If an incapacitated Florida resident is moved into a New York nursing home, does that make her a New York resident for personal income tax and estate tax purposes?

Plain-English summary

Rosemary F. Furman was born in New York City but has been domiciled in Florida since age 15, living in Miami since 1981 with Florida property, bank account, driver's license, car registration, and voter registration. She and her husband own a New York City apartment they used on occasion (plus interests in two others with their New York daughter), but she had no active involvement in New York. She is now incompetent from Alzheimer's disease and needs nursing-home care; her husband was weighing facilities in both Florida and New York. He asked whether placing her in a New York nursing home would make her a New York resident for personal income tax and estate tax.

The answer: no, for both taxes.

• Income tax residency has two routes (Tax Law § 605(b)(1); 20 NYCRR 105.20): being domiciled in New York, or — if not domiciled — keeping a permanent place of abode in New York for substantially all the year and spending more than 183 days in the state.
• The couple's NYC apartment counts as a permanent place of abode. But under Mae LaBue (TSB-A-91(10)I) and Stranahan v. NYS Tax Comm., days a person is confined in a medical or nursing facility due to physical or mental incapacity do not count toward the 183-day rule, and someone who is incapacitated cannot form the intent to change domicile. Her presence would be due to incapacity, not choice.
• So admission to a New York nursing home would not make her a New York resident for income tax — the facility days simply don't count.
• Estate tax turns on domicile: § 952(a) taxes the New York estate of a decedent who was a "resident" — meaning domiciliary (Estate of Mullins). Under Estate of Rottenberg, a person who enters a facility for treatment without the mental capacity to change domicile does not acquire a new domicile. So it would not make her a New York resident for estate tax either.

What this means for you

Being placed in a New York care facility does not, by itself, turn an out-of-state resident into a New York taxpayer. New York law protects people whose presence in the state is the result of incapacity rather than choice. For the income tax 183-day test, days spent confined in a hospital or nursing home for treatment of an illness are not counted; for both income and estate tax, a person who lacks the mental capacity to intend a permanent move cannot change domicile to New York.

Owning a New York home is not the deciding factor. The Furmans' NYC apartment was a "permanent place of abode," which is one of the two ingredients of statutory (non-domicile) residency — but the day-count and capacity rules meant it didn't produce New York residency. Domicile is about intent to make New York a permanent home, and it doesn't shift with an involuntary medical placement.

This is a common elder-care planning point. Families moving an incapacitated parent or spouse to a New York facility to be near relatives or for better care can generally do so without converting the person into a New York income- or estate-tax resident — provided the move is driven by the care need and the person cannot form domiciliary intent. Keep records showing the out-of-state domicile and the medical reason for the New York stay, and get advice for any facts that differ from these.

Common questions

Q: Will moving my incapacitated parent to a New York nursing home make them a New York income-tax resident?
A: Generally no. Days confined in the facility due to incapacity don't count toward the 183-day rule, and an incapacitated person can't form the intent to change domicile (Mae LaBue; Stranahan).

Q: We own a New York apartment. Doesn't that create residency?
A: A New York home can be a "permanent place of abode," but statutory residency also requires spending more than 183 countable days in New York. Facility days spent because of incapacity are not counted, so the abode alone doesn't make the person a resident.

Q: What about New York estate tax?
A: New York estate tax residency means domicile. A person who enters a facility for treatment without the mental capacity to change domicile does not become a New York domiciliary (Estate of Rottenberg), so the estate would not be taxed as a resident's estate.

Q: Could New York still tax anything at death?
A: New York can tax a nonresident decedent's real and tangible personal property with an actual New York situs under Tax Law § 960(a); that is separate from being taxed as a resident/domiciliary under § 952(a).

Citations and references

Statutes and regulations:

• Tax Law § 605(b)(1) — definition of resident individual for personal income tax
• 20 NYCRR 105.20 — Personal Income Tax Regulations: domicile, permanent place of abode, 183-day rule, and day-counting
• Tax Law § 952(a) — New York estate tax on the estate of a resident/domiciliary decedent
• Tax Law § 960(a) — estate tax on a nonresident decedent's real and tangible personal property with a New York situs

Cases and prior opinions cited: Mae LaBue, TSB-A-91(10)I (Dec. 24, 1991); Stranahan v. NYS Tax Comm., 68 AD2d 250; Estate of John Edward Mullins, 189 Misc 438; Estate of Sadie Rottenberg, 19 Misc 2d 202.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/multitax/a06_6i_4m.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-06(6)I
Income Tax
TSB-A-06(4)M
Estate Tax
August 28, 2006

Office of Tax Policy Analysis
Technical Services Division
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. Z060130A

On January 30, 2006, a Petition for Advisory Opinion was received from Richard I.
Furman, c/o Mark David Rozen, Three Grove Isle, Apt. 901, Miami, Florida 33133.
The issue raised by Petitioner, Richard I. Furman, is whether the admittance of
Petitioner’s wife, Rosemary F. Furman, to a nursing home in New York State would cause
Mrs. Furman to be considered a resident of New York for personal income tax and estate tax
purposes.
Petitioner submits the following facts as the basis for this Advisory Opinion.
Rosemary F. Furman was born in New York City. She has been domiciled in Florida
since she was 15 years old. She currently resides in Miami, Florida, where she has lived since
1981. Mrs. Furman has owned property and maintained a savings account in Florida. Prior to
her illness, Mrs. Furman maintained a Florida driver’s license and her vehicles were registered in
Florida. She was registered to vote in Florida. In addition, she belonged to various social clubs
and organizations in Florida.
Rosemary F. Furman’s immediate family consists of her husband (Petitioner), who lives
with her in Florida; a daughter who lives in New York; and another daughter who resides in
Connecticut. Mrs. Furman and Petitioner own an apartment in New York City, which they have
used on occasion. They also own two apartments together with their daughter who lives in
New York. Mrs. Furman has no active involvement in New York.
In the late 1990s, Mrs. Furman’s health began to decline and she was diagnosed with an
early stage of Alzheimer’s disease. At the present time, Mrs. Furman is incompetent, in need of
constant medical supervision, and needs to be placed in a nursing home. Petitioner is
considering various nursing facilities located in Florida and New York.
Applicable law and regulations
Section 605(b)(1) of the Tax Law provides, in part:
Resident individual. A resident individual means an individual:
(A) who is domiciled in this state, unless (i) he maintains no permanent place of
abode in this state, maintains a permanent place of abode elsewhere . . . or

-2­
TSB-A-06(6)I
Income Tax
TSB-A-06(4)M
Estate Tax
August 28, 2006

(B) who is not domiciled in this state but maintains a permanent place of abode in
this state and spends in the aggregate more than one hundred eighty-three days of the
taxable year in this state, unless such individual is in active service in the armed forces of
the United States.
Section 952(a) of the Tax Law provides:
A tax is hereby imposed on the transfer of the New York estate by every deceased
individual who at his or her death was a resident of New York state. The tax imposed by
this subsection shall be an amount equal to the maximum amount allowable against the
federal estate tax as a credit for state death taxes under section two thousand eleven of the
internal revenue code.
Section 960(a) of the Tax Law provides:
General. A tax is hereby imposed on the transfer, from any deceased individual
who at his death was not a resident of New York state, of real and tangible personal
property having an actual situs in New York state and either (i) includible in his federal
gross estate or (ii) which would be includible in his New York gross estate pursuant to
section nine hundred fifty-seven (relating to certain limited powers of appointment) if he
were a resident of New York state.
Section 105.20 of the Personal Income Tax Regulations (Regulations) defines a resident
individual and provides, in part:
(a) General. An individual may be a resident of New York State for personal
income tax purposes, and taxable as a resident, even though such individual would not be
deemed a resident for other purposes. As used in this Subchapter, the term resident
individual includes:
(1) all persons domiciled in New York State, subject to the exceptions set forth in
subdivision (b) of this section; and
(2) any individual (other than an individual in active service in the Armed Forces
of the United States) who is not domiciled in New York State, but who maintains a
permanent place of abode for substantially all of the taxable year (generally, the entire
taxable year disregarding small portions of such year) in New York State and spends in
the aggregate more than 183 days of the taxable year in New York State.
*

*

*

-3­
TSB-A-06(6)I
Income Tax
TSB-A-06(4)M
Estate Tax
August 28, 2006

(c) Rules for days within and without New York State. In counting the number of
days spent within and without New York State, presence within New York State for any
part of a calendar day constitutes a day spent within New York State, except that such
presence within New York State may be disregarded if such presence is solely for the
purpose of boarding a plane, ship, train or bus for travel to a destination outside
New York State, or while traveling through New York State to a destination outside
New York State. Any person domiciled outside New York State who maintains a
permanent place of abode within New York State during any taxable year, and claims to
be a nonresident, must keep and have available for examination by the Department of
Taxation and Finance adequate records to substantiate the fact that such person did not
spend more than 183 days of such taxable year within New York State.
(d) Domicile. (1) Domicile, in general, is the place which an individual intends to
be such individual’s permanent home - the place to which such individual intends to
return whenever such individual may be absent.
*

*

*

(4) A person can have only one domicile. If a person has two or more homes, such
person’s domicile is the one which such person regards and uses as such person’s
permanent home. In determining such person’s intentions in this matter, the length of
time customarily spent at each location is important but not necessarily conclusive. It
should be noted however, as provided by paragraph (2) of subdivision (a) of this section,
a person who maintains a permanent place of abode for substantially all of the taxable
year in New York State and spends more than 183 days of the taxable year in New York
State is taxable as a resident even though such person may be domiciled elsewhere.
*

*

*

(e) Permanent place of abode. (1) A permanent place of abode means a dwelling
place permanently maintained by the taxpayer, whether or not owned by such taxpayer,
and will generally include a dwelling place owned or leased by such taxpayer’s spouse.
However, a mere camp or cottage, which is suitable and used only for vacations, is not a
permanent place of abode. Furthermore, a barracks or any construction which does not
contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing,
etc., will generally not be deemed a permanent place of abode. Also, a place of abode,
whether in New York State or elsewhere, is not deemed permanent if it is maintained
only during a temporary stay for the accomplishment of a particular purpose. . . .

-4­
TSB-A-06(6)I
Income Tax
TSB-A-06(4)M
Estate Tax
August 28, 2006

Opinion
To be considered a resident of New York State pursuant to section 605(b)(1) of the Tax
Law and section 105.20(a) of the Regulations, an individual must be domiciled in New York
State or, if not domiciled in New York State, an individual must maintain a permanent place of
abode in New York State for substantially all of the taxable year and spend in the aggregate more
than 183 days of the taxable year in New York State.
In Mae LaBue, Adv Op, Comm, T&F, December 24, 1991, TSB-A-91(10)I, the petitioner
was domiciled in New Jersey prior to her admittance to a nursing home in New York State where
it was believed that she would spend the rest of her life. The petitioner was admitted to the
nursing home because she was unable to perform menial tasks and she needed constant nursing
care, including the administering of medication by a nurse. It was held for personal income tax
purposes that the petitioner did not intend to abandon her former domicile and acquire a new
domicile. Her presence in New York State was not the result of her own intent and decision but
due to a physical or mental incapacity. Therefore, she remained a domiciliary of New Jersey
during the period of time she was in the nursing home in New York. It was further held that, in
determining whether she was a resident of New York, any day spent in such facility did not
count as a day in New York for purposes of the 183-day rule.
In Stranahan v NYS Tax Comm, 68 AD 2d 250, it was held that when a nondomiciliary
who maintained an apartment in New York City sought treatment in New York State for a
serious illness, the time spent confined to a medical facility for the treatment of such illness
should not have been counted in determining whether the nondomiciliary was a resident of
New York State for personal income tax purposes.
The apartment owned and occasionally used by Petitioner and Mrs. Furman in New York
City is considered a permanent place of abode maintained in New York State for substantially all
of the taxable year. However, following Mae LaBue, supra, and Stranahan, supra, the
admittance of Petitioner’s wife, Rosemary F. Furman, to a nursing home in New York State
would not cause Mrs. Furman to be considered a resident of New York State for personal income
tax purposes since any day spent in such facility would not count for purposes of the 183-day
rule.
For New York estate tax purposes, a tax is imposed by section 952(a) of the Tax Law on
the transfer of the New York estate by every deceased individual who at his or her death was a
resident of New York State. For purposes of section 952(a), the term resident is intended to mean
domiciliary (see Estate of John Edward Mullins, 189 Misc 438). In Estate of Sadie Rottenberg,
Deceased, 19 Misc 2d 202, the court held that a decedent who entered a hospital for purposes of
medical treatment and care did not possess sufficient mental capacity to effectuate a change of
domicile either at the time of admission or afterwards. Accordingly, the admittance of

-5­
TSB-A-06(6)I
Income Tax
TSB-A-06(4)M
Estate Tax
August 28, 2006

Petitioner’s wife, Rosemary F. Furman, to a nursing home in New York State would not cause
Mrs. Furman to be considered a resident of New York for estate tax purposes.

DATED: August 28, 2006

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Technical Services Division

The opinions expressed in Advisory Opinions are
limited to the facts set forth therein.