By Sandy Weiner, J.D.
California Editor

At its final hearing of FTB appeals, the Board ruled unanimously in favor of taxpayer Keyshawn Johnson, ending a residency audit that had lasted for over 15 years.¹ At stake was over $2.1 million in proposed assessments and an additional $80,000 in penalties.

The ruling was a big upset for the FTB who argued that Johnson was always a California domiciliary as evidenced by his numerous homes and business connections in California. The FTB claimed his excursions to the states in which he played, including New York, Florida, and Texas were only for temporary and transitory purposes during his annual "five to six month gig" during football season.

Johnson's attorney contended that the FTB's audit was shoddy and sloppy, citing numerous examples where the FTB claimed that Johnson was present in California based on financial transaction records, even though these days included days in which he was playing games in New York or Florida. He argued that Keyshawn's California homes and businesses were only investments.

Johnson also gave the FTB a lesson on what a professional athlete's year-long schedule looks like, including attending mini camps, training camps, and in Johnson's case, postseason playoffs, Super Bowl games, and Pro Bowl games. He essentially argued that anyone who thinks a professional athlete is a "seasonal employee" has no real understanding of what it takes to play in the big leagues.

Kathryn Zdan, EA
Editorial Director

In late 2017, a California court ruled that Yelp, Inc. had to turn over documents to help identify an anonymous user who posted a negative review of an accountant on yelp.com.¹

"Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. [The] Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same."

The accountant claimed the review was false and defamatory, and while he suspected he knew who posted it, he needed to be sure in order to prove he was being defamed so that he could accurately describe his experience with that particular client.

The review was analyzed by the court line by line, and they found that the implication of each "fact" stated in the review would amount to defamation if it were instead found to be false. For example, regarding the accountant charging more than originally quoted, he claimed that the client portrayed her tax return as being "simple" when in fact it was much more complicated, so the price went up.

While Yelp had to turn over documents that may confirm the reviewer's identity in this case, Yelp and sites like it that allow users to provide reviews can still assert First Amendment rights on behalf of users. Similar situations in the future will be addressed on a case-by-case basis.

Diane Fuller
Contributing Editor

We hear a lot about people leaving California because of the high cost of living and burdensome taxes. One could reasonably assume these drawbacks would keep people from migrating into the state.

However, according to data compiled by United Van Lines that tracks annual interstate migration, California ranks #27 on inbound migration as a percent of total moves in 2017. That's not too bad in light of California's highly publicized negatives.¹

The data does not consider why people make a move — just the fact that they do it. Obvious reasons include job changes and families, but taxes relate to migration as well.

In comparison, Vermont is #1 (mmm … maple syrup), Oregon is #2 (premier foodie scene in Portland), Texas is #15 (no state income tax … a good strategy), and New York is #47 (no one wants to be a part of it).

The lower tax argument doesn't work for Vermont, where income tax rates are right up there with California. And Vermont has only 58 clear sunny days compared to California's 146. Some of those sunny days are probably when the low temperature hits about 5 degrees. You don't even need to freeze your Ben & Jerry's. Peak foliage season in Vermont lasts only about four weeks.

California's peak season is 365 days a year. It's a good thing we're ranked #27. We don't need more people and cars impacting California's extraordinary positives: miles of staggeringly beautiful coastline, majestic redwoods, snow-capped mountains, and dramatic desert landscapes.