United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE.
Thomas Campaniello (“Thomas”) and Sandra
Campaniello (“Sandra”) (collectively,
“Plaintiffs”) bring this action against
Defendants New York State Department of Taxation and Finance
(“Department of Taxation”); New York State
Division of Tax Appeals, Tax Appeals Tribunal
(“TAT”); Commissioner of Taxation and Finance
(“Commissioner”); James H. Tully, Jr. and Roberta
Moseley Nero (collectively, “Defendants”),
alleging that Defendants violated their constitutional and
civil rights under 42 U.S.C. § 1983 and the Fourteenth
Amendment. Defendants move to dismiss Plaintiffs' Amended
Complaint (“Complaint”) for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). For the following reasons,
Defendants' motion is granted.
following facts are taken from Plaintiffs' Complaint and
accompanying exhibits. All uncontroverted facts in the
Complaint are construed, and all reasonable inferences are
drawn, in favor of Plaintiffs as the party asserting
jurisdiction. See Fed R. Civ. P. 10(c); Fountain
v. Karim, 838 F.3d 129, 134 (2d Cir. 2016).
Thomas and Sandra are happily married and spend at least half
their time in separate residences. Thomas lives in Florida in
an apartment that he purchased in 1981. With the exception of
his family, Thomas's business, social and community ties
have been in Florida since at least 2006. Thomas has a
Florida driver's license, which he obtained in 1998 and
renewed in 2008. He also owns several investment properties
in Florida in which Sandra “holds no interest.”
Sandra lives in New York in an apartment that she formerly
shared with Thomas full time (the “New York
Apartment”). Between 2001 and 2006, Thomas and Sandra
were separated for more than half of each year, but Thomas
frequently traveled -- and continues to travel -- to New York
to be with his wife, daughter and grandson.
November 19, 2007, Thomas sold one of his Florida properties
and realized a capital gain of $5, 392, 445 from the sale,
which he reported on his federal tax return. Believing he was
a Florida resident, Thomas filed nonresident tax returns in
New York for both 2006 and 2007. Sandra filed resident tax
returns in New York for both years.
2011, a Department of Taxation auditor determined that Thomas
was a New York resident and should have filed a New York
resident tax return for 2006 and 2007. The Commissioner
served Thomas with a Notice of Deficiency for the 2007 tax
year, claiming that Thomas owed the state of New York a $729,
501.39 tax deficiency and penalty for capital gains taxes on
the sale of the Florida property.
filed a petition challenging the determination of deficiency.
On June 25, 2015, an Administrative Law Judge
(“ALJ”) issued a determination that Thomas was a
domiciliary of New York City in 2007 and thus properly
subject to tax as a New York resident for that year. The ALJ
found that as of the date of the hearing, Thomas continued to
own, maintain and use the New York Apartment. Among numerous
other findings, the ALJ also found that Thomas had a pattern
of spending a portion of each week in both Florida and New
York, worked at a New York office while in New York,
continued to see New York doctors, had personal belongings
and clothing in the New York Apartment and listed the Bronx
as his county of residence on his 2006 nonresident tax form.
The ALJ considered Thomas's arguments that he did not
live at the New York Apartment and that no negative inference
should be drawn from the fact that he and his wife lived in
different states, but concluded that Thomas was domiciled in
New York City for the relevant tax year.
appealed the ALJ's determination to the TAT, arguing (1)
that the ALJ's determination was unconstitutional because
it denied Thomas his “constitutionally protected
right” to live in a different state than his wife, and
(2) that he was domiciled in Florida for the 2007 tax year.
The TAT considered Thomas's arguments and rejected them
in a July 21, 2016, decision written by Defendants Tully and
Nero. The TAT found that the New York Tax Law (“Tax
Law”) “does not require a husband and his spouse
to have the same domicile, ” and that Thomas and Sandra
had the right to “live apart together” if
desired. However, because the TAT also found that Thomas did
not establish that he was a Florida domiciliary within the
meaning of the Tax Law, the TAT affirmed the ALJ's
November 18, 2016, Plaintiffs filed the above-captioned case
asserting one cause of action, a violation of 42 U.S.C.
§ 1983 and the Fourteenth Amendment of the United States
Constitution, and seeking (1) a declaration that
“living apart together” is a
constitutionally-protected type of marriage, (2) a
declaration that Defendants' conduct violated
Plaintiffs' constitutional rights to “live apart
together” and (3) a “mandatory injunction
prohibiting Defendants from applying the [Tax Law] . . . such
that it penalizes married parties choosing to ‘live
together apart.'” The Complaint alleges that this
Court has subject matter jurisdiction based on diversity of
citizenship, and federal question jurisdiction over certain
civil rights actions. See 28 U.S.C. §§
with the filing of this action, Thomas appealed TAT's
decision to the New York Supreme Court Appellate Division,
Third Department, alleging that the TAT's decision was
arbitrary and capricious under New York law. Thomas did not
raise his federal constitutional argument before the Third
Department, choosing instead to raise it only in federal
district court properly dismisses an action under [Rule]
12(b)(1) for lack of subject matter jurisdiction if the court
lacks the statutory or constitutional power to adjudicate it
. . . ” Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir.
2015) (citation and internal quotation marks omitted).
“In resolving a motion to dismiss under Rule 12(b)(1),
the district court must take all uncontroverted facts in the
complaint . . . as true, and draw all reasonable inferences
in favor of the party asserting jurisdiction.”
Fountain, 838 F.3d at 134 (quoting Tandon v.
Captain's Cove Marina of Bridgeport, Inc., 752 F.3d
239, 243 (2d Cir. 2014)). Plaintiffs have the burden of
proving by a preponderance of the evidence that the court has
subject matter jurisdiction. Id.