Classic Realty LLC v. New York State Division of Housing & Community Renewal

OPINION OF THE COURT Tom, J.P. This case brings up for review the question whether a landlord under the factual circumstances of this case, having made an initial successful application for luxury decontrol, is entitled to a further inquiry when a tenant thereafter amends a previously submitted tax return which is then administratively certified to qualify the tenant to remain rent stabilized. Petitioner owns the cooperative shares allocated to the proprietary lease for apartment 9B located at 1000 Park Avenue in Manhattan. Nonparty Judith Lacher is the tenant of record for apartment 9B and her husband and 13-year-old son reside with her. The proceeding was commenced on June 4, 1998, when petitioner filed a petition for luxury deregulation. The two years for which income verification had to be provided are 1996 and 1997. The tax return for 1997 was not originally submitted by the tenant insofar as the tenant-taxpayers were on extension, an explanation that is not controverted, which the New York State Division of Housing and Community Renewal (DHCR) credited and which is not implausible in view of the time periods involved. Upon request by DHCR, the tenants had timely submitted their income certification form, explaining why no return was yet available for 1997, declaring that their child had had no income, and providing other requested information. DHCR forwarded the information to the New York State Department of Taxation and Finance (DTF), which is authorized to verify income in this regard, but not to provide, or require, additional tax information. When DTF responded to DHCR that the tenants’ income exceeded $175,000 for 1996 and 1997, DHCR contacted the tenants to provide them an opportunity to comment in response to a proposed deregulation of the apartment. The tenants responded that an amended return had been filed which would reflect that their income for the subject years did not exceed the $175,000 threshold. Subsequently, DTF undertook another verification search, including the amended return, and DTF then verified that the tenants’ income during the relevant time period did not exceed $175,000. The landlord now corresponded with DHCR, suggesting that the filing of an amended return might have been a subterfuge to employ income shifting as to the subject years to make it appear that each annual income had not exceeded [207] $175,000. The landlord then also suggested that verification of prior years be reopened so as to inquire into whether income was shifted even further back in time so as to reduce taxable income in 1996 and 1997. The landlord also noted that the DTF verification did not indicate that the child had filed a tax return and speculated that the child’s income was being shielded, but it is presently apparent, as DHCR explains, that a DHCR clerical error caused this confusion, and that the parents explained that the 13-year-old child had had no income. Although the landlord strives to find chicanery in that regard, there is no reason to doubt DHCR’s concession of an inadvertent glitch. DHCR contends that the tenants have consistently provided all relevant information, that they never provided contradictory information, that their information was consistently accurate, that it was consistently provided in a timely manner, and that petitioner has provided no basis for its conjecture regarding income shifting to prior years. DHCR has declined to reopen verification of prior years’ income, noting the absence of any reason or, under these circumstances, authority, to do so, there being no demonstration of fraud, irregularity or illegality. DHCR has also declined to hold a hearing to inquire into the explanation for the tenants filing an amended return, there being no demonstration by the landlord of wrongdoing. Upon judicial review of this determination, the motion court upheld the determination, finding that the petitioner landlord was motivated by mere speculation, and that DHCR’s decision was not arbitrary, capricious or an abuse of discretion. Petitioner appeals. Initially, the Rent Administrator clearly had discretion to verify the tenants’ income a second time with the Tax Department when the tenants responded to her Notice of Proposed Deregulation and Opportunity to Comment by advising of their filing of an amended return for one of the two years under review. No other conclusion is possible given the explicitly provisional, tentative nature of the proceeding at the comment stage (Administrative Code of City of NY § 26-504.3 [c] [2]). Indeed, the second inquiry was entirely consistent with DHCR’s general procedures set out in the Rent Stabilization Code (9 NYCRR 2507.5 [b], [c], [g]), and nothing in the luxury decontrol statute itself (Administrative Code § 26-504.1 et seq.) suggests that such an inquiry was prohibited (cf. Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359, 373 [1999]). Nor does it avail petitioner to assert that the tenants’ amended tax return caused their [208] income in earlier years to exceed $175,000, since, in a luxury decontrol proceeding, the only income information required is whether the $175,000 threshold was exceeded in each of the two years under review (Administrative Code § 26-504.3 [b]; Tax Law § 171-b [3] [b]; see Matter of Giffuni Bros. v New York State Div. of Hous. & Community Renewal, 293 AD2d 402 [2002], lv denied 99 NY2d 505 [2003]). The dissent, though, contends that it was arbitrary and capricious for DHCR to determine that the tenants’ income was below the monetary threshold for deregulation on the basis of the tenants’ amended tax return, and to decline to make further investigation as requested by petitioner in this regard. Petitioner continues to speculate that the tenants had employed an income shifting device to ostensibly lower the family income during the relevant time periods. As a consequence of this speculation, petitioner contends that the verification for prior years, to which such income might have been shifted, must be reopened to ascertain whether, in fact, this occurred. Petitioner does not argue that the verification by DTF was inaccurate. Nor does the dissent suggest that DTF’s own verification as to annual income during the relevant years was inaccurate. There is no indication in the record that the tenants’ tax returns, as contrasted with the verification of such, were inaccurate such as would subject the tenants to severe sanctions and penalties for underreporting income, filing false returns, or filing other false documentation in connection with the DHCR proceeding. Nor is there any indication that the tenants have been less than forthright in providing requested information in a timely manner. Nor is the fact of an amended return for any particular year an indication of anything in particular: since amendments to tax returns may reflect increases in claimed income as well as decreases, or even just different allocations of income and deductions, the fact of an amended return does not, logically, trigger a more extensive inquiry into the income identified for the given year. In any event, the verification procedure is intended to do just that — verify a given year’s income. The tenants’ amended tax returns were accepted by DTF and can be deemed to be proper amendments (cf. Giffuni Bros., 293 AD2d at 403). As noted, petitioner has not shown fraud, illegality or an irregularity in this regard. Rather, we must presume that the verification provided by DTF is accurate. Yet, the logic of subjecting the amended return to further investigation necessarily conveys that a basis exists to conclude that there is an [209] inaccuracy either in the tax return or in the verification procedure. Petitioner contends that a hearing is necessary to ensure that the amendments were justified, a position adopted by the dissent. Yet that is the task of DTF in the first instance. Nothing would realistically be gained by simply requiring yet another verification, a point aptly made by DHCR. Moreover, even if a hearing would be held, DHCR’s power to examine tax issues would have been limited. DHCR necessarily would rely on information provided by DTF, but DTF is only authorized to disclose to DHCR whether the tenants’ household income exceeded $175,000, and, as noted above, “[n]o other information regarding the annual income of such persons shall be provided” (Tax Law § 171-b [3] [b]). Nor are the tenants required to provide “any information regarding their income except that which is requested on the [income certification] form” (Administrative Code § 26-403.1 [b]), so that, procedurally, petitioner’s goal is not achievable in this manner. We have noted elsewhere the degree to which legislation has thus circumscribed DHCR (as well as judicial) review of the tax information to be included (see Matter of Nestor v New York State Div. of Hous. & Community Renewal, 257 AD2d 395 [1999], lv denied 93 NY2d 982 [1999]). Actual income is not subject to disclosure (Tax Law § 697 [e]; § 171-b [3] [b]; Administrative Code § 26-504.3 [b]). To require the submission of additional information, aside from just the verification of annual income, would transgress the policy goal of ascertaining whether the monetary threshold is exceeded with a minimum of intrusion on taxpayers’ privacy. Insofar as the record discloses no evidence of fraud, illegality or irregularities justifying such a proceeding, DHCR acted rationally and we find no basis to annul its determination. It cannot be said that DHCR acted arbitrarily and capriciously in declining to conduct a hearing, a determination, in any event, well within its exercise of discretion. Hence, in accordance with standard canons of judicial review of administrative determinations, we uphold DHCR’s determination insofar as it acted rationally and in accordance with relevant law, and we decline to substitute our judgment for that of the agency in this regard (see Matter of Ista Mgt. v State Div. of Hous. & Community Renewal, 161 AD2d 424, 426 [1990]). Accordingly, the judgment of the Supreme Court, New York County (Eileen Bransten, J.), entered May 30, 2001, dismissing petitioner landlord’s application to annul respondent Division of Housing and Community Renewal’s determination [210] denying petitioner’s application for a high income deregulation order, should be affirmed, without costs.