Snipes oral arguments

[Demosthenes]

Actor Wesley Snipes appeals 3 tax convictions, prison sentence to federal court in Georgia
GREG BLUESTEIN
Associated Press Writer
9:59 AM PST, November 20, 2009
ATLANTA (AP) — Wesley Snipes' attorneys asked a federal appeals court Friday to review an "unreasonable" three-year prison sentence for the film star, who was convicted a year ago on federal tax charges.

Attorneys for the star of the "Blade" trilogy and other films also argued the actor should have been granted a hearing to decide whether his trial should have been in New York instead of Florida.

Prosecutors countered that Snipes, 47, had plenty of time to appeal to move the case to New York in a timely manner before he was convicted of three misdemeanor counts of willful failure to file his income tax returns. Besides, they contended, housing records showed he lived in Florida as well as New York.

The three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta issued no immediate decision.

Snipes was sentenced in April 2008 in what was considered a key victory for prosecutors who aggressively pursued the maximum penalty to deter others from trying to obstruct the IRS. They say he made at least $13.8 million for the years in question and owed $2.7 million in back taxes that he refused to pay.

Snipes apologized at the time, calling himself an idealistic artist who was "unschooled in the science of law and finance."

The actor, who is free on bail while he appeals the convictions, was not at the downtown Atlanta courthouse. But his attorneys argued in court filings that the sentence was too harsh and "focused too heavily on deterrence." And in court Friday, they said the trial judge's decision not to move the trial jeopardized Snipes' constitutional rights.

"The right to a correct venue is part and parcel to the right to a jury trial," said his attorney, Peter Goldberger. He said Snipes should have been entitled to a pretrial hearing to show where he lived, "and the evidence would show he lives in New York."

Prosecutors, though, argued that the law is clear when it comes to where trials are to take place, and that Snipes' attorneys were too late in asking for a change.

"Wesley Snipes received a fair trial and a fair sentence," said Patricia Barksdale, an assistant U.S. attorney. "His numerous appeals do not make that sentence erroneous."

[bmielke]

Was his residence in FL just to avoid NY Income taxes? How does that even work if you "live" in two states do you pay income tax in one or the other or both? In Snipes case he probably would have income in one or more other states. I think Al Franken ran into some of these issues when he was running for the senate. But I never quite understood how that works.

[Demosthenes]

Was his residence in FL just to avoid NY Income taxes? How does that even work if you "live" in two states do you pay income tax in one or the other or both? In Snipes case he probably would have income in one or more other states. I think Al Franken ran into some of these issues when he was running for the senate. But I never quite understood how that works.

Snipes had multiple residences (FL, NY, and CA) during the years in question, and while he spent more time in NY and CA, he didn't pay income tax in either of those states, he applied for a FL homestead exemption, he had a FL driver's license, his gun permit was from FL, and in his correspondence with the IRS, he asked for his case to be handled by the FL IRS office. Furthermore, he filed a statement under oath in an unrelated federal civil case declaring that his legal place of residence was in Florida.

[Duke2Earl]

You never really know but that doesn't sound like a very persuasive case to me. I think Mr. Snipes had better pack his toothbrush.

[LPC]

Was his residence in FL just to avoid NY Income taxes? How does that even work if you "live" in two states do you pay income tax in one or the other or both? In Snipes case he probably would have income in one or more other states.

Different states define "resident" different ways for purposes of their income taxes.

New Jersey (and, I believe, California) define residency by the number of days you spend in the state. For NJ, if you have a home in the state and spend more than 183 days in the state, then you're a resident. (NJ will also claim you as a resident if you are "domiciled" in NJ, regardless of how many days you spend in the state. See below.)

Notice that, if you spend time in a third state, you might not be a resident of any state.

Other states equate residence with domicile, which is a more subjective standard. Your domicile is the place you intend to return whenever you are absent. You can have several residences but only one domicile.

But if Snipes earned income while shooting a movie in California, or from a business operating in California, then California can (and probably will) tax him on that income regardless of where he lives.

Anyway, there was more than enough evidence to prove that Snipes considered himself a resident of Florida (i.e., he intended to return there, and so was domiciled in Florida) regardless of how much (or how little) time he spent there.

[Arthur Rubin]

What states consider him a "resident" for the purpose of the state income (or sales) tax is not necessarily relevant to which Federal District Court has personal jurisdiction; in fact, there are some situations where a trust might not have any state income tax even though the trustees, beneficiaries, and administration all occur in different states which have a state income tax. (For example, Indiana taxes a trust (on the basis of residence) only where the administration occurs, and California taxes a trust only on the basis of the residence of the trustees and beneficiaries. Both states will tax a trust on the income due to business income in that state, but that's a source basis.)

I suspect the FL homestead exemption and gun license contains a statement under penalty of perjury that that is his residence, however.

[The Operative]

I suspect the FL homestead exemption and gun license contains a statement under penalty of perjury that that is his residence, however.

The FL homestead exemption form does contain such a statement.

From the homestead exemption application form...

I am a permanent resident of the State of Florida and I own and occupy the property described above. ... Further, under penalties of perjury, I declare that I have read the foregoing application and the facts in it are true.

From the eligibility criteria that is provided with the form...

Every person who has legal or equitable title to real property in the State of Florida and who resides thereon and in good faith makes it his or her permanent home is eligible.

196.012(18) Florida Statutes...

"Permanent residence" means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred.