Out-of-State Owners Could Face Tax Bill
Connecticut and New Jersey residents with a Hamptons summer cottage or a Manhattan pied-a-terre are about to get a nasty surprise: New York state wants more taxes from them.
A New York court ruled last month that all income earned by a New Canaan, Conn., couple is subject to New York state taxes because they own a summer home on Long Island they used only a few times a year. They have been hit with an additional tax bill of $1.06 million.
Tax experts and real estate brokers say this ruling could boost the tax bill for thousands of business executives who own New York City apartments they use only occasionally. It could also hurt sales in the Hamptons and New York's other vacation-home communities.
"People will think twice about spending any summer time in New York," says Robert Willens, a New York-based tax consultant. "The amount of tax they could be subjected to is likely to outweigh the benefit."
A spokesman for the state Taxation Department issued a written statement that said it was "pleased" with the decision. "However, these cases are fact-intensive and as such each case stands on its own specific fact pattern," it said.
The new ruling applies only to people who spend more than 183 days in New York, which would include many out-of-state commuters to the city. For years, New York law stated that these people have to pay taxes on any income they make in this state. But they generally haven't had to pay New York taxes on income they make outside of the state or on their spouses' income if they work elsewhere.
Under the recent ruling, this might change for many out-of-state residents who own vacation homes or apartments here. In effect, it reinterprets what counts as a permanent residence.
In defining a "permanent place of abode," New York tax code specifically excludes "a mere camp or cottage, which is suitable and used only for vacations." New York tax experts say the new ruling is the first they recall that counts summer homes as permanent residences.
"This is going to open up a Pandora's box," says Eric Kramer, a tax attorney in Uniondale, N.Y. "I don't think anyone previously thought vacation homes would count as a permanent residence."
Income that now could be taxed by New York includes capital gains, dividends and securities, attorneys said. In the event of an audit, these homeowners would also be responsible for back taxes, plus interest and penalties, as a result of their New York property.
Judge Joseph Pinto, a New York administrative law judge, made the novel ruling in a 2009 case that was affirmed last month on appeal by the New York state tax appeals tribunal. Mr. Pinto seized on what is meant by a permanent residence, which is the benchmark for whether all, or just the in-state portion, of an individual's income is subject to New York state tax.
Mr. Pinto ruled that the couple's Long Island vacation home qualifies under the law as a permanent abode because it was suitable for living year-round—whether or not the couple actually stayed in the home wasn't relevant. Under the ruling, if an owner doesn't spend a single a day in a home it could still count toward a permanent residence.
The Napeague, Long Island, house was purchased by John and Laura Barker for $260,000 in 1997, according to court documents. Mr. Barker works in New York City. From 2002 to 2004, the period that was assessed for back taxes, the Barkers said they spent only a few days a year at the Long Island home, usually during the summer.
The appeals court upheld the ruling that it's not the owners' intended use of the house that matters, but whether the home could be used all year long. The court said that the house is approximately 1,122 square feet with heat, electricity, and internet service "making it very habitable and comfortable year round," according to court documents.
The court also said that Mrs. Barker's parents, who sometimes stayed at the home throughout the colder months, were evidence that it was a permanent residence even though the Barkers never used it that way.
The Barkers countered that they used the home only a few days a year, adding that the refrigerator was usually empty, court documents showed. They cited clothing not being stored there as evidence that it was a part-time residence.
"We think the decision is wrong. We are evaluating our options including a continuation of appeals," Mr. Barker said. "We imagine this decision will have a chilling effect on New Your tourism and real estate values among other second and third order effects."
Tax attorneys said they were unlikely to get the ruling overturned.
