Mae LaBue, a longtime New Jersey resident and homeowner, was admitted to a nursing home in the Bronx, New York on her physician's advice due to a stroke, severe paralysis, and hypertension, and is expected to remain there for the rest of her life. Does this involuntary, medically-necessitated placement make her a New York resident for 1991 or any future tax year?

Plain-English summary

Mae LaBue had been a New Jersey resident since February 14, 1981, living in a one-family New Jersey house she owned jointly with her sister - a house she still owned at the time of this opinion. On March 20, 1991, on her physician's advice, she was admitted to Providence Rest, a nursing home in the Bronx, New York. Her diagnosis included a cerebral vascular accident (stroke) with progressive debilitation, severe left-sided paralysis (hemiparesis), and hypertension. Her doctor reported that she could no longer perform basic daily tasks, required constant nursing care including nurse-administered medication, and needed regular monitoring in a care facility. Given her condition, it was expected she would remain at Providence Rest for the rest of her life. She asked the Department whether this placement would make her a New York resident for 1991 or any future year.

New York's residency test under Tax Law § 605(b)(1) has two independent paths to residency. First, a person domiciled in New York is a resident unless they maintain no New York abode, maintain a permanent abode elsewhere, and spend 30 days or fewer in New York. Second, even a person not domiciled in New York becomes a "statutory resident" if they maintain a permanent place of abode in New York and spend more than 183 days of the year in the state. Domicile, under Reg. § 102.2(d), is the place a person intends as their permanent home, and it continues until the person makes a bona fide move to a new location with the actual intent to make that new place their fixed and permanent home; moving somewhere with only a limited or temporary intent does not change domicile. Critically, changing domicile requires both a physical relocation and an intention to abandon the old domicile and adopt the new one - intent alone or physical presence alone is not enough.

The Department found that LaBue was domiciled in New Jersey before entering the nursing home, and that her admission to Providence Rest was not the product of her own voluntary decision to relocate - it happened because her physician found her physically and mentally incapacitated and recommended nursing home care. Because the required "intention to abandon" element was missing (she didn't choose to move to New York; her medical condition and doctor's advice dictated it), her domicile could not shift to New York. She therefore remains a New Jersey domiciliary for as long as she stays in the New York nursing home. That knocked out the first path to New York residency. On the second path, the Department held that staying in a nursing home to receive nursing care does not amount to "maintaining a permanent place of abode" under Reg. § 102.2(e), and - citing Stranahan v. New York State Tax Commission - days spent in the nursing home don't even count toward the 183-day threshold. With neither test satisfied, the Department ruled LaBue is not a New York resident and remains a nonresident of New York State for all the taxable years during which her presence in New York consists of confinement at the nursing home.

What this means for you

Elderly or incapacitated family members placed in an out-of-state nursing home

If a parent, spouse, or other family member is domiciled in one state but is moved into a nursing home in New York because of illness, injury, or incapacity - on a doctor's recommendation rather than by their own choice - this opinion is good news: New York will not treat that placement as a change of domicile, because the essential "intent to abandon" element of a domicile change cannot be satisfied by an involuntary, medically-necessitated move. The person keeps their prior home state's domicile, and their time in the New York facility doesn't count as maintaining a New York abode or toward the 183-day statutory-residency count.

Accountants and elder-law/estate planners handling clients in long-term care

When a client (or a client's parent) enters a New York nursing home involuntarily due to incapacity, document the medical basis for the admission - physician's diagnosis, statements about inability to perform daily tasks, and the medical necessity of the placement - just as LaBue did here. That record is what let the Department decide the domicile question outright in the taxpayer's favor, rather than treating it as an unresolved factual dispute (contrast this with cases like the Springer and Haythe & Curley opinions, where the Department declined to resolve a disputed, voluntary domicile-change question). Also remember that nursing-home days for pure medical/nursing-care purposes don't count toward the 183-day statutory-residency test at all, under Stranahan.

Taxpayers weighing a voluntary move into New York senior or assisted-living housing

This ruling turns on involuntariness and incapacity - it does not extend to someone who chooses, of their own free will, to move into a New York retirement community, assisted-living facility, or a family member's home in New York. A voluntary move made with the intent to make New York a permanent home would trigger ordinary domicile-change analysis (physical move plus intent to abandon the old domicile), and time spent there could count toward statutory residency if a permanent abode is maintained.

Common questions

Q: Why didn't LaBue become a New York domiciliary once she moved into the Bronx nursing home?
A: Changing domicile requires two things: an actual physical move to the new location, and a genuine intention to abandon the old domicile and make the new place a permanent, fixed home. LaBue physically moved to New York, but the Department found no such intent - her admission was driven entirely by her doctor's advice due to a stroke, paralysis, and related incapacity, not by her own choice to relocate. Without the intent element, her domicile could not shift from New Jersey to New York.

Q: If she isn't a New York domiciliary, could she still be taxed as a New York "statutory resident"?
A: No. Statutory residency requires maintaining a permanent place of abode in New York and spending more than 183 days per year there. The Department held that living in a nursing home to receive nursing care doesn't count as "maintaining a permanent place of abode," and - citing Stranahan v. New York State Tax Commission - the days spent in such a facility don't even count toward the 183-day tally in the first place. Both prongs of the statutory-residency test failed.

Q: How is this different from other New York domicile opinions where the Department wouldn't answer the question?
A: In several other advisory opinions involving a possible change of domicile (for example, opinions involving taxpayers who moved for a new job or awaiting a Senate confirmation), the Department declined to resolve the domicile question because it depended on disputed facts about the taxpayer's own intent - a factual call better made on audit. Here, by contrast, the Department did decide the question, and decided it in the taxpayer's favor, because the involuntary and medically-compelled nature of the nursing-home placement made the "no intent to relocate" conclusion clear-cut rather than a close factual dispute.

Q: Does this ruling depend on LaBue still owning her New Jersey home?
A: Retaining the New Jersey home as a joint tenant with her sister supported the finding that she never intended to abandon her New Jersey domicile, but the opinion's core reasoning turns on the involuntary, medically-necessitated nature of her move to New York, not merely on keeping a house elsewhere. Someone without a retained out-of-state residence could potentially reach the same result if the record similarly shows an involuntary, incapacity-driven placement.

Q: For how long does LaBue remain a New York nonresident under this ruling?
A: The Department's holding covers "the taxable years during which her presence in New York State is maintained at the nursing home" - in other words, for as long as her New York presence consists of confinement at Providence Rest for nursing care due to her medical condition. The opinion anticipated this would likely be for the balance of her life, given her prognosis.

Citations and references

• Tax Law § 605(b)(1) - defines a New York resident individual under both the domicile test (with its 30-day exception) and the statutory-residency test (permanent abode plus more than 183 days)
• Reg. § 102.2(d) - domicile is the place a person intends as a permanent home, and it continues until a bona fide move with intent to establish a new fixed and permanent home elsewhere
• Reg. § 102.2(e) - defines a "permanent place of abode" as a dwelling place permanently maintained by the taxpayer, whether owned or not
• Stranahan v. New York State Tax Commission, 68 AD2d 250 - days spent in a facility for nursing/medical care do not count toward the 183-day statutory-residency threshold

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1991.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a91_10i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-91 (10) I
Income Tax
December 24, 1991

Taxpayer Services Division
Technical Services Bureau
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I910904B

On September 4, 1991, a Petition for Advisory Opinion was received from Mae
LaBue, c/o Rose, Dratch & Co., PA, 175 Fairfield Avenue, Suite 4C/D, West
Caldwell, New Jersey 07006.
The issue raised by Petitioner, Mae LaBue, is whether she will be a New
York resident for all or part of taxable year 1991 and for all future tax years.
Petitioner has been a New Jersey resident since February 14, 1981. She
resided in a one-family residence located in New Jersey. This residence was, and
still is, owned by Petitioner as a joint tenant with her sister. On March 20,
199lo.Petitioner was admitted to Providence Rest, a nursing home located in the
State of New York, Borough of the Bronx. Her admission was pursuant to the
advice of her physician whose diagnosis included cerebral vascular accident with
progressive debilitation, severe left hemiparesis, and hypertension.
Her
physician stated that she is unable to perform menial tasks and she needs
constant nursing care, including the administering of medication by a nurse. "In
addition, she must be monitored on a regular basis in a care facility." It is
believed that due to the foregoing medical conditions, Petitioner will be
confined to the Providence Rest facility for the balance of her life.
Section 605(b)(1) of the Tax Law provides that a resident individual is (1)
an individual who is domiciled in New York State unless the individual maintains
no permanent place of abode in New York State, maintains a permanent place of
abode elsewhere, and spends in the aggregate not more than 30 days of the taxable
year in New York State, or (2) an individual who is not domiciled in New York
State but maintains a permanent place of abode in New York State and spends in
the aggregate more than 183 days of the taxable year in New York State.
Section 102.2(d) of the Personal Income Tax Regulations provides that
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 the individual may be absent. A domicile once established continues
until the person in question moves to a new location with the bona fide intention
of making such person's fixed and permanent home there.
No change of domicile
results from a removal to a new location if the intention is to remain there only
for a limited time.
Section 102.2(e) of the Personal Income Tax Regulations provides that a
permanent place of abode means a dwelling place permanently maintained by the
taxpayer, whether or not owned by the taxpayer, and will generally include a
dwelling place owned or leased by his or her spouse.
TP-9 (9/88)

-2­

TSB-A-91 (10) I
Income Tax
December 24, 1991

To effect a change of domicile there must be not only a physical change of
residence but an intention to abandon the former domicile and to acquire another.
Herein, Petitioner was domiciled in New Jersey prior to her admittance to a
nursing home in New York State. Petitioner's admission was made pursuant to the
advice of her physician who stated that she is unable to perform menial tasks and
that she needs constant nursing care, including the administering of medication
by a nurse. In addition, she must be monitored on a regular basis in a care
facility. It is believed that Petitioner will be confined to the nursing home
for the balance of her life. Accordingly, Petitioner's presence in New York State
is not the result of her own intent and decision but due to a physical or mental
incapacity. Therefore, Petitioner remains a domiciliary of New Jersey during the
period of time she remains in the nursing home in New York State.
Since Petitioner is not domiciled in New York, to be considered a resident
of New York State, Petitioner would have to maintain a permanent place of abode
in New York and spend in the aggregate more than 183 days in the taxable year in
New York State. Petitioner's stay in a nursing home for the purpose of receiving
nursing care does not constitute the maintenance of a permanent place of abode
in New York State and any day spent in such facility would not count as a day in
New York for purposes of the 183 day rule.
(See: Stranahan v New York State
Tax Commission, 68 AD2d 250)
Accordingly, Petitioner is not a New York domiciliary and will be a
nonresident of New York State for the taxable years during which her presence in
New York State is maintained at the nursing home.

DATED: December 24, 1991

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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