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SALT TALK: Change of NY Domicile Successful by Dumping Old Girlfriend; Keeping Old Dog

Wayne Berkowitz CPA, J.D., LL.M. 02.13.2017 | SALT TALK

A recent New York State Tax Appeals Tribunal Decision[1] held that a taxpayer successfully demonstrated, by clear and convincing evidence, a change in domicile from New York City to Dallas, Texas.  The extremely well-reasoned Opinion is notable in recognizing the domicile change occurred through a complex series of events and not simply by one overt act.  Rather than simply reiterating the Tax Department’s own Nonresident Audit Guidelines, (which, despite what an auditor may tell you, are not the law) the Tribunal looked to the precedential jurisprudence and reminded all that a change of domicile is a question of fact, not a question of law.  The circumstances surrounding the changes can vary widely depending on the individual.

The details of the Opinion are way too complex to cover in this short space, but the series of events which evidenced the intent to abandon the old domicile and establish a new one included the termination of a relationship with his long-term girlfriend, changing career goals and circumstances, listing of his $2.4 million New York City apartment, renting a small apartment in Dallas, and culminated with moving his “large, senior dog[2]” to Dallas.

A change of domicile was in fact established despite the facts that the days spent in Texas were only slightly more than the days spent in New York, his historical vacation home was maintained, and he even returned to New York City the year subsequent to the audit period.

The facts and circumstances supporting the taxpayer’s assertions were documented in a number of ways including:

  • The use of affidavits from those in the know (employer, business associates, and friends);
  • An employment agreement demonstrating no geographical restrictions (no requirement to be present at the New York office);
  • Qualitative information regarding time spent in Dallas vs. New York City; as well as
  • An examination of the taxpayer’s conduct (sometimes confused with the Audit Guidelines so-called “secondary factors”) such as utilizing professionals in Dallas, enjoying the social scene in Dallas, joining a gym, and other factors corroborating his habits of life.

A cautious reminder to my readers and clients is in order. We often explain to those planning a domicile change that one of the most important steps to take in “pulling the trigger” on a domicile change that has been creeping over time (For example, the residences in New York and the new chosen domicile may have been in place for many years) is to spend significantly more time in the new domicile than the former domicile. While that may not have happened in the case at hand, many other indicators were also in place. Domicile changes aren’t simply “me too” planning exercises. As the Tribunal confirmed, the circumstances are unique to each individual.

If you have or are planning on changing your domicile and have questions about the possibility of falling into a tax trap, contact me at WBerkowitz@BerdonLLP.com or your Berdon advisor.

[1] Matter of Petition of Gregory Blatt (DTA No. 826504, TAT February 2, 2017)

[2] The New York State Audit Guidelines indicate that the location of your near and dear items is a primary factor to consider in demonstrating a taxpayer’s domicile.  Certainly the taxpayer’s dog was “near and dear” while his old girlfriend was not. 

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