Note: This is the second in a series of articles that will cover strategies for changing residency, surviving an audit, and challenging a negative result.

New York State is arguably the most onerous income tax jurisdiction in the country. This has led many New York residents to change their residency to reduce their tax burden on income not effectively connected to New York. This includes business income from around the United States and the world, as well as investment income in retirement.  However, as New York’s income tax base erodes with residents fleeing to Florida, New York intends to keep high-income earners paying state taxes on as much income as possible. There are two tests under the New York State Tax Law to determine an individual’s residency: domicile and statutory residency.  This article will address the domicile test. (See the May 22, 2024 post, which provides an introduction to this topic.)

An individual’s domicile is the place where that individual resides until that individual has proven that the place of residence has permanently changed to another state and there is no intention to return to New York. The Appellate Division has stated that “to create a change of domicile, both the intention to make a new location a fixed and permanent home and actual residence at that location…“ must be demonstrated by the taxpayer.  Matter of Minsky v. Tully, 78 A.D.2d 955 (N.Y. 3d Dep’t 1979). Thus, the individual must show both intent to move and have an actual residence in the new state.

As discussed in the previous post, there are five primary factors and a number of secondary factors that the Department of Tax uses to determine domicile. These primary factors are: (1) Home, (2) Active Business Involvement, (3) Time, (4) Items Near and Dear, and (5) Family Connections.

1. Home

“Home” is the place a person intends to make their primary residence.  If no place of abode is available in New York, then this factor is decidedly in favor of domicile outside New York.  However, if there is a place of abode in New York and at least one outside New York, an auditor will compare the use of multiple homes under the following factors: (a) size of residence; (b) value of residence; (c) nature of use; and (d) other aspects of a home.  Auditors often focus on the one factor that demonstrates residency in New York.   For example, if the real property assessment on the New York house is higher than the assessment on a Florida house, then the auditor may find this to be determinative that the New York house remains the “home” of the individual.

2. Time

The “time” test focuses on a change in patterns more than just the number of days inside and outside of New York.   If an individual does not spend more time in their Florida home than in any other location, this raises red flags.  Also, a one-day advantage out-of-state does not necessarily tip the scales in favor of the new state.  

As with a day count analysis, excellent documentation, including credit/debit card receipts, tollbooth receipts, plane tickets, phone records, and other paperwork are generally required to prove day-to-day location for every single day in an audit period.

3. Active Business Involvement

Individuals that have established a business or a career in New York State and continue to take an active role operating that business from outside New York, this favors domicile is in New York State.  Even after retirement, maintaining close business connections within New York can be a factor in retaining New York domicile.  Under audit, an individual will want to show that decision-making in the business has been ceded to others.

4. Items Near and Dear

Because treasured items are more likely to be kept at home, auditors will look at the location of items near and dear to the individual.  These near and dear items are the things of value to the individual, whether the value is monetary or sentimental.  This category of items would include items such as family heirlooms, photo albums, hobbies, and the like.

5. Family

This final factor is supposed to be a sort of tie-breaker of the other four.  Auditors should consider only where a taxpayer’s spouse and minor children live.  Occasionally, however, the location of other family members like spouses, siblings, and parents, especially those family members in need of care, may be determinative in a change of domicile.

Secondary Factors

If the above factors are not determinative of domicile, an auditor may look to the secondary factors; however, these are often given little to no weight by an auditor.  The secondary factors include:

• State issuing the driver’s license;
• State of voter registration;
• State in which vehicles are registered;
• Place of bank accounts;
• Primary houses of worship;
• Club memberships; and
• Place of library card.

An individual should not rely on these secondary factors to demonstrate a change in residency.

Summary

To change residency from New York to another state, an individual would need to first prove that they intend to have changed the place of domicile to that other state.  Where the individual maintains a place of abode in New York, the auditor will consider the five primary factors in making this determination.  To be successful in changing domicile, the individual will need to clearly demonstrate both the intention to change domicile and the actual use of the new residence.

Scott Shimick is a Partner at Whiteman Osterman & Hanna, LLP and the leader of the firm’s Federal and State Taxation Practice Group.  You can contact him at (518) 487-7678 or by email at sshimick@woh.com.

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