La Vigne v. State Tax Commission

38 A.D.2d 773, 328 N.Y.S.2d 10, 1972 N.Y. App. Div. LEXIS 5563

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 1972
• Status: Published

Opinion

Proceeding under CPLR article 78 (transfered to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Tax Commission which held petitioners taxable as residents of New York. The issue raised in this proceeding is whether a serviceman domiciled in .New York but living on a military base outside the State is able to “ maintain a permanent place of abode elsewhere” within the meaning of section 605 (subd. [a], par. [1]) of the Tax Law. The State Tax Commission determined that a serviceman domiciled in New York but living on a military base outside the State is unable to maintain a permanent place of abode elsewhere. We hold that the determination of a permanent place of abode outside the State should not depend merely upon whether petitioners lived on or off the military base. Accordingly, the proceeding should be remitted to the State Tax Commission to determine whether other factors do or do not establish that petitioners had a permanent place of abode outside the State. Determination annulled, with costs, and matter remitted for further proceedings. Herlihy, P. J., Greenblott, Cooke, Sweeney and Simons, JJ., concur.