New York State and City Residency
By Richard W. Goldstein, Esq.
Goldstein Jones LLP
Are You a Resident of New York State or New York City for Income Tax Purposes?
Even if you believe you reside elsewhere, if you are domiciled in or a statutory resident of New York State or city, the New York State Department of Taxation and Finance (the "Department") may claim you are a resident of the city or state for income tax purposes. If the Department claims you are a resident you may be subject to state and city income tax if you fail to provide adequate documentation of where you spend your time. New York resident income taxes are typically higher than New York nonresident income tax. This is especially true for nonresidents that work in New York City because New York City does not impose an income tax on nonresidents.
An individual is a New York resident if one (1) of two (2) conditions is met:
1) If an individual is "domiciled" (see below for the definition of domicile) in New York, such individual is a New York resident.
2) If an individual is not "domiciled" in New York, such individual is a New York resident if s/he both "maintains a permanent place of abode for substantially all of the taxable year" and spends in the aggregate more than 183 days of the taxable year in New York. New York Tax Law § 605(b)(1)(B), New York City Admin Code Section 11-705(b)(1).
New York State and City Residency
The provisions governing New York State and City Residency for personal income taxes are essentially identical. The Department administers both the state and city personal income tax. For purposes of the following discussion references to New York apply equally to the state and the city unless otherwise specified.
Statutory & Regulatory Authority:
The relevant state regulation states that “Domicile in general, is the place an individual intends to be his permanent home – the place to which he intends to return whenever he may be absent NYCRR 105.20(d).
A husband and wife are generally presumed to have the same domicile but can have separate domiciles. In addition, if a husband and wife are both residents and they file a joint federal return, their New York State taxable income is determined jointly. New York Tax Law § 611(b)(4).
Under the case law (interpreting the statutes and regulations) the general rule is that a change in domicile requires intent to establish a new permanent location of residence and additionally the acquisition of a new residence in the new domicile. An existing domicile continues until a new one is acquired, and the burden of proof to show change in domicile rests upon the party alleging the change (see, Matter of New comb’s Estate , 192 NY 238). Where an individual has two homes in different localities the presumption is that the first one acquired remains his legal domicile. (see, Matter of Estate of Gadway , 123 AD2d 83, 85). Generally, a new domicile is acquired when there is a trigger or life changing event (e.g., a new job, retirement, marriage, illness etc.). The mere abandonment of a former residence does not result in a change of domicile. A person can have more than one residence but he can only have one domicile. The New York Court of Appeals measures an individual’s intent to create a new domicile by considering "whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it" ( Matter of Bourne , 181 Misc 238, 41 NYS2d 336, 343, affd 267 AD 876, 47 NYS2d 134, affd 293 NY 785). With regard to an alleged change of domicile, formal declarations have been held to be less persuasive than the informal acts of an individual's "general habit of life" ( Matter of Doman , April 9, 1992 quoting Matter of Trowbridge , 266 NY 283, 289; Matter of Silverman , Tax Appeals Tribunal, June 8, 1989).