintains a permanent place of abode” requires an inquiry into both the
“maintenance” and the “permanence” of that abode. As to the permanence prong, the
Tribunal, quoting from Evans, opined that the inquiry “‘must encompass the physical
aspects of the dwelling place as well as the individual’s relationship to the place.’”
Even though Mr. Gaied clearly “maintained” an apartment in New York, the abode did not
meet the “permanence” requirement since, according to the facts found at the ALJ level: (1)
Mr. Gaied did not maintain any living arrangements there for himself; (2) the residence was
maintained exclusively for his parents; (3) he did not maintain a bed or bedroom in the
place; (4) he stayed there only at his parents’ request; (5) he did not keep personal effects
in the apartment; and (6) when he later moved out of New Jersey and into New York, he did
not take up residence in his parents’ apartment. Thus, the Tribunal concluded that Mr.
Gaied did not maintain a permanent place of abode within the meaning of N.Y. Tax Law
§605(b)(1)(B) and was therefore not a resident during the audit period, and issued its
decision accordingly.
Gaied redux. Just as the ink dried on Gaied I, the Tax Department took the rare step of
moving to reargue the case. The Tribunal took the also rare step of granting the
Department’s motion 11 and, in June 2011, went on to reverse its own decision in Gaied I
with a split decision in Gaied II. 12 Indeed, the decision was so controversial that the
Tribunal’s President issued an equally rare dissenting opinion.

In Gaied II, the Tribunal announced a new standard for determining when a dwelling

constitutes a permanent place of abode. In this unprecedented decision, the Tribunal held
that the two-pronged “maintenance” and “permanence” test in Matter of Evans did not
apply when the taxpayer owned the abode in question. Instead, the Tribunal held that so
long as property is suitable for usage—regardless of the person’s actual usage—a property
right in a dwelling is sufficient to render a dwelling a “permanent place of abode” without
regard to whether the person actually dwells there. 13 Thus, applying this new rule, the
Tribunal reversed Gaied I and held that Mr. Gaied was a statutory resident during the audit
period.
The Article 78 proceeding. Under Article 78 of New York’s Civil Practice Law
and Rules, and N.Y. Tax Law §2016, taxpayers are allowed to appeal adverse decisions of
the Tax Appeals Tribunal to New York’s appellate-level court, in this case the Appellate
Division, Third Department, in Albany. There, in Gaied v. New York State Tax Appeals
Tribunal, 14 a 3-2 decision, the Third Department confirmed the Tribunal’s Gaied II split
decision. In doing so, the Third Department’s majority observed that “the issue distills to
whether petitioner maintained a permanent place of abode in New York pursuant to the
statute,” and instructed that “a variety of factors and circumstances may be relevant” to
making this determination. The majority, without explicitly confirming the new legal
standard of Gaied II (i.e., that subjective usage is irrelevant where property rights are
present), proceeded to list examples of factors and circumstances that would be relevant in
determining whether a person maintains a permanent place of abode, including:
“the extent to which the person challenging the assessment paid living expenses,
supplied furniture in the dwelling, had a key, had free and continuous access to the
dwelling, received visitors there, kept clothing and other personal belongings there,
used the premises for convenient access to and from a place of employment, and
maintained telephone and utility services there in his or her name, as well as
whether the premises were suitable for year-round use.” 15
With this as the backdrop, the majority confirmed Gaied II and held that “[e]ven though a
contrary conclusion would have been reasonable based upon the evidence presented, we
are constrained to confirm, since our review is limited and the Tribunal’s determination is

amply supported by the record.” In other words, the majority saw it as a close case but,

under the standard applied by the Tribunal, there was enough there to uphold the Tribunal’s
(second) decision.
The Appellate Division’s dissenting opinion. The dissent, however, saw it much
differently, and focused first on the appropriate legal standard. To do so, it started with the
legislative intent of the law, which the dissent recognized was to “tax those who ‘really and
[for] all intents and purposes [are] residents of the state.’” 16 The dissent asserted that the
inquiry should focus on the person’s own living arrangements in the purported permanent
place of abode, and whether the taxpayer himself had a “residential interest” in the place.
Setting up that as the appropriate legal standard, the dissent found that Mr. Gaied did not
maintain a permanent place of abode in New York during the audit period. While the
dissenting judges could not overcome the majority’s holding, their “double dissent” was
particularly significant in that it afforded Mr. Gaied an appeal as of right to the Court of
Appeals. 17
The Court of Appeals Opinion
In what will likely be the landmark “permanent place of abode” case for years to come, on
2/18/14 New York State’s highest court issued its unanimous decision in Gaied v. New York
State Tax Appeals Tribunal. 18 In this seminal decision, the court rejected the majority’s
decision in Gaied II, as confirmed by the Third Department’s majority, and unambiguously
held that there was “no rational basis for [the Tribunal’s] interpretation” in Gaied II.
Judge Eugene Pigott, writing for the court, began the opinion by stating the new rule: that
in order for a taxpayer to be treated as a statutory resident, the “permanent place of
abode” in question must be used as the person’s residence. He centered his analysis with a
discussion of Matter of Tamagni v. Tax Appeals Tribunal of State of New York, 19 a case
where the court had previously examined the legislative history underlying the statutory
residence statute. In particular, Judge Pigott focused on the court’s observation in Tamagni,
where it noted the concern voiced by the legislature in enacting the new residency test in
1922 that “there had been ‘”several cases of multimillionaires who actually maintain homes
in New York and spend ten months of every year in those homes … but … claim to be

nonresidents.”’” 20 Further, based on this legislative history outlined in Tamagni, he noted
that the purpose of N.Y. Tax Law §605(b)(1)(B) is to discourage tax evasion by individuals
who are truly residents, i.e., people who really live in New York but, nonetheless, attempt to
be taxed as nonresidents.
From there, the court turned to the text of the law and regulations. And while noting that
the term “permanent place of abode” is not defined in the statute, the court pointed out
that the Department’s regulations “define it as ‘a dwelling place of a permanent nature
maintained by the taxpayer, whether or not owned by such taxpayer, [which] will generally
include a dwelling place owned or leased by such taxpayer’s spouse.’” 21 The court then
contrasted that definition with the Tribunal’s interpretation of the term in Gaied II —echoing
the Department’s position in its motion for reargument—that to qualify as a statutory
resident, a person needed only to maintain the dwelling in question, not reside there.
Indeed, that had been the drum the Department was pounding all along in this case, i.e.,
that a person need not reside in an abode but “simply … maintain it.” 22
Observing that the court’s review was limited to whether the Tribunal’s interpretation of
“permanent place of abode” comported with the meaning and intent of the statute, the
court, as noted above, found that there was no rational basis for the Tribunal’s
interpretation of “permanent place of abode” in Gaied II. In doing so, the court focused on
three critical points:
 First, the statute makes it clear that the “permanent place of abode” must actually
“relate to the taxpayer.”
 Second, the legislative history supports the idea that the law was intended “to
prevent tax evasion by New York residents” (emphasis in original).
 Third, the regulations are consistent with this, providing that, in the court’s words,
“the taxpayer must, himself, have a residential interest in the property” in order for it
to constitute a permanent place of abode for the taxpayer.
And with that, the Court of Appeals reversed the judgment of the Appellate Division, with
costs, and directed the Appellate Division to remand the matter to the Tribunal for further

proceedings in accordance with this new, correct standard. The ruling was a unanimous, 7-0

decision.
Inquiring Minds Want to Know: Questions and
Answers
So what does all this mean? Since the issuance of the decision, many of our clients and
fellow practitioners have had a variety of questions about what this decision will mean in
future cases and audits. Many of the press accounts raised questions as well. We,
thankfully, have some answers! Here’s a sampling:
1. What is the significance of this decision? For one thing, it is the
first time that New York’s highest court has endeavored to interpret the state’s residency
rules in this fashion and, in particular, it is the first time that the term “permanent place of
abode” has been interpreted by our highest court. Since there is so much audit activity in
this area, with hundreds of millions of dollars in play every year, it is important that our
highest court has weighed in on the matter.
In terms of the overall merits of the decision, for years the Tax Department has broadly
interpreted its residency rules such that individuals who maintained some connection with
property in New York could possibly be taxed as statutory residents if they also spent more
than 183 days here. Under the Department’s view, it did not always matter whether a
taxpayer actually lived or resided here in any fashion—all that was required was that they
maintained an abode of some sort. But as the Court of Appeals pointed out in its decision,
this test was originally intended to discourage tax evasion by people who “really were
residents” of New York, i.e., people who, in fact, lived here. Thus, in no uncertain terms, the
court held that in order for an individual to qualify as a resident under this test, there must
be some basis to conclude that the taxpayer maintained a dwelling in the state that was
used as the taxpayer’s residence. Put another way, the court said that the abode in question
must relate to the taxpayer, and that the taxpayer himself must have a residential interest
in the property. This result should affect many open cases, as well as help restore the
“statutory residency” test to its original intention: that is, to tax those persons (and only
those persons) who really live in New York.

2. What is the next step in the case? Per the Court of Appeals’ order, the
case will be remanded to the Tribunal for further proceedings. No other specifics are given,
and it is not like this kind of thing happens every day. So the timeline is not yet known.
Nevertheless, the Department’s position—as laid out by the Tax Appeals Tribunal in Gaied
II—was that Mr. Gaied’s maintenance of a dwelling in New York was all that mattered, and
the fact that he did not actually reside or maintain living arrangements for himself at his
parents’ dwelling was irrelevant. The Court of Appeals expressly rejected that interpretation,
effectively nullifying the Tribunal’s second decision.
So where does that leave us? We are right back to where we started, with the Tribunal’s
first decision in this matter, where it held that since Mr. Gaied did not have living quarters
at his parents’ apartment, he did not maintain a permanent place of abode in New York.
That factual finding is still valid, and was never changed or overturned by the Tribunal.
3. Will this affect other statutory residency cases? Or is the
holding really limited to cases where a taxpayer maintains a
dwelling for somebody else? We think the decision has broader effects. As
noted above, the court’s reference to the legislative intent is incredibly significant, as it
ensures that the “statutory residency” test will now be interpreted based on its original
intention; that is, to tax those persons (and only those persons) who “really are residents.”
And that could mean that it is supposed to apply to those people who really do live in New
York. For instance, note how the court specifically mentioned the many cases of
“multimillionaires who actually maintain homes in New York and spend ten months of every
year in those homes … but … claim to be nonresidents.” 23 The “statutory residency” test
was not intended to draw in the typical New York City commuter who may have a place in
the state that is held for investment or used rarely or for vacation purposes. Also, the same
judge who wrote the Gaied opinion penned a decision in late 2013 that also—albeit in
another context—talked about the distinction between domicile and residency, and what it
means to be a “resident”:
“Generally, establishing residence ‘turns on whether [one] has a significant connection with
some locality in the State as the result of living there for some length of time during the
course of a year,’ … whereas ‘[e]stablishment of a domicile in a [place] generally requires a

physical presence in the [place] and an intention to make the [place] a permanent home,’
… i.e., intent to remain there for the foreseeable future.” 24
There again, the idea is that a “resident” should encompass people who really live in New
York for substantial periods of the year.
So now we see how this ruling could have much broader implications in these statutory
residency cases. Does a typical commuter with a rarely used apartment in New York really
live here? Does a taxpayer who works in New York City but maintains a vacation home in
the Hamptons or the Catskills really live here? What about the commuter who is trying to
sell an apartment he used to live in but no longer does? As far as we are concerned, under
the new standard set by the Court of Appeals, all of these cases may be in play.
4. How will the Tax Department respond to the decision? It
remains to be seen just what the Tax Department will do. The position laid down by the
Court of Appeals is completely the opposite of what the Department argued in Gaied and in
other recent statutory residency cases like Matter of Barker. 25 So it is a big win for the
taxpayer, and one might expect the Department to initiate a significant shift in policy. We
think, however, that the Department may argue that this really is not that big of a change,
and that this is kind of what their policy has been all along, despite the harsh position it
took in the Gaied litigation. But this merely scratches the surface. Again, we think that the
court’s reference to the legislative history, and the idea that a taxpayer must really reside in
New York in order to be taxed as a statutory resident, is a big shift in thinking.
Also, for what it’s worth, while we think the Department’s position here (and in other cases
like Barker) was off-base, we do appreciate that it has a difficult task when it comes to
interpreting and applying its own residency rules. Yes, some auditors may be difficult and
over-zealous. But at higher levels, the Tax Department has really tried to get to the right
answer in its interpretations. What’s more, it does an excellent job of publicizing its
positions, with the Nonresident Audit Guidelines being a prime example. 26 They may not
always get it right, but the effort is there, and you cannot say that for all state tax
administrations.

______________________________________________________

5. Does this decision have impact in other states? It definitely
could. Many states have the same “statutory residency” test, 27 and the border states (New
Jersey, Connecticut, Pennsylvania) in particular are often paying attention to what is
happening in New York cases. Also, if New York takes corrective action through a legislative
or regulatory change, others states may follow along, as was the case with the so-called
“Amazon taxes” we see popping up all around the country that are patterned after the New
York law enacted a few years ago. 28
Conclusion
The fact that we have New York’s highest court weighing in on a tax issue like this, and
basing its analysis on statutory construction and legislative intent, is a good thing for
taxpayers everywhere. It is not too often that we get a state’s highest court to wade into
the tax world, and it is especially great when the taxpayer emerges victorious from such a
long battle.
 Indeed, lost in a lot of the hoopla over the case here is that this litigation affected a
good person, a family man who was taking care of his parents, and now also is
supporting a young family. All of us practitioners see how these residency cases really
affect people’s lives. They are difficult cases, where the rules are unclear and audit
determinations are often based on arbitrary factual distinctions. Clients often feel
persecuted, sometimes justifiably, sometimes not. But it has been really rewarding to
see this through to New York’s highest court on Mr. Gaied’s behalf. The fact that the
result comes with a potential game-changing rule from the high court makes it all the
better! []
END NOTES
See, e.g., Comeau, Klein, and Kelly, “New York Residency Audit Guidelines Seek to
Encourage Ties to State,” 3 J. Multistate Tax’n 117 (Jul/Aug 1993); Comeau, Klein, and
Kelly, “New York’s Revised Residency Audit Guidelines Put the Focus on Lifestyle Patterns,”
4 J. Multistate Tax’n 219 (Nov/Dec 1994); Comeau and Sabol, “Latest Version of New York’s
1

Nonresident Allocation Audit Guide Still Leaves Questions,” 9 J. Multistate Tax’n 22 (Mar/Apr

1999).
2
N.Y., No. 26, 2/18/14, 2014 NY Slip Op 1101, 2014 WL 590486 , rev’g 101 App Div 3d
1492, 957 NYS2d 480, 2012 NY Slip Op 9108, 2012 WL 6699044 (3d Dept., 2012). The
authors represented Mr. Gaied before the New York State Court of Appeals.
3
See, e.g., Barbanel, “Lower Taxes Seen for Nonresidents Who Own Property in New York,”
Wall St. J., 2/20/14; Villmer, “NY Residency Ruling Shortens Leash for Auditors,” Law360,
2/20/14 (online at www.law360.com); Koreto, “Landmark Gaied Residency Ruling
Overturned by Courts,” The Trusted Professional, March 2014, page 4 (the newspaper of the
NYSSCPAs); Villmer, “NY High Court Balks at Tax Authority’s Residency Test,” Law360,
2/18/14 (online at www.law360.com); Zelinksy, “The Gaied Decision: A Rare Victory for Tax
Sanity in New York,” Oxford University Press’s OUPblog, 3/3/14 (online at
http://blog.oup.com/2014/03/gaied-decision-taxation-new-york/); McMahon, “Court Chalks
Up One for Taxpayers,” Empire Center’s NY Torch, 2/19/14 (online at www.nytorch.com);
Elkin, “Unreasonable Is Better Than Crazy,” Scarsdale Patch, 2/25/14 (online at
http://scarsdale.patch.com/groups/larry-elkins-blog/p/unreasonable-is-better-than-crazy);
Branfalt, “New York High Court Overturns Tax Tribunal’s Definition of Statutory Resident,”
State Tax Notes (2/19/14), electronic cite: 2014 STT 33-1.
4
New York City imposes a separate income tax, also using the same residency-based rules.

5
For a discussion of the factors that are considered in determining an individual’s domicile,
see, e.g., Comeau, Klein, and Kelly, “New York’s Revised Residency Audit Guidelines Put the
Focus on Lifestyle Patterns,” supra note 1. See also Comeau and Sabol, “Multistate
Residency Issues: Might Regional Uniformity Be Applied Nationwide?,” 7 J. Multistate Tax’n
272 (Jan/Feb 1998).
6
N.Y. Tax Law §605(b)(1)(B); 20 N.Y. Comp. Codes Rules & Regs. §105.20(a)(2).
7
Incidentally, the same week the Gaied decision was issued by the court of appeals (supra
note 2), the New York State Tax Appeals Tribunal issued a decision on the “days” prong of
the statutory residency test, holding that for purposes of that test, any part of a day counts
as a day. See Matter of Zanetti, N.Y. Tax App. Trib., No. 824337, 2/13/14. The taxpayer in
that case had argued that, pursuant to N.Y. Gen. Constr. Law §19, the definition of “day”
should mean only a full calendar day spent in New York.
8
N.Y. Div. of Tax App., ALJ Determination, No. 821727, 8/6/09.
9
N.Y. Tax App. Trib., No. 821727, 7/8/10.

10
N.Y. Tax App. Trib., No. 806515, 6/18/92, confirmed sub nom. Evans v. Tax App. Trib. of
State of N.Y., 199 App Div 2d 840, 606 NYS2d 404, 1993 WL 540078 (3d Dept., 1993).
11
Matter of Gaied, Tax App. Trib., No. 821727, 2/24/11 (order granting motion for
reargument to address the following three issues: whether the physical attributes of the
Staten Island apartment constituted a “permanent place of abode”; whether Mr. Gaied’s
parents had exclusive use of the apartment; and whether Mr. Gaied’s overnight stays
qualified as a temporary stay for the accomplishment of a particular purpose). We are
aware of only two other instances since the Tribunal convened its first quorum more than 25
years ago that it has granted a party’s motion to reconsider one of its decisions. See Matter
of Stuckless, Tax App. Trib., No. 819319, 12/15/05 (motion for reargument granted); and
Matter of Schulkin, Tax App. Trib., No. 814744, 11/20/97 (motion for reargument granted,
decision modified).
12
Matter of Gaied, Tax App. Trib., No. 821727, 6/16/11.
13
The cited authority for this determination included the Tribunal’s earlier decision in Matter
of Barker, Tax App. Trib., No. 822324, 1/13/11, in which it applied the same test to hold
that a Connecticut-resident taxpayer who maintained a rarely used cottage located on Long
Island, hours away from his workplace in New York City, could be taxed as a “statutory
resident” of New York.

14
101 App Div 3d 1492, 957 NYS2d 480, 2012 NY Slip Op 9108, 2012 WL 6699044 (3d
Dept., 2012).
15
In this regard, the Third Department cited Matter of Schibuk v. N.Y.S. Tax App. Trib., 289
App Div 2d 718, 733 NYS2d 801, 2001 NY Slip Op 10051, 2001 WL 1587836 (3d Dept.,
2001), leave to app. dismissed 98 N.Y.2d 720, 748 N.Y.S.2d 900, 778 NE2d 551 (2002);
Matter of Evans v. Tax App. Trib. of State of N.Y., 199 App Div 2d 840, 606 NYS2d 404,
1993 WL 540078 (3d Dept., 1993); Matter of Smith v. State Tax Comm’n, 68 App Div 2d
993, 414 NYS2d 803 (3d Dept., 1979).
16
Quoting Matter of Tamagni v. Tax App. Trib. of State of N.Y., 91 N.Y.2d 530, 673 N.Y.S.2d
44, 695 NE2d 1125 (1998), cert. den. U.S.S.Ct., 10/13/98. This case was discussed in Shop
Talk, “New York Resident Tax Scheme Is Valid Despite Potential Double Tax,” 8 J. Multistate
Tax’n 187 (Sep/Oct 1998).
17
See N.Y. Civ. Prac. Law & Rules §5601(a) (authorizing an appeal as of right from a final
determination “where there is a dissent by at least two justices on a question of law in favor
of the party taking such appeal”).
18
N.Y., No. 26, 2/18/14, 2014 NY Slip Op 1101, 2014 WL 590486 , rev’g 101 App Div 3d
1492, 957 NYS2d 480, 2012 NY Slip Op 9108, 2012 WL 6699044 (3d Dept., 2012).

19
Note 16, supra.

20
Quoting Tamagni, supra note 16, quoting Income Tax Bureau Mem., Bill Jacket, L. 1992,
ch. 425.
21
Quoting 20 N.Y. Comp. Codes Rules & Regs. §105.20(e)(1).
22
This language quoted in Gaied II was taken (out of context, we argued) from Matter of
Roth, Tax App. Trib., No. 802212, 3/2/89.
23
See note 20, supra.
24
Osterweil v. Bartlett, 21 N.Y.3d 580, 977 N.Y.S.2d 153, 999 NE2d 516 (2013), quoting
Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 484 N.Y.S.2d 514, 473
NE2d 742 (1984). Emphasis added.

25
Tax App. Trib., No. 822324, 1/13/11, reh’g den. 6/23/11. Also see note 13, supra.
26
See, e.g., supra note 1.
27
See, e.g., Eisenstadt, “Minnesota: Court Upholds Taxing Statutory Residents’ Out-of-State
Income,” 11 J. Multistate Tax’n 38 (May 2001).
28
The “Amazon tax,” named after the world’s largest Internet retailer, targets online vendors
for state sales tax collection responsibility. See Cristman, “New York: Novel Sales Tax Law
Seeks to Reach Internet and Other Out-of-State Vendors,” 18 J. Multistate Tax’n 35 (August
2008); and Hecht, Burkard, Melone, Sutton, Yesnowitz, and Jones, “New York: State
Clarifies New Affiliate Nexus Standard for Sales Tax Vendors,” 19 J. Multistate Tax’n 32
(February 2010). See also Bingel and Genz, “New York: High Court Upholds ‘Amazon Tax’
Provision for Internet Retailers,” 23 J. Multistate Tax’n 33 (July 2013); and U.S. Supreme
Court Update, 23 J. Multistate Tax’n 40 (February 2014).
END OF DOCUMENT – © 2014 Thomson Reuters/Tax & Accounting. All Rights Reserved.

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