New York Advisory Opinion TSB-A-83 (3)I: Does a member of the U.S. armed forces become a New York resident for personal income tax purposes just because military orders station him in New York?

Plain-English summary

Robert T. Muhlenbruch, domiciled in Illinois when he entered military service in 1965, left the service in 1973 and rented an apartment in New York, taking a job he described as indefinite - he intended to stay only if the job worked out. It didn't, and after about three months he decided to re-enter military service, residing briefly in Ontario, Canada while awaiting re-entry. Upon re-entering, he was assigned to Plattsburgh Air Force Base in New York, where he stated he intended to return to Illinois once he retired and had never registered to vote in New York. He asked whether he was a New York resident for personal income tax purposes.

The Department applied Tax Law § 605(a)'s two-part residency test: someone is a resident either by being domiciled in New York, or by maintaining a permanent New York abode and spending more than 183 days in the state - except that the 183-day test doesn't apply while the individual is in active military service. Domicile itself means the place someone intends as their permanent home, the place to which they intend to return whenever absent (20 NYCRR 102.2(d)(1)). Critically, federal law and 20 NYCRR 102.2(d)(6) establish that a servicemember doesn't lose or acquire domicile merely by being stationed somewhere under military orders - domicile is unaffected by military service itself, and changing it requires facts objectively showing a genuine, voluntary intent to make the new place home, which is difficult to prove for someone under service orders.

Applying that framework, the Department found Muhlenbruch remained domiciled in Illinois throughout: his 1973 civilian stint in New York was explicitly conditional ("only if his job worked out") and he left after it didn't pan out, so he never formed the intent to make New York his permanent home during that period; and his later assignment to Plattsburgh was under military orders, which - per the servicemember domicile rule - presumptively didn't change his domicile either, especially given his stated intent to return to Illinois upon retirement. Since he was never domiciled in New York, and his time exceeding 183 days in the state occurred during active military service (falling under the statutory exception), he was not a New York resident. As a nonresident, he would owe New York tax only on non-military income connected with New York sources, though any refund claim remains subject to the standard time limitation under Tax Law § 687(a).

What this means for you

Servicemembers stationed in New York under military orders

Being assigned to a New York base doesn't automatically make you a New York resident for income tax purposes. Your domicile - wherever you truly intend to make your permanent home - stays put unless you take real, voluntary steps to adopt New York as your home, independent of your military orders.

Servicemembers who briefly lived in New York for a civilian job before or between service periods

A short, explicitly conditional stay (like Muhlenbruch's "only if the job works out" arrangement) generally won't establish New York domicile if you leave once the condition fails and never demonstrate a genuine intent to stay permanently.

Accountants and military legal-assistance offices advising servicemembers on state residency

Look for objective evidence of intent (or its absence) to adopt a new domicile - voter registration, permanent-home statements, plans to return to the prior domicile after service - since the servicemember domicile-protection rule places the burden on facts showing a real, voluntary change, not just physical presence under orders.

Common questions

Q: I'm in the military and stationed in New York - am I automatically a New York resident for tax purposes?
A: No. Federal law and New York's own regulations prevent a servicemember from losing or gaining domicile solely because of being stationed somewhere under military orders. You'd need to show an independent, voluntary intent to make New York your permanent home.

Q: What if I spend more than 183 days a year in New York while stationed there?
A: That alone doesn't make you a resident either - Tax Law § 605(a)'s 183-day test specifically doesn't apply while you're in active military service.

Q: If I'm found to be a nonresident, what New York income is still taxable to me?
A: As a nonresident, you'd owe New York tax only on income (other than military pay) that's derived from or connected with New York sources - not on your worldwide income.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1983.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a83_3i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-83 (3) I
Income Tax
June 20, 1983

STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. I821012E

On October 12, 1982 a Petition for Advisory Opinion was received from Robert T.
Muhlenbruch, 6089-C Maine Road, Plattsburgh AFB, New York 12903.
The issue raised is whether Petitioner is a resident of New York State, for purposes of the
Personal Income Tax imposed under Article 22 of the Tax Law.
Petitioner, a domiciliary of Illinois at the time, entered military service in 1965. In 1973
Petitioner left military service, rented an apartment in New York State and took employment.
Petitioner states that this employment was of an indefinite nature. He further states that it was his
intention to remain in such employment,.and to continue residing in New York, only if the job
worked out to his satisfaction. It did not do so and, after approximately three months, Petitioner
decided to re-enter military service. While awaiting re-entry into military service, Petitioner resided
in Welland, Ontario, Canada. Upon such re-entry, Petitioner was assigned to Plattsburgh Air Force
Base, New York. Petitioner states that when he retires from military service, he intends to return to
Illinois. He also states that he has never registered to vote in New York.
Section 605(a) of the Tax Law defines the term "resident individual" as ". . . an individual:
(1) who is domiciled in this state, unless
(A) he maintains no permanent place of abode in this state, maintains a permanent place of
abode elsewhere, and spends in the aggregate no more than thirty days of the taxable year in this state
or.
(2) 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."
Domicile may be defined as "the place which an individual intends to be his permanent home

• the place to which he intends to return whenever he may be absent." 20 NYCRR 102.2(d)(1)
  Section 102.2(d)(6) of the Personal Income Tax Regulations provides as follows:
  "Federal law provides in effect that for the purposes of taxation, a serviceman is not
  deemed to have lost his residence or domicile in any state solely by reason of being absent therefrom
  in compliance with military or naval orders. Thus, such Federal law insures that a serviceman
  domiciled in New York State would not be deemed a domiciliary for income tax purposes in
  another state in which he is stationed. On the other hand, a serviceman domiciled in another
  state who is stationed in New York State would not be deemed a domiciliary, for personal income

RODERICK G. W. CHU, COMMISSIONER
TP-8 (3/83)

GABRIEL B. DiCERBO, DEPUTY COMMISSIONER
FRANK J. PUCCIA, DIRECTOR

-2­
TSB-A-83 (3) I
Income Tax
June 20, 1983

tax purposes, of New York State. The rule is, generally speaking, that the domicile of a person is
in no way affected by service in the armed forces of his country. A change of domicile has to be
shown by facts which objectively manifest a voluntary intention to make the new location a
domicile. It is possible for a serviceman to change his domicile; however, the requisite intent is
difficult to prove."
It appears from the foregoing that Petitioner was domiciled in Illinois in 1965, at the time he
entered military service. Petitioner presents no information which would indicate a change of
domicile during his period of military service ending in 1973. In 1973 Petitioner took up residence
in New York. According to Petitioner he did not, while living in New York for the ensuing three
months, have an intention to remain in New York and adopt New York as his home. Rather, he took
up employment on an indefinite, rather than a permanent, basis, and resolved to remain in New York
only if his job proved to be satisfactory to him. As it did not, he removed from New York, never
having established domicile therein. His subsequent assignment to the Plattsburgh Air Force Base
presumably did not effect a change of domicile, pursuant to 20 NYCRR 102.2(d)(6), quoted above.
Petitioner has presented no information which would indicate an intention to adopt New York as his
domicile while stationed at Plattsburgh. Indeed, it is his stated intention to return to Illinois upon
retirement.
Accordingly, based on the information presented by Petitioner, as set forth above, Petitioner
is not a domiciliary of New York and has not been such during the period in question. Further, his
maintenance of a permanent place of abode in the State for more than 183 days of any of the taxable
years in question occurred while in active service in the armed forces of the United States. It follows
that Petitioner is not now and has not been a resident of New York, within the meaning of section
605(a) of the Tax Law, and was not required to file tax returns as a resident, during the years in
question. Further, as a nonresident, Petitioner would have been subject to tax only on income, other
than military pay, derived from or connected with New York sources. Tax Law, § 632(e). Any refund
of tax to which Petitioner may be otherwise entitled is subject to the following limitation: with
respect to any taxable year, a claim for credit or refund must "be filed by the taxpayer within three
years from the time the return was filed or two years from the time the tax was paid, whichever of
such periods expires the later, or if no return was filed, within two years from the time the tax was
paid." Tax Law, § 687(a). It should be noted that the issuance of refunds may be conditioned upon
verification of the facts presented by Petitioner herein.

DATED: June 15, 1983

s/FRANK J. PUCCIA
Director
Technical Services Bureau