The opinion
Mahoney, P. J., and Mikoll, J.,
dissent and vote to annul in the following memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent. The instant record prompts the question, “To what lengths must a taxpayer go in order to effectuate a change in domicile?” The Tax Commission’s decision focuses not on the whole picture, but on a few facts which, when assessed against the whole, are insignificant and do not support its determination by substantial evidence. The majority attributes significance to the fact that Mr. Mercer’s new job opportunity abroad was the sole reason which prompted the family’s move to England. Rather than finding the reason for the move to be unique, we find it to be the most common and pragmatic of reasons why people change their domicile. It should be noted that the commission concluded that “petitioners departed without ever intending to return”. This finding is contradicted by its subsequent conclusion that “the Mercers did not intend to stay permanently in England”. Ruminations on a speculative, possible future retirement to the Sun Belt, which so often figure in people’s dreams, are hardly a basis on which to conclude that a domicile was not established in England. The future is never carved unchangingly in stone. When the Mercers left New York, without intending ever to return, they had, of necessity, to alight somewhere. Their move to England was not for pleasure, nor were they part of the jet set which buzzes from one spot to another. Home was where their hearth was and that could be nowhere else but in the expensive, lovely home they had purchased in Weybridge, England, and which they remodeled extensively to suit their long-term plans. The Mercers had unequivocably broken all ties with New York. They sold their New York home, left aged parents behind, and dramatically uprooted themselves and their children. They sent their young son, Marcus, on ahead to England to live with a tutor so as to prepare him for a successful adjustment to a European-type school. Their daughter, at *638 considerable financial loss, surrendered her New York State Regents’ college scholarship and registered in a European school. They put their pet dog and themselves through the agony of its nine-month quarantine. They severed all legal, business, social and civic contacts with New York State. This was all done with an obvious intention to relocate permanently in England. There is absolutely no reason to conclude that New York remained their domicile after their wholesale move to England simply because they thought of a possible retirement in Florida. Such speculative plans did not alter the demonstrated intent to make England their permanent home. “Permanent” is not to be equated with “never to be changed under any circumstances”. The fact that Mr. Mercer did not choose to give up his American citizenship or seek an immigration visa should not be determinative on the question of domicile in view of the other crucial factors which bear out his intentions so clearly. Matter of Bobbin v State Tax Comm. ( 67 AD2d 762 , affd 49 NY2d 846 ) can be distinguished on its facts. Mr. Mercer’s employer’s testimony that Mr. Mercer was chosen for this assignment because, in the opinion of top management, “he was willing to end his working days in England” and “would not, a year later holler to come back” is supportive also of a change of domicile. His subsequent return to New York because of a debilitating stroke which made it physically impossible for him to carry on the challenging assignment in England is hardly indicative of a “willingness to accept transfers in accordance with the wishes of his employer”, as concluded by the majority. His return to New York was dictated by reasons of health and financial necessity. His employer offered him a- less demanding job in New York and, since he was still a relatively young man and not financially independent, reality dictated the return to New York. The petition should be granted and the determination of the commission annulled.