The underlying tone of all the arguments the Division sets forth is that, during the years in dispute, petitioners maintained ties to New York which evince a clear lack of intent to change domicile. Our affirmance of the Administrative Law Judge is based upon several aspects of his determination. First, we disagree with the Division that the finding that Paul A. Burke was not actively involved in the affairs of his New York business interests is not a rational interpretation of the evidence. The Division argues that given the magnitude of the rental operation managed by Burke Rental Corporation that it was unreasonable for the Administrative Law Judge to believe Mr. Burke's testimony that his telephone calls to New York were mostly about personal financial affairs. The Division contends that these telephone calls were about the business and that these telephone calls indicate Mr. Burke's role in the business was not passive, and that Mr. Burke took a more active role when he is in New York.
Several factors support the Administrative Law Judge's conclusion.
The most important factor is that the Administrative Law Judge determined that Mr. Burke's explanations as to the content of the telephone calls and the nature of his involvement in the business were credible after hearing the testimony and evaluating its reasonableness. We do not find it significant that petitioners indicated that they were actively involved in the high rise housing partnerships on their tax returns for the years in question. As stated in the facts, petitioners claim that this was a clerical error from which they received no tax benefit. The Division has not disputed the latter claim. In addition, there is no sense from the description of the business, as finally established, that active involvement by Mr. Burke was required, either on an overall basis or during the part of the year when the Burkes were physically present in New York.