City of New York v. Lieutenants Benevolent Ass'n

285 A.D.2d 329, 730 N.Y.S.2d 78, 169 L.R.R.M. (BNA) 2700, 2001 N.Y. App. Div. LEXIS 8338
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 6, 2001
StatusPublished
Cited by2 cases

This text of 285 A.D.2d 329 (City of New York v. Lieutenants Benevolent Ass'n) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. Lieutenants Benevolent Ass'n, 285 A.D.2d 329, 730 N.Y.S.2d 78, 169 L.R.R.M. (BNA) 2700, 2001 N.Y. App. Div. LEXIS 8338 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Tom, J.

In this appeal, we review the question of whether New York City’s verification procedure for refunds of excess payments made to the City pursuant to section 1127 of the New York City Charter may be unilaterally imposed on the nonresident employees represented by respondent unions, or must be negotiated with these unions.

Respondents include unions representing New York City Police Department lieutenants and captains. Although New York City civil service employees generally are required to reside in New York City as a condition of their employment, certain specified employees are exempt from the general residency requirement. Exempt employees include police officers (Public Officers Law § 3 [2], [19]). Such employees are not directly responsible for the income tax imposed by New York City on City residents. However, financial obligations that correlate with a resident’s tax obligation are imposed by New York City Charter § 1127 on such nonresident employees. These obligations are payments that are contractually agreed to as a condition of employment, and as such are not taxes. This voluntary scheme has been upheld (Matter of Legum v Goldin, 55 NY2d 104). As is articulated in the verified petition submitted by the New York City Corporation Counsel on behalf of the City, the City recognizes that nonresident employees enjoy a financial benefit in this regard not available to City residents. Hence, [331]*331the City, as an employer rather than as a sovereign, seeks not only to achieve some equity by imposing some financial burden that mathematically correlates with what otherwise would be a tax gain for nonresident City employees, but also to mitigate such a financial incentive that otherwise might contribute to City employees relocating their residences outside of the City (see, Matter of Ganley v Giuliani, 94 NY2d 207, 216).

Since 1973, City nonresident employees must, as a condition of their employment, pay to the City the difference between the employees’ actual tax and the tax that would have been paid had the employees been City residents. Employees as a precondition to employment, contractually, and voluntarily, agree in writing to this obligation prior to being accepted in City employment. The amount, typically paid through payroll deductions, is computed as though each nonresident employee were a City resident. Historically, this quasi-taxing regime relied significantly for enforcement on self-verification. At the end of each year, a nonresident employee must file a form, “Form 1127,” with the New York City Department of Finance, to determine if the employee has satisfied that obligation. The form also allows for itemization of certain miscellaneous deductions, including unreimbursed employee expenses which also are deductible on Federal Income Tax 1040 forms. Such expenses include commuting mileage, other travel expenses, electronic communications and other communications expenses, etc., and, for employees such as those involved in this appeal, uniforms and weapons expenses. The City notes a concern that many City employees do not itemize, but, rather, aggregate, these expenses as deductions on the section 1127 form, and fail to attach a 1040 Schedule A to the section 1127 filing. If such deductible expenses more than offset an employee’s section 1127 payments, the employee may be entitled to a refund in such amounts. The City, understandably, is interested in tightening up the revenue collection procedures of its Department of Finance. What is at issue here, though, is not the revenue collection, per se, but employees’ claims for refunds of excess payments against which certain deductions may be debited at year end.

Section 1127 of the New York City Charter states, in relevant part, that

“ [n] otwithstanding the provisions of any local law, rule or regulation to the contrary, every person seeking employment with the city of New York * * * shall sign an agreement as a condition prece[332]*332dent to such employment to the effect that if such person is or becomes a nonresident individual * * * during employment by the city, such person will pay to the city an amount by which a city personal income tax on residents computed and determined as if such person were a resident individual * * * during such employment, exceeds the amount of any city earnings tax and city personal income tax imposed on such person for the same taxable period” (§ 1127 [a]).

The Charter provision, notably, is silent on the procedure for refunding excess payments, and provides no textual guidance on whether devising such a procedure is subject to collective bargaining.

In May 1998, the Department of Finance started sending notices to nonresident members of the respondent unions demanding that receipts or canceled checks be provided as verification of the claimed expenses on Form 1127. The notices advised that if such verifications were not received within 30 days, the dilatory employee’s refund claim would be “denied and/or delayed.” Respondent unions reacted in July 1998 by filing improper practice petitions with the New York City Board of Collective Bargaining (BCB), which is also a respondent in this proceeding. The petitions, seeking injunctive relief pending negotiations, alleged that the City’s 30-day verification requirement violated the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-306 [a] [4]). The City responded by arguing that the verification requirement, insofar as it does not alter a term or condition of employment, is not subject to collective bargaining. Moreover, the City argued that since 1974 it had been requesting verification of reimbursable expenses from nonresident employees who fail to itemize qualifying expenses on their 1127 forms, and for the prior three years had requested verification from such employees whose claimed expenses exceeded 10% of their gross income, so that the need for a procedure was hardly novel.

The BCB determination found that the City was entitled to seek verification for the claimed deductions, but took issue with the 30-day time period. BCB rejected the City’s position that allowed the City to “unilaterally deny a refund altogether or delay a refund for an unreasonably lengthy period of time on the ground that the employee failed to supply requested receipts within 30 days.” The issue was not the City’s right to [333]*333verification, but the unilateral imposition of this particular verification procedure which, by allowing the City to deny the claimed deduction, which thus affected annual take-home pay, did affect a condition or term of employment. The BCB ruling continued:

“Although the City’s desire to verify the calculation of the amount an employee owes under § 1127 is understandable, it must bargain before it imposes such a time limitation on the employee’s right to a refund, for the result of a denial or a lengthy delay in processing of an employee’s refund is a reduction in wages. The right to receive a refund of amounts withheld in excess of what is required under § 1127 may not be extinguished or delayed indefinitely by unilateral management action. This is so because the sums withheld under § 1127 are not a tax, but rather a condition of employment.”

In BCB’s view, then, the question of what particular time period would be reasonable to allow for verification and processing of refund requests under section 1127 required resolution by collective bargaining.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fleming v. Giuliani
821 N.E.2d 959 (New York Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
285 A.D.2d 329, 730 N.Y.S.2d 78, 169 L.R.R.M. (BNA) 2700, 2001 N.Y. App. Div. LEXIS 8338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-lieutenants-benevolent-assn-nyappdiv-2001.