New York: Tax Court clarifies test of intent for purposes of establishing domicile

New York’s Division of Tax Appeals recently issued an opinion that clarified its test of intent with regard to a purported new domicile. Generally speaking, the test is “whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it.” The court noted that under the usual analysis, it acknowledges a taxpayer’s declarations, but these are less persuasive than actions demonstrating the taxpayer’s “general habit of life.” Applying that here, the court concluded that the taxpayer, Gregory Blatt, had proved, by clear and convincing evidence, that he intended to, and did, change his domicile from New York City to Dallas, thus justifying a cancellation of the deficiency of $430,065.00, plus interest and penalties.
This case turned on whether the court agreed with Blatt that for the tax years 2009 and 2010, he had changed his domicile from New York to Texas, which rendered his presentation of the facts especially important. Indeed, in the New York Division of Tax Appeals, which some consider to be the most aggressive for these kinds of audits, Bloomberg declared that “it was the compelling story that carried the day.”
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Ohio: State Supreme Court allows non-resident’s tax credit of nearly $200,000

In the case Giddens v. Testa, the Ohio Supreme Court reversed a Board of Tax Appeals (Board) decision that disallowed a non-resident tax credit related to a distribution from a corporation that did some of its business in Ohio, for the tax year 2008. The tax commissioner’s theory was that the distribution constituted business income, and was therefore apportionable in part to Ohio, based on the proportion of the corporation’s business in that state. The Board affirmed the assessment, the taxpayers appealed, and the high court reversed the Board, concluding that the taxpayers properly treated the income at issue as nonbusiness income allocable solely to their state of domicile, Missouri.


The Court provided the following facts as background. The plaintiffs/appellants, Ernest and Louann Giddens, lived in Missouri, but paid Ohio income tax by virtue of their ownership of shares in a corporation that does business in Ohio. For the tax year at issue, 2008, that company was an S corporation. The S corporation, Redneck, Inc. is a wholesale supplier of equipment for trailer parks, including running gear, axles, springs, hitches, and jacks, had just two shareholders, the Giddens.
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Alabama: Expired Historic Rehabilitation Tax Credit Program could be renewed

In 2013, the Alabama legislature signed HB 140 into law, designed to provide tax help for owners who rehabilitate residential or commercial properties. The program, known as the Alabama Historic Rehabilitation Tax Credit Program (Program), offered a tax credit of up to 25 percent for the substantial rehabilitation of a historic residential or commercial property. The Alabama Historical Commission notes that between 2013 and 2015, $20 million in tax credits were available, for a total of $60 million. Commercial projects could receive the credit for up to $5 million in qualified expenses, and private residential properties up to $50,000.
The Program expired in May 2016, but at least one lawmaker is eager to bring it back, according to the Alabama NewsCenter. When the legislature convened on February 7, 2017, and State Sen. Jabo Waggoner revealed that he plans to introduce a similar measure to encourage the rehabilitation of abandoned buildings.
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Tread carefully when you step down

This article was published in Construction News on 1 December 2016.

Stepping down relevant clauses to subcontractors is rarely quick and easy when done properly – but it’s worth taking the time to do so.

Let’s take a familiar scenario: an employer engages a contractor to carry out works, but the finished works are already subject to agreements for lease between the employer and future tenants of the finished project.

The terms of the agreements for lease are likely to contain duties relating to the performance of the works. Some common examples include:

  • practical completion conditions;
  • the provision of collateral warranties or third party rights;
  • liquidated damages;
  • deadlines for practical completion and access prior to completion (e.g. to fit out a retail unit); and
  • maximum and minimum area limits which, if not adhered to, allow the tenant to terminate the agreement for lease or entitle the tenant to a reduction in rent and/or liquidated damages.

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Ecuadorean Villagers Continue Legal Battle Against Chevron

Yaiguaje v. Chevron Corporation 2017 ONSC 135 (CanLII)

The saga continues.  This case returned to the Ontario Superior Court of Justice for consideration after a hearing at the Supreme Court of Canada.  Forty-seven individual plaintiffs in this action, representing approximately 30,000 indigenous Ecuadorian villagers, are suing Chevron and Chevron Canada to attempt to enforce a  US$9.5 billion judgment.  The enforcement proceedings first came before the Ontario Court where a motions judge – Justice D.M. Brown (now on the Ontario Court of Appeal) – held that the Ontario Court had jurisdiction to recognize and enforce the Ecuadorian judgment but on his own motion stayed the proceedings.  The Ontario Court of Appeal over-ruled Justice Brown’s imposition of a discretionary stay but upheld his decision on the jurisdictional issue.  The Supreme Court of Canada upheld the decision of the Court of Appeal. 

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Shutts & Bowen Names Four New Partners

Shutts & Bowen LLP named four new partners during its annual meeting.

“These promotions exemplify Shutts’ commitment to recognize and reward leadership, integrity and legal acumen and to plan for the future growth and success of the firm,” said Managing Partner Micky Grindstaff.  “They also demonstrate Shutts’ diversity and our presence as a full-service business law firm throughout Florida.”

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Ted Goloff on the front page of the Bar Journal

February 14, 2017 — The latest edition of the Journal — Barreau du Québec begins with a paper on the consequences of Donald Trump’s election on Canada–US legal relationships. Theodore Goloff’s comments appear on the front page to start off the analysis.

Ted is also the author of “Canada — Good Grief! Is that my Supervisor on the Picket Line?”, a paper in the spring 2017 edition of The International Employment Lawyer, a blog hosted by the International Employment Law Committee of the American Bar Association’s Section of International Law.

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Leading Anti-Corruption Advocates to Meet at Summit in Amsterdam

The International Monetary Fund has estimated that bribery costs the global economy an annual 1.5 to 2 Trillion USD. In the European Union, the economic costs associated with corruption total one percent of its GDP, a figure that nearly equals its annual budget. In developing and developed countries alike, corruption remains a grave social problem, with a negative effect on economic growth and the delivery of government services.

With the goal of combating corruption, Duxes has organized and will host the Anti-Corruption Compliance Europe Summit 2017, on April 26-27 in Amsterdam. The summit will gather more than 150 delegates, representing leading companies, government agencies, and non-profit institutions. During the two-day event, speakers and panelists will discuss important topics at the forefront of anti-corruption compliance, including enforcement trends, relevant legislation, industry-specific corruption, and models for compliance programs, among other issues.

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High Court: NPPR Charge is deductible in Calculating Income Tax on Rental Income

In brief

A recent High Court case has ruled that the Non Principal Primary Residence Charge (NPPR) is deductible in calculating a landlord’s income tax on rental income. In practice, however, refunds can only be claimed in respect of outstanding tax relief on NPPR Charges paid in 2013 due to a four year statutory limitation for claiming refunds. Landlords have until the 31st December 2017 to claim this refund.

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Hall & Wilcox boosts Melbourne Property & Projects team with two new appointments

Leading business law firm, Hall & Wilcox, has further strengthened its Property & Projects team in Melbourne with the appointment of new special counsel, Nikki Carroll and Mark Croft.

Nikki was previously a senior lawyer at Herbert Smith Freehills, and brings specialist experience in private infrastructure investment including project development, acquisition and financing for Australian and international transactions. Nikki has also worked as legal counsel for one of Australia’s largest fund managers and a clean energy start-up.

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