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May052020
General Overview of the Factors and Considerations in Terminating a New York City Domicile and Establishing a New Domicile only in New York State

Wayne K. Berkowitz CPA, J.D., LL.M.

5.5.20 | Client Alert – COVID-19 Update

Domicile is generally defined as the place that an individual intends to be their permanent home – the place to which an individual intends to return whenever absent. Once a taxpayer is domiciled in a jurisdiction, she retains that domicile until she acquires a new one elsewhere. Accordingly, New York law requires that the taxpayer prove by clear and convincing evidence that she abandoned her New York domicile and established a new domicile elsewhere. New York City law is identical to that of New York State.

Due to its subjective nature, determining where one is domiciled involves a fact-intensive analysis. This analysis often leads to confused and conflicting determinations within and amongst the taxing jurisdictions. However, the following outlines the factors considered most important by New York State and City in making a domicile determination.

NEW YORK STATE AUDIT GUIDELINES

The New York State Audit Guidelines (“guidelines”) discuss five primary factors, and eight other factors to be examined in determining a taxpayer’s domicile. The five primary factors are as follows:

  • Maintenance of a home
    • Continuing to own one’s home in New York City is indicative of a New York City domicile not being abandoned.
  • Active business involvement
    • Auditors will carefully review a taxpayer’s active business involvement in New York City businesses. Management of a New York City business, even if performed outside the City, is a strong indication of continuing New York City ties.
  • Time spent in New York City
    • Auditors will closely examine the time a taxpayer spends in New York City in making a domicile determination. If more time is spent in New York City than in other locations, then there is an indication that the taxpayer has not broken her ties with New York City. Taxpayers should maintain detailed diaries supported by third party documentation such as canceled checks, credit card receipts and phone bills.
  • Location of “near and dear” items
    • Auditors will examine the location of items of importance or sentimental value to the taxpayer, such as personal items, art, book or coin collections, and family photographs. Accordingly, continuing to possess one’s “near and dear” items inside of New York City is an indication of a lack of intent to change domicile.
  • Location of family
    • Family connections are the final primary factor. Family is generally defined as the spouse and minor children however; this definition is not exclusive and other situations should be considered if appropriate.

No single factor is determinative. Auditors are instructed to evaluate all the primary factors and determine which point towards New York City domicile, which are neutral, and which point towards domicile outside the City.

OTHER FACTORS TO DETERMINE DOMICILE

When domicile cannot be clearly determined by examining the primary factors, the auditor will examine the so called “other factors”. These other factors include:

  • The address at which the taxpayer receives her bills, bank statements and other correspondence
    • All bills, magazine subscriptions, bank accounts and other correspondence should be directed outside the former New York City domicile to the New York State address where the taxpayer resides.
  • The location of safe deposit boxes
    • All safe deposit boxes in New York City should preferably be moved.
  • Examination of where the taxpayer’s car, boats and airplanes are registered
    • Any vehicles registrations in New York City should be terminated and registered outside of New York City. The address on any New York driver’s license should be changed to the new domicile outside of the City.
  • Location of where the taxpayer is registered to vote
    • The board of elections in New York City should be notified to remove your name from the voting rolls in New York City. Immediately, you should register to vote at your new domicile and do so as soon as possible.
  • Possession of Manhattan Parking Tax Exemption
    • Any exemption should be revoked immediately.
  • The nature and level of telephone activity by location
    • Where the taxpayer still maintains a New York City residence, auditors are likely to scrutinize telephone bills to examine usage patterns.
  • Declarations in wills and other legal documents
    • Legal documents should be changed to indicate your new domicile. Documents should be updated to reflect this change.

It is important to note that when a New York City domiciliary intends to establish a new domicile, the burden of proof is on the individual to show a clear abandonment of the New York City domicile together with the establishment of a new domicile. Therefore, the taxpayer must be able to prove that the primary factors sway in her direction or that at a minimum they go either way and that the other factors demonstrate the establishment of a new domicile.

It is crucial to note that even if a change of New York City domicile is established, where a taxpayer continues to maintain a permanent place of abode in New York City and is present in New York City for more than 183 days, the taxpayer will be taxed as a New York City resident (i.e., on worldwide income). Accordingly, if a New York City residence is maintained, or acquired at any point in the future, it is imperative that a careful record be kept of your presence both within and outside of New York City. The taxpayer bears the burden of proving every day he was present outside of New York City.

Therefore, it is recommended that a diary be kept noting your location, and supported by such outside documentation as charge receipts, airline tickets or the like.

For more information on this topic or any other matter related to the COVID-19 pandemic, please contact your Berdon advisor and visit Berdon’s COVID-19 Information Center.

Berdon LLP New York Accountants

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