Bill S1901-2011

Provides basis for determining primary residency

Provides that failure to file New York city income tax return shall constitute a prima facie finding that a housing accommodation subject to the emergency housing rent control act is not a person's primary residence as claimed by the delinquent taxpayer and failure to file a state tax return shall constitute a prima facie finding that a housing accommodation subject to the emergency tenant protection act of 1974 is not a person's primary residence.

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  • Jan 14, 2011: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT

Memo

BILL NUMBER:S1901

TITLE OF BILL: An act to amend the administrative code of the city of New York and the emergency tenant protection act of nineteen seventy-four, in relation to determining primary residency

SUMMARY: This bill would amend sections 26-403 (e) (2) (i) (10) and 26-504 (a) (1) (f) of the New York City Administrative Code and the Emergency Tenant Protection Act, McKinney's unconsolidated laws § 8625 (a) (10) to provide that for purposes of determining primary residency for rent control or rent stabilization purposes, the failure to file a New York City or New York State resident income tax return by an individual required by law to file such a return, shall result in a finding that the tenant does not occupy the unit as his or her primary residence. This provision would not apply to tenants who have requested an extension of time for payment of tax or where any other factor exists which would excuse the timely filing of a return.

JUSTIFICATION: Since 1971, premises not occupied as a tenant's primary residence have been exempt from both rent control and rent stabilization. This decision is made by the courts, on a case-by-case basis, yet the statute provides little or no guidance to the courts, faced with making this determination. At present, the non-payment of New York City taxes is simply one factor to be taken into account in a determination of primary residency.

Rent control laws are intended to protect those bona fide residents of New York City from its unusual rental market. Certainly, the payment of New York City taxes should be a very important consideration in the determination of primary residency.

This bill would accomplish this by making the non-payment of New York City taxes sufficient to establish a finding that the tenant does not occupy the unit as his or her primary residence.

FISCAL IMPLICATION: None.

EFFECTIVE DATE: This act shall take effect immediately, with provisions.


Text

STATE OF NEW YORK ________________________________________________________________________ 1901 2011-2012 Regular Sessions IN SENATE January 14, 2011 ___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when printed to be committed to the Committee on Housing, Construction and Community Development AN ACT to amend the administrative code of the city of New York and the emergency tenant protection act of nineteen seventy-four, in relation to determining primary residency THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Clause 10 of subparagraph (i) of paragraph 2 of subdivision e of section 26-403 of the administrative code of the city of New York, as amended by chapter 422 of the laws of 2010, is amended to read as follows: (10) Housing accommodations not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction. For the purposes of determining primary residency, a tenant who is a victim of domestic violence, as defined in section four hundred fifty-nine-a of the social services law, who has left the unit because of such violence, and who asserts an intent to return to the housing accommodation shall be deemed to be occupying the unit as his or her primary residence. FOR PURPOSES OF DETERMINING PRIMARY RESIDENCY, AS USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW YORK CITY RESIDENT INCOME TAX RETURN BY AN INDIVIDUAL REQUIRED BY LAW TO FILE SUCH A RETURN, SHALL RESULT IN A FINDING THAT THE TENANT DOES NOT OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT APPLY TO AN INDIVIDUAL WHO HAS REQUESTED AN EXTENSION OF TIME FOR PAYMENT OF TAX OR WHERE ANY OTHER FACTOR EXISTS WHICH WOULD EXCUSE THE TIMELY FILING OF THE RETURN; PROVIDED FURTHER, THAT THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT RESULT IN A PRESUMPTION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE. No action or proceeding shall be commenced seeking to recover possession on the ground that a housing accommodation
is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given thirty days notice to the tenant of his or her intention to commence such action or proceeding on such grounds. S 2. Subparagraph (f) of paragraph 1 of subdivision a of section 26-504 of the administrative code of the city of New York, as amended by chapter 422 of the laws of 2010, is amended to read as follows: (f) not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction[, provided, however that no]. FOR PURPOSES OF DETERMINING PRIMARY RESIDENCY, AS USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW YORK CITY RESIDENT INCOME TAX RETURN BY AN INDIVIDUAL REQUIRED BY LAW TO FILE SUCH A RETURN, SHALL RESULT IN A FINDING THAT THE TENANT DOES NOT OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT APPLY TO AN INDIVIDUAL WHO HAS REQUESTED AN EXTENSION OF TIME FOR PAYMENT OF TAX OR WHERE ANY OTHER FACTOR EXISTS WHICH WOULD EXCUSE THE TIMELY FILING OF A RETURN; PROVIDED FURTHER, THAT THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT RESULT IN A PRESUMP- TION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE. NO action or proceeding shall be commenced seeking to recover possession on the ground that a housing accommodation is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given thirty days notice to the tenant of his or her inten- tion to commence such action or proceeding on such grounds. For the purposes of determining primary residency, a tenant who is a victim of domestic violence, as defined in section four hundred fifty-nine-a of the social services law, who has left the unit because of such violence, and who asserts an intent to return to the housing accommodation shall be deemed to be occupying the unit as his or her primary residence. For the purposes of this subparagraph where a housing accommodation is rent- ed to a not-for-profit hospital for residential use, affiliated subten- ants authorized to use such accommodations by such hospital shall be deemed to be tenants, or S 3. Paragraph 11 of subdivision a of section 5 of section 4 of chap- ter 576 of the laws of 1974, constituting the emergency tenant protection act of nineteen seventy-four, as amended by chapter 422 of the laws of 2010, is amended to read as follows: (11) housing accommodations which are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction. FOR PURPOSES OF DETER- MINING PRIMARY RESIDENCY, AS USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW YORK STATE RESIDENT INCOME TAX RETURN BY AN INDIVIDUAL REQUIRED BY LAW TO FILE SUCH A RETURN, SHALL RESULT IN A FINDING THAT THE TENANT DOES NOT OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT APPLY TO AN INDIVIDUAL WHO HAS REQUESTED AN EXTENSION OF TIME FOR PAYMENT OF TAX OR WHERE ANY OTHER FACTOR EXISTS WHICH WOULD EXCUSE THE TIMELY FILING OF THE RETURN; PROVIDED FURTHER, THAT THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT RESULT IN A PRESUMPTION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE. For the purposes of determining primary resi- dency, a tenant who is a victim of domestic violence, as defined in section four hundred fifty-nine-a of the social services law, who has left the unit because of such violence, and who asserts an intent to return to the housing accommodation shall be deemed to be occupying the unit as his or her primary residence. For the purposes of this para- graph, where a housing accommodation is rented to a not-for-profit hospital for residential use, affiliated subtenants authorized to use
such accommodations by such hospital shall be deemed to be tenants. No action or proceeding shall be commenced seeking to recover possession on the ground that a housing accommodation is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given thirty days notice to the tenant of his or her intention to commence such action or proceeding on such grounds. S 4. This act shall take effect immediately; provided that the amend- ment to section 26-403 of the city rent and rehabilitation law made by section one of this act shall remain in full force and effect only so long as the public emergency requiring the regulation and control of residential rents and evictions continues, as provided in subdivision 3 of section 1 of the local emergency housing rent control act; and provided further that the amendment to section 26-504 of the rent stabilization law of nineteen hundred sixty-nine made by section two of this act shall expire on the same date as such law expires and shall not affect the expiration of such law as provided under section 26-520 of such law; and provided further that the amendment to section 5 of the emergency tenant protection act of nineteen seventy-four made by section three of this act shall expire on the same date as such act expires and shall not affect the expiration of such act as provided in section 17 of chapter 576 of the laws of 1974, as amended.

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