NEW YORK TAX INSIGHTS

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1 MOFO NEW YORK TAX INSIGHTS Volume 6, Issue 5, May 2015 IN THIS ISSUE Highlights of New York State Budget Bill Page 1 State Tribunal Rejects Taxpayer s Claim That She Changed Residency Page 2 Summary Judgment Awarded Against Lawyer Who Failed to Ensure Compliance with Bulk Sale Law Page 3 Insights in Brief Page 4 EDITORS Hollis L. Hyans hhyans@mofo.com Irwin M. Slomka islomka@mofo.com NEW YORK STATE + LOCAL TAX GROUP Craig B. Fields cfields@mofo.com Hollis L. Hyans hhyans@mofo.com R. Gregory Roberts rroberts@mofo.com Amy F. Nogid anogid@mofo.com Eugene J. Gibilaro egibilaro@mofo.com Michael J. Hilkin mhilkin@mofo.com Kara M. Kraman kkraman@mofo.com Paul H. Frankel pfrankel@mofo.com Mitchell A. Newmark mnewmark@mofo.com Irwin M. Slomka islomka@mofo.com Michael A. Pearl mpearl@mofo.com Rinat Hafizov rhafizov@mofo.com Nicole L. Johnson njohnson@mofo.com Rebecca M. Ulich rulich@mofo.com HIGHLIGHTS OF NEW YORK STATE BUDGET BILL On April 1, 2015, the New York State Legislature passed the final New York State Budget, which was signed into law by Governor Cuomo on April 13, (S. 4610A, A. 6721A and S. 2009B, A. 3009B.) Among its key tax provisions are the following: NYC Corporate Tax Conformity. The New York City corporate tax regime will now substantially conform to the New York State corporate tax reform changes enacted last year (as modified by this year s changes, as discussed below), retroactive to tax years beginning on or after January 1, This conformity includes taxing C corporations and banks under one tax (a new Article 3-A), the adoption of market-based sourcing, and the adoption of mandatory water s edge unitary combined reporting. There are several important areas of non-conformity with the New York State tax. Unlike the State tax, the final bill did not include an economic nexus provision under the City corporate tax. Also unlike the State tax, there is no phase-out of the alternative tax on capital. One curious aspect of the legislation is the retention of the pre-reform New York City general corporation and bank taxes to apply solely to S corporations. The Department of Finance has embarked on a study of how all passthrough entities should be taxed, and there may be further legislation regarding S corporations next year. Technical Changes to NYS Corporate Tax Reform. The new law contains several technical changes to last year s New York State corporate tax reform legislation, some of which are quite substantive. For example, the definition of investment capital, the income from which is now exempt from tax, has been significantly redefined (and, critically, further narrowed) from last year s revised definition. Another change is that investment income (before reduction for related interest expenses) will be capped at 8% of entire net income (or at 8% of the Article 9-A unitary group s combined ENI). The rules for the prior net operating loss conversion subtraction (for pre-2015 NOLs) and net operating losses (for losses generated after 2014) have also been modified. The changes are also made applicable to the New York City corporate tax reform legislation. Sales Tax Relief for Vessels and Aircraft. Effective June 1, 2015, receipts to which sales and use tax on vessels in New York State are continued on page 2 Attorney Advertising

2 applied will be capped at $230,000. The new law also contains more relaxed, but more precise, rules for when use tax will be due on in-state use of a vessel. Effective September 1, 2015, several beneficial changes to the sales and use tax on aircraft will go into effect, including a new exemption for general aviation aircraft. The final legislation does not include several controversial provisions contained in the Governor s proposed Executive Budget in January These included a provision that would have imposed a sales tax collection obligation on marketplace providers, and another that would have included several broad-based sales tax loophole closer provisions. The final legislation also does not include a previously proposed professional and business license tax clearance procedure. STATE TRIBUNAL REJECTS TAXPAYER S CLAIM THAT SHE CHANGED RESIDENCY By Michael J. Hilkin In Matter of Tatiana Varzar, DTA No (N.Y.S. Tax App. Trib., Apr. 2, 2015), the New York State Tax Appeals Tribunal rejected an individual income taxpayer s claim that she had changed her residency from Brooklyn, New York, to Florida, finding she had failed to establish either that she had changed her domicile or that she was not a statutory resident of New York State and City. Background. During the years 2004, 2005, and 2006 (the Years in Issue ), Ms. Varzar owned and maintained a home in Brooklyn and another home in Pompano Beach, Florida. Separately, she claimed to have maintained an apartment in Tampa, Florida, for an unspecified period during the Years in Issue. Ms. Varzar carried on an assortment of business ventures in New York and Florida. She was the principal shareholder of two Brooklyn-based businesses: a café; and a restaurant and nightclub. She also operated a short-lived casino boat business in Tampa during some part of 2004, and a catering business venture near her Pompano Beach home, which catered five or six parties during the Years in Issue. Finally, she purchased a restaurant near her Pompano Beach home, but the restaurant did not open until after the Years in Issue. For each of the Years in Issue, Ms. Varzar filed individual income tax returns as a nonresident of New York. On those returns, Ms. Varzar claimed her daughters, who resided in her Brooklyn home, as dependents. On audit, the Department asserted that Ms. Varzar was a domiciliary of New York State and City, and that she was a statutory resident of New York State and City because she failed to show that she spent more than 183 days outside of New York State and City for each calendar year. ALJ Proceeding. Ms. Varzar had testified that two events a fire at her restaurant and nightclub business in September 2003, and being beaten and robbed at gunpoint in February 2004 convinced her to leave Brooklyn. However, the evidence in the case included a nonresident audit questionnaire completed by Ms. Varzar, which stated that she left Brooklyn as of 2002, and a June 9, 2005 press release, in which the Brooklyn borough president called Ms. Varzar a Brooklyn resident and restauranteur and honored her for her service to the community. Ms. Varzar had also submitted an assortment of bills and other documentation to support her claim of Florida residency. However, there were a number of issues with the documentation, including that: (1) some of the bills provided were mailed to her Brooklyn home; (2) many of the bills and documentation were in the name of her husband, who did not testify in the case; (3) the Florida address on many of the documents did not coincide with the address of Ms. Varzar s Florida home; and (4) much of the documentation was not related to the Years in Issue. Ms. Varzar did not provide any documentation as to her whereabouts on any particular day during the Years in Issue and, according to the ALJ, the record indicated that her testimony regarding her various businesses during the Years in Issue was vague and general in nature. The ALJ upheld the Department s position on both the domicile issue and the statutory resident issue. On appeal to the Tribunal, Ms. Varzar maintained that she had satisfied her burden of proof in the ALJ proceeding that she was domiciled in Florida and was not a statutory resident of New York State or City. The law. For New York State and City purposes, an individual will be treated as a resident if he or she is domiciled in the State and/or City. The Department s regulations define domicile as the place which an individual intends to be such individual s permanent home, and state that an individual maintains a domicile until such person moves to a new location with the bona fide intention of making a fixed and permanent home there. 20 N.Y.C.R.R (d). New York case law establishes that, once a domicile is established, the party claiming that there has been a change in domicile has the burden to prove by clear and convincing evidence that such domicile has changed. Matter of Bodfish v. Gallman, 50 A.D.2d 457 (App. Div. 3d Dep t, 1976). Determinations regarding changes of domicile typically require a facts-and-circumstances analysis, but the Tribunal has identified four objective criteria to be 2 MoFo New York Tax Insights, May 2015 continued on page 3

3 considered: (1) the retention of a permanent place of abode in New York; (2) the location of business activity; (3) the location of family ties; and (4) the location of social and community ties. Separately, a nondomiciliary will be treated as a statutory resident if he or she maintains a permanent place of abode in the State and/or City and spends in the aggregate more than one hundred eighty-three days of the taxable year in the State and/or City. Tax Law 605(b)(1)(B); Admin. Code (b)(1)(B). The Department s regulations state that when an individual claims domicile outside of New York but maintains a permanent place of abode in New York, he or she must keep and have available for examination... adequate records to substantiate the fact that [he or she] did not spend more than 183 days... within New York. 20 N.Y.C.R.R (c). Tribunal decision. The Tribunal affirmed the ALJ s decision. Analyzing the four criteria for determining whether a taxpayer changed domicile, the Tribunal concluded that Ms. Varzar had failed to prove that she changed her domicile from Brooklyn to Florida. The Tribunal did not find convincing the two reasons Ms. Varzar identified for her change of domicile because, among other things, both events occurred after she had claimed to change domicile in a nonresident audit questionnaire. The Tribunal noted that Ms. Varzar did not provide any testimony explaining what aspect of life in Florida had caused her to make her Florida home her new domicile, and did not show the number of days she spent at her Florida home versus her Brooklyn home. Additionally, the Tribunal determined that Ms. Varzar s business ties to Florida were limited as compared to her Brooklyn business ties, and that the evidence reflected Ms. Varzar as having family and community ties in Brooklyn, but not any family or community ties to Florida. The Tribunal did not find convincing the two reasons Ms. Varzar identified for her change of domicile because, among other things, both events occurred after she had claimed to change domicile in a nonresident audit questionnaire. The Tribunal also concluded that the Department properly characterized Ms. Varzar as a statutory resident because she did not carry her burden to show that she was not present in New York State or City for more than 183 days during any of the Years in Issue. The Tribunal highlighted the lack of any documentary evidence establishing Ms. Varzar s whereabouts during the Years in Issue, and upheld the ALJ s conclusion that Ms. Varzar s testimony was not sufficiently credible. Additional Insights This case highlights the difficulties in establishing a change of residency from New York to another state, and in particular a change in domicile. Individuals often find it challenging to provide documentation and unequivocally consistent testimony showing a clear timeline of events supporting a claimed change in residency, especially as audits and trials usually occur years after an individual leaves New York. Further, individuals leaving New York but continuing to maintain a New York abode may not keep detailed records regarding the days spent in New York as opposed to those spent elsewhere, unless they have had previous experience with residency audits. The lack of contemporaneous documentation, and a coherent explanation for the change in domicile at the time it was claimed to occur, can be fatal to establishing a persuasive case. SUMMARY JUDGMENT AWARDED AGAINST LAWYER WHO FAILED TO ENSURE COMPLIANCE WITH BULK SALE LAW By Hollis L. Hyans A judge of the New York State Supreme Court has granted summary judgment against the attorney who represented the buyer of a business in an action alleging malpractice for failure to properly comply with the bulk sale law, but denied summary judgment on damages and also denied a third-party defendant s motion to dismiss the claim against him. Nilzara, Inc. v. Karakus Inc. et al., No. 1181/2013, 2015 NY Slip Op (U) (N.Y. Sup Ct. Kings Cnty., Mar. 31, 2015). Background Facts. The underlying matter involved the purchase of a restaurant by Nilzara, Inc., the plaintiff in this action, from Karakus Inc., an entity owned by Kevin Karakus. After the purchase, a warrant was filed against Nilzara by the New York State Department of Taxation and Finance, seeking payment from Nilzara of over $83,000 in sales and use taxes owed by Karakus. Nilzara sued the seller and its owner, alleging that they had executed attestations that there were no existing creditors of the seller, which Nilzara claimed were false, because there was unpaid sales tax due to the New York State Department 3 MoFo New York Tax Insights, May 2015 continued on page 4

4 of Taxation and Finance. Nilzara also sued its counsel in the transaction, Nellie Levitis, for malpractice, claiming she had failed to ensure that the necessary notification of a bulk sale had been filed and that the proceeds of the sale were held in escrow until a response was received. Finally, Nilzara sued the counsel who represented the seller, Erik Ikhilov, claiming he had agreed to be responsible for filing the necessary notification of a bulk sale. Although Nilzara s action against Mr. Ikhilov (the seller s lawyer) had been voluntarily dismissed, Ms. Levitis filed a third-party action against him, seeking indemnity and contribution if she were to be held liable, claiming, as had the complaint originally, that he had assumed the responsibility for filing the bulk sale notice, and that he improperly released the purchase funds from escrow. Nilzara then moved for summary judgment on both liability and damages against Ms. Levitis, and Mr. Ikhilov moved to dismiss the third-party claim against him. Decision. The trial court granted Nilzara s motion for summary judgment for legal malpractice against Ms. Levitis on the liability portion of its claim, finding as a matter of law that Ms. Levitis had represented Nilzara and had failed to ensure compliance with the provisions of Tax Law 1141(c), which requires filing of notification whenever a bulk sale is made. However, the court denied summary judgment on damages, finding insufficient information in the record regarding what part, if any, of the tax assessment was still due and owing, and what actions were taken before the sale and the issuance of the warrant by the Department. [A]ny lawyer representing a purchaser in such a transaction must be certain to ensure compliance with the bulk sale law as part of his or her representation of the purchaser, or face a possible claim for legal malpractice. Similarly, the motion by Mr. Ikhilov to dismiss the third-party complaint against him was also denied. The court found that Ms. Levitis has a recognizable claim for damages if she can establish that Mr. Ikhilov assumed responsibility for filing the bulk sale notification and for maintaining an escrow of the sales proceeds to ensure compliance with the Tax Law. Additional Insights As is noted repeatedly in decisions by the Division of Tax Appeals and the Tax Appeals Tribunal, the bulk sale provisions in New York s statutes require that a bulk sale purchaser notify the Department at least 10 days in advance of the upcoming sale, and then withhold from the sales proceeds the amount of any sales tax that it has been notified by the Department the seller may owe. Failure to make the necessary filings and withholding can result in personal liability by the purchaser for the seller s pre-existing sales tax liabilities up to the amount of the purchase price. This case is a reminder that any lawyer representing a purchaser in such a transaction must be certain to ensure compliance with the bulk sale law as part of his or her representation of the purchaser, or face a possible claim for legal malpractice. It is important to note that the trial court in this case needed no further facts other than representation of the purchaser and failure to ensure compliance with the statute to grant summary judgment against the lawyer on liability. INSIGHTS IN BRIEF Tax Appeals Tribunal Holds That Foreign Corporation License Fee Should Be Calculated on the Deemed Par Value of Stock Set Under California Law Reversing an ALJ determination, the New York State Tax Appeals Tribunal held that a corporation formed under California law that was doing business in New York was entitled to calculate the former license fee on non-new York corporations (former Tax Law 181) using the deemed $1 per share par value set by the California law under which the corporation was formed. Matter of frog design, inc., DTA No (N.Y.S. Tax App. Trib., Apr. 15, 2015). Under the former license fee, the per share tax rate on no par value stock was $0.05 per share and the tax rate on par value stock was 0.05% of the par value of each issued share. Although the taxpayer s articles of incorporation did not state a par value for its shares, under California law the corporation s stock was deemed to have a $1 per share value. The Tribunal held that it was reasonable to give effect to that law, and to treat the deemed par value as part of the taxpayer s articles of incorporation for purposes of the license fee calculation. Accordingly, the Tribunal held that the taxpayer was subject to the license fee at the rate for par value stock. Morrison & Foerster LLP represented the taxpayer in this case. Individual Cannot Deduct Real Estate Rental Losses Because She Is Not a Real Estate Professional An individual was held to not qualify as a real estate professional, and therefore could not deduct her real estate rental losses against her other passive income for New York State income tax purposes. Erik and Kathryn Brandvold, DTA (N.Y.S. Div. of Tax App., Mar. 19, 2015). Although the taxpayer was an officer and employee of a 4 MoFo New York Tax Insights, May 2015 continued on page 5

5 New York-based real estate company, an Administrative Law Judge found that she had no ownership interest in the company, and that she did not prove that she spent the requisite number of hours to evidence that she materially participated in a real estate rental business. Therefore, the ALJ upheld the denial of deductions for the individual s real estate rental losses. ALJ Denies Earned Income Credits for Lack of Documentation In Matter of Albania Espada, DTA No (N.Y.S. Div. of Tax App., Apr. 9, 2015), a New York State Administrative Law Judge denied the earned income tax credit ( EITC ) claimed by a personal income taxpayer. Ms. Espada claimed she earned $7.15 an hour working at one bar, and $180 per week at another, receiving approximately $1,300 per month including tips, and that she paid her mother approximately $150 per week to provide childcare on four days per week. All the amounts were paid in cash, and she had no pay stubs, receipts, deposit slips, or forms W-2 or 1099 from either employer, nor any records of her expenses, and could not provide exact amounts or dates. In the complete absence of any supporting documentation, the EITC was denied. LAW360 NAMED MORRISON & FOERSTER AMONG ITS PRACTICE GROUPS OF THE YEAR FOR TAX. ONE OF THE BEST NATIONAL FIRMS IN THE AREA OF STATE INCOME TAXATION. LEGAL 500 US 2013 CHAMBERS GLOBAL HAS NAMED MORRISON & FOERSTER ITS 2013 USA LAW FIRM OF THE YEAR. THE US-BASED GLOBAL GIANT, THE EDITORS SAID IN ANNOUNCING THE HONOR, HAS EXPERIENCED ONE OF THE MOST SUCCESSFUL YEARS IN ITS LONG AND ILLUSTRIOUS HISTORY. U.S. NEWS BEST LAWYERS BEST LAW FIRMS 2013 RANKED OUR NEW YORK TAX LITIGATION AND TAX LAW PRACTICES TIER 1. To ensure compliance with requirements imposed by the IRS, Morrison & Foerster LLP informs you that this publication has been prepared for general informational purposes only. None of the statements made herein constitute financial, accounting, tax or other professional advice of any kind. Please consult with your own advisors to discuss matters relevant to your specific situation. If you wish to change an address, add a subscriber, or comment on this newsletter, please Hollis L. Hyans at hhyans@mofo.com, or Irwin M. Slomka at islomka@mofo.com, or write to them at Morrison & Foerster LLP, 250 West 55th Street, New York, New York MoFo New York Tax Insights, May Morrison & Foerster LLP

6 ABB v. Missouri Albany International Corp. v. Wisconsin Allied-Signal, Inc. v. New Jersey AE Outfitters Retail v. Indiana American Power Conversion Corp. v. Rhode Island Astoria Financial v. New York City Citicorp v. California Citicorp v. Maryland Clorox v. New Jersey Colgate Palmolive Co. v. California Consolidated Freightways v. California Container Corp. v. California Crestron v. New Jersey Current, Inc. v. California Deluxe Corp. v. California DIRECTV, Inc. v. Indiana DIRECTV, Inc. v. New Jersey Dow Chemical Company v. Illinois DuPont v. Michigan EchoStar v. New York Express, Inc. v. New York Farmer Bros. v. California frog design, inc. v. New York General Motors v. Denver GMRI, Inc. (Red Lobster, Olive Garden) v. California GTE v. Kentucky Hair Club of America v. New York Hallmark v. New York Hercules Inc. v. Illinois Hercules Inc. v. Kansas Hercules Inc. v. Maryland Hercules Inc. v. Minnesota Hoechst Celanese v. California Home Depot v. California Hunt-Wesson Inc. v. California IGT v. New Jersey Intel Corp. v. New Mexico Kohl s v. Indiana Kroger v. Colorado Lorillard Licensing Company v. New Jersey Lorillard Tobacco Co. v. Michigan McGraw-Hill, Inc. v. New York MCI Airsignal, Inc. v. California McLane v. Colorado Mead v. Illinois Meredith v. New York Nabisco v. Oregon National Med, Inc. v. Modesto Nerac, Inc. v. New York NewChannels Corp. v. New York OfficeMax v. New York Osram v. Pennsylvania Panhandle Eastern Pipeline Co. v. Kansas Pier 39 v. San Francisco Powerex Corp. v. Oregon Rent-A-Center v. Oregon Reynolds Metals Company v. Michigan Reynolds Metals Company v. New York R.J. Reynolds Tobacco Co. v. New York San Francisco Giants v. San Francisco Science Applications International Corporation v. Maryland Scioto Insurance Company v. Oklahoma Sears, Roebuck and Co. v. New York Shell Oil Company v. California Sherwin-Williams v. Massachusetts Sparks Nuggett v. Nevada Sprint/Boost v. Los Angeles Tate & Lyle v. Alabama Thomson Reuters v. Michigan Toys R Us-NYTEX, Inc. v. New York City Union Carbide Corp. v. North Carolina United States Tobacco v. California UPS v. New Jersey USV Pharmaceutical Corp. v. New York USX Corp. v. Kentucky Verizon Yellow Pages v. New York Wendy s International v. Illinois Wendy's International v. Virginia Whirlpool Properties v. New Jersey W.R. Grace & Co. Conn. v. Massachusetts W.R. Grace & Co. v. Michigan W.R. Grace & Co. v. New York W.R. Grace & Co. v. Wisconsin WHEN THESE COMPANIES HAD DIFFICULT STATE TAX CASES, THEY SOUGHT OUT MORRISON & FOERSTER LAWYERS. SHOULDN T YOU? For more information, please contact Craig B. Fields at (212) Morrison & Foerster LLP

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