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Retroactive Tax Credit Restrictions Violated Due Process

The Court of Appeals, in a full-fledged opinion by Chief Judge Lippman, determined that the retroactive changes in the Empire Zones Program (restricting the availability of tax credits) did not, as the appellate divisions held, violate the Takings Clause, but did violate the Due Process Clause:  The Court wrote:

The purported taking here is plaintiffs’ obligation to pay tax to the State in the absence of a valid tax credit. However, “[t]he mere imposition of an obligation to pay money . . . does not give rise to a claim under the Takings Clause of the Fifth Amendment” …. Federal courts have held that “[f]or retroactive taxation to be a taking, it must be ‘so arbitrary as to constrain to the conclusion that it was not the exertion of taxation'”…. The retroactive tax liability imposed in the present case cannot be characterized as so flagrant as to constitute the confiscation of property under the Takings Clause. Plaintiffs had no guarantee that they would ever recoup their business investments through the receipt of tax credits, and the New York Constitution provides that tax exemptions are freely repealable (NY Const, art XVI, § 1).  *  *  *

We now turn to that other question: whether plaintiffs’ due process rights were infringed by the statute utilizing the three factors articulated in Replan. In terms of “the taxpayer’s forewarning of a change in the legislation and the reasonableness of his reliance on the old law” (Replan, 70 NY2d at 456), the plaintiffs had no warning and no opportunity at anytime in 2008 to alter their behavior in anticipation of the impact of the 2009 Amendments. * * *The second factor, the length of the period of retroactivity, also benefits plaintiffs. * * * Regardless of whether the period of retroactivity is deemed to span 16 or 32 months, the length of retroactivity should be considered excessive and weighs against the State. * * *   On the third factor, dispositive in this case, the State fails to set forth a valid public purpose for the retroactive application of the 2009 Amendments. The legislature did not have an important public purpose to make the law retroactive.  James Square Associates LP et al v Mullen …, Nos 87, 88, 89, 90, 91, CtApp, 6-4-13

 

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