Bodfish v. Gallman

• Decision Date: 22 January 1976
• Citation: Bodfish v. Gallman, 50 A.D.2d 457, 378 N.Y.S.2d 138 (N.Y. App. Div. 1976)
• Parties: In the Matter of Louis R. BODFISH et al., Petitioners, v. Norman F. GALLMAN et al., Constituting the New York State Tax Commission, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 138

378 N.Y.S.2d 138

50 A.D.2d 457

In the Matter of Louis R. BODFISH et al., Petitioners, v. Norman F. GALLMAN et al., Constituting the New York State Tax Commission, Respondents.

Supreme Court, Appellate Division, Third Department.

Jan. 22, 1976.

Sayles, Evans, Brayton, Palmer & Tifft, Elmira (Edward B. Hoffman, Elmira, of counsel), for petitioners.

Louis J. Lefkowitz, Atty. Gen. (John F. Forner, Jr., and Ruth Kessler Toch, Albany, of counsel), for respondents.

Before HERLIHY, P.J., and GREENBLOTT, KANE, KOREMAN and MAIN, JJ.

GREENBLOTT, Justice.

Petitioners filed New York Resident Income Tax returns for the year 1970 but did not include income received by Louis R. Bodfish while employed in Pakistan from February, 1970 to December 31, 1970. On September 22, 1972, the Income Tax Bureau issued a Statement of Audit Changes against petitioners imposing personal income tax on the income earned in Pakistan, on the ground that petitioners had not changed their domicile and were residents of New York State for the entire year of 1970. A Notice of Determination of Deficiency in personal income taxes for the year 1970 was issued on June 25, 1973 against petitioners and petitioners sought a redetermination of the deficiencies.

Petitioner Bodfish resided in New York with his family as an employee of Corning Glass continuously since 1955. In February, 1970, he became Plant Manager of Corning Glass's Pakistan subsidiary and entered Pakistan on February 9, 1970 under a four-year multiple entry visa. During 1970, he returned to this country on March 29, 1970 for a six-day stay, and again on June 23, 1970 for a seven-day stay, and again on November 21, 1970 for a five-day stay. During 1970, while in Pakistan, he lived at two separate leased residences. Bodfish's wife and family remained in New York until July 29, 1970 when they sold their home and joined him. Petitioners remained in Pakistan until January, 1973 when Mr. Bodfish was again transferred by Corning Glass, this time to London, England.

A resident individual is defined as one '* * * who is domiciled in this state, unless he maintains no permanent place of abode in this state, maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this state' (Tax Law, § 605, subd. (a), par. (1)). Petitioner Bodfish contends that he changed his domicile when he moved to Pakistan.

The determination of the State Tax Commission should be confirmed. To change one's domicile requires an intent to give up the old and take up the new, coupled with an actual acquisition of a residence in the new locality (Matter of Newcomb, 192 N.Y. 238, 250--251, 84 N.E. 950, 954--955). The test of intent with respect to a purported new domicile has been stated as 'whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it' (Matter of Bourne, 181 Misc. 238, 246, 41 N.Y.S.2d 336, 343, affd. 267 App.Div. 876, 47 N.Y.S.2d 134, affd. 293 N.Y. 785, 58 N.E.2d 729). The evidence to establish the required intention to effect a change in domicile must be clear and convincing (Ruderman v. Ruderman, 193 Misc. 85, 87, 82 N.Y.S.2d 479, 481, affd. 275 App.Div. 834, 89 N.Y.S.2d 894).

The presumption against a foreign domicile is stronger than the general presumption against a change of domicile. 'Less evidence is required to establish a change of domicile from one state to another than...