New York Advisory Opinion TSB-A-86 (13)I: Is Hope Sayles, an adjudged-incompetent individual whose guardian maintains a New York residence for her but who spends less than 183 days a year in New York, a New York resident for personal income tax purposes?

Plain-English summary

Hope Sayles was an adult adjudged incompetent since childhood due to mental disorders, under the guardianship of the Probate Court of Pawtucket, Rhode Island, with Laurance B. Rand serving as her guardian. Her parents (now deceased) had always been domiciled in Rhode Island, and Sayles herself lived on the family homestead there until her mother's death in 1946. Starting in 1948, her guardian leased (and later, in 1958, purchased in his guardian capacity) accommodations in New York City for her use, and since then she had not maintained a residence in Rhode Island. For 1982 and 1983, she spent less than 183 days each year in New York, and her guardian stated that neither he nor Sayles had any power or intent to change her domicile from Pawtucket. The question was whether she was a New York resident under Tax Law § 605(a) - which reaches a non-domiciliary who maintains a permanent New York abode AND spends more than 183 days a year in the state - given that the 183-day threshold wasn't met, but only if she truly remained a non-domiciliary.

The Department first noted an important boundary on its own authority: whether Sayles' domicile had actually changed to New York is a factual question, and under 20 NYCRR 901.1(a), Advisory Opinions are limited to applying legal provisions to specified facts, not resolving factual disputes - so the Department could not itself decide whether her domicile changed, only lay out the relevant law for use in resolving her refund claim. It then worked through the governing legal framework. Under 20 NYCRR 102.2(d), a domicile once established continues until the person moves elsewhere with the bona fide intent to make the new location a fixed and permanent home, and a person can have only one domicile at a time. Critically, New York case law establishes that, except in unusual circumstances, an incompetent individual is legally incapable of forming the intent necessary to change domicile (citing Rothfeld and Ratkowsky) - though under some circumstances a guardian or the appointing court may have the power to change an incompetent's domicile on the ward's behalf (citing First Trust and Deposit Co. and Matter of Gibbs v. Berger).

Applying this framework, the Department reasoned that Sayles was a Rhode Island domiciliary as a child living with her Rhode Island-domiciled parents, and that domicile is presumed to continue since she lacked the legal capacity to form the intent to change it herself. Absent a showing that her guardian or the Probate Court took some affirmative action to change her domicile, the Department concluded her Rhode Island domicile is presumed to continue - meaning she remains a non-domiciliary of New York, and since she spent less than 183 days in New York in 1982 and 1983, she is taxable only as a nonresident under § 605(a), notwithstanding the New York residence maintained on her behalf.

What this means for you

Guardians of incompetent individuals who maintain a residence in a state other than the ward's original domicile

Maintaining a home for your ward in a new state does not, by itself, change the ward's domicile for New York tax purposes - because an incompetent individual generally cannot form the legal intent required to change domicile, the ward's original domicile is presumed to continue unless the guardian or the appointing court has taken some affirmative action to change it.

Families and fiduciaries managing an incompetent relative's tax residency status

If your ward's original domicile state and current living arrangements differ, the 183-day statutory residency test in Tax Law § 605(a) still applies, but the underlying domicile question can be legally different for an incompetent person than it would be for a competent one - track carefully whether any guardian or court action has been taken that could be construed as changing domicile, since the default presumption favors continuity of the original domicile.

Accountants and estate/guardianship attorneys handling residency questions for wards under guardianship

Recognize that the Department will not resolve a genuine domicile-change dispute in an advisory opinion - that determination is inherently factual and must be worked out in the context of an audit or refund claim, using the legal framework (continuing presumption of original domicile, incapacity of an incompetent to form new intent, and limited guardian/court power to effect a change) that this opinion lays out.

Common questions

Q: If a guardian maintains a residence for an incompetent ward in New York, does that automatically make the ward a New York resident?
A: Not by itself. Under New York case law, an incompetent individual generally cannot form the intent required to change domicile, so the ward's original domicile is presumed to continue unless the guardian or the appointing court took some affirmative action to change it - maintaining a residence alone isn't enough.

Q: Can a guardian or court change an incompetent person's domicile on their behalf?
A: Under some circumstances, yes - the Department cited First Trust and Deposit Co. v. State Tax Commission and Matter of Gibbs v. Berger for the principle that a guardian or the appointing court may have the power to change an incompetent's domicile, though this isn't automatic.

Q: Will the Department decide in an advisory opinion whether my (or my ward's) domicile has actually changed?
A: No. The Department treats whether a domicile has changed as a factual question outside the scope of an advisory opinion (20 NYCRR 901.1(a)); it will lay out the applicable legal framework, but the actual determination must be made in the context of an audit or refund claim.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1986.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a86_13i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-86 (13) I
Income Tax
September 30, 1986

STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. I860508A

On May 8, 1986, a Petition for Advisory Opinion was received from Laurance B. Rand as
guardian for Hope Sayles c/o Edwards and Angell, 2700 Hospital Trust Tower, Providence, Rhode
Island 02903.
The issue raised is whether Hope Sayles is a resident individual not domiciled in New York
who spent in the aggregate less than 183 days of the taxable year in the State of New York during
1982 and 1983.
Laurance B. Rand, a resident of South Port, Connecticut, is the guardian of Hope Sayles
under appointment by the Probate Court of the City of Pawtucket, Rhode Island. Mr. Rand describes
the facts of this case as follows:
Hope Sayles is an adult individual adjudged to be incompetent due to mental disorders. She
has been incompetent at all times since her childhood. Hope Sayles is subject to the guardianship of
the Probate Court of Pawtucket, Rhode Island and has been subject to the jurisdiction of the court
since before reaching the age of majority.
The parents of Hope Sayles, now deceased, were at all times domiciled in the State of Rhode
Island. Until her mother's death in 1946, Hope Sayles lived at the Sayles' homestead in Rhode Island
and was domiciled in Rhode Island.
Effective March 1, 1948, Laurance B. Rand, as guardian of Hope Sayles, leased a hotel
apartment in New York City for the accommodation of Hope Sayles and her companions when
staying in New York. As of June 23, 1958, he acquired, in his capacity as such guardian, a
cooperative apartment in New York City for the same purposes. Since then, it appears that Hope
Sayles has not maintained a residence in Rhode Island.
Mr. Rand states that during each of the calendar years 1982 and 1983, Hope Sayles spent in
the aggregate less than one hundred eighty-three days in New York State. He also states that neither
he nor Hope Sayles had or has any power or intention to change Hope Sayles' domicile from
Pawtucket, Rhode Island.
Section 605(a) of the Tax Law defines a "resident individual" as an individual:
...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 ....

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

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

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TSB-A-86 (13) I
Income Tax
September 30, 1986

Section 102.2(d) of the personal income tax regulations of the Tax Commission provides,
in part:
(1) Domicile, in general, is the place which an individual intends to
be his permanent home - the place to which he intends to return
whenever he may be absent.
(2) A domicile once established continues until the person in question
moves to a new location with the bona fide intention of making his
fixed and permanent home there... The burden is upon any person
asserting a change of domicile to show that the necessary intention
existed ....
(4) A person can have only one domicile. If he has two or more
homes, his domicile is the one which he regards and uses as his
permanent home ... a person who maintains a permanent place of
abode 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
he may be domiciled elsewhere.
(5)...A child's domicile ordinarily follows that of such child's parents,
until such child reaches the age of self-support and actually
establishes his or her own separate domicile... The domicile of a child
for whom a guardian has been appointed is not necessarily
determined by the domicile of the guardian .... 20 NYCRR 102.2.
While the present regulations of the State Tax Commission have been amended subsequent
to the taxable years in question (1982 and 1983) they, nevertheless, set forth the longstanding policy
of the State Tax Commission and the Department of Taxation and Finance and will be given due
consideration in this Advisory Opinion.
Initially, it is noted that the question of whether a domicile has been changed is one of fact
rather than of law. Ratkowsky v. STC, 267 A.D. 643, 47 NYS2d 905 (1944). The scope of Advisory
Opinions is limited to "setting forth the applicability to a specified set of facts of pertinent statutory
and regulatory provisions .... " 20 NYCRR 901.1(a). Accordingly, it is outside of the scope of
Advisory Opinions to decide whether Petitioner has changed her domicile to New York. Since the
question arises within the context of a claim for refund, it must be answered within that context.
However, the following discussion of relevant law and regulations should aid in the resolution of this
question.
It is well established as a matter of law in New York State that, except in unusual
circumstances, an incompetent individual is incapable of forming the intention necessary to change
such individual's domicile. Rothfeld v. State Tax Commission, 264 A.D. 54, 34 NYS2d 895 (1942);
Ratkowsky v. State Tax Commission, supra; But see In the Matter of the Estate of William Meyers,
59 Misc 2d 507 (1969). However, although this question is not entirely free from doubt, it

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TSB-A-86 (13) I
Income Tax
September 30, 1986

appears that under some circumstances the legal guardian of an incompetent or the court appointing
such guardian may have the power to change an incompetent's domicile. First Trust and Deposit
Company v. State Tax Commission, 3 NY2d 410 (1957); In the Matter of Gibbs v. Berger, 59 AD2d
282 (1977).
Hope Sayles was a domiciliary of Rhode Island prior to the death of her parents inasmuch
as she lived in Rhode Island on the Sayles' homestead with her parents who were domiciliaries of
Rhode Island. See 20 NYCRR 102.2(d)(5). Her Rhode Island domicile is presumed to continue until
she moved to a new location with the bona fide intention of making the new location her fixed and
permanent home. See 20 NYCRR 102.2(d)(2). Since Hope Sayles lacked the legal capacity to form
such intention, it must be presumed that her domicile remained in Rhode Island in the absence of a
showing that Laurance B. Rand, as legal guardian of Hope Sayles, or the Probate Court of the City
of Pawtucket has taken some action which serves to change Hope Sayles' domicile. See First Trust
and Deposit Co. v. State Tax Commission, supra.
Accordingly, in the absence of a showing of a change of domicile of Hope Sayles by
Laurance B. Rand or the Probate Court of the City of Pawtucket, it must be presumed that Hope
Sayles is a non-domiciliary of New York and, as such, is subject to the personal income tax imposed
under Article 22 of the Tax Law as a nonresident since, although maintaining a residence in New
York, she spent less than 183 days in the state in each of the years in question.

DATED: September 30, 1986

s/Frank J. Puccia
Director
Technical Services Bureau

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