A taxpayer who was long domiciled in New York City sold his co-op apartment, bought a Connecticut home he intends to make permanent, registered to vote and got a driver's license in Connecticut, moved his company's headquarters there, and will spend fewer than 183 days a year in New York - while still keeping his Montauk vacation home, New York club memberships, and relationships with New York bankers, advisers, and attorneys. Has he changed his domicile from New York to Connecticut and become a New York nonresident?

Plain-English summary

The law firm Haythe & Curley petitioned the Department on behalf of an unnamed client, asking whether he had changed his domicile from New York to Connecticut and become a New York nonresident. Taxpayer had been domiciled in New York City for many years, owning a co-op apartment there (his permanent residence) along with a year-round vacation home in Montauk, Long Island. He was the sole shareholder of a corporation headquartered in New York City, had developed long-term relationships with New York bankers, investment advisers, and attorneys, belonged to several New York clubs, and made substantial donations to New York charities.

By the time of the petition, Taxpayer had bought a Connecticut home he intended to make his permanent residence, sold his New York City apartment, registered to vote in Connecticut, obtained a Connecticut driver's license, and moved his corporation's headquarters to a Connecticut location near his new home. He still owned the Montauk vacation home but no longer had any permanent place of abode in New York City. A few of his corporation's employees continued to work from a New York City office, and Taxpayer himself spent some time there, but he would be present in New York for fewer than 183 days per year. He planned to keep his New York club memberships, his relationships with his New York bankers, advisers, and attorneys, and his charitable giving to New York organizations.

The Department declined to decide whether these facts actually added up to a change of domicile. It explained that a determination of domicile change is a question of fact, and an Advisory Opinion under Tax Law § 171 Twenty-fourth and 20 NYCRR § 2376.1(a) can only apply the law to "a specific set of facts" - it cannot resolve factual questions like this one. Instead, the Department walked through the full legal framework: Tax Law § 605(b)(1)'s definition of a resident individual (domicile, or a statutory-residence test based on maintaining a permanent place of abode and spending more than 183 days in the state); 20 NYCRR § 105.20(d), which defines domicile as the place a person intends as a permanent home, continuing until the person forms a bona fide intent to make a new location their fixed and permanent home and actually moves there, with declarations (like voter registration) given weight but not treated as conclusive, especially if made merely to escape taxation; and 20 NYCRR § 105.20(e)(1), which defines a permanent place of abode but excludes "a mere camp or cottage... used only for vacations." It also recited the classic case law on domicile, most notably Matter of Newcomb's holding that domicile requires both residence and a genuine, honestly-held intention to make a place one's fixed and permanent home, with the burden of proving a change resting on the person who asserts it. Having set out the framework, the Department directed Petitioner to apply it to Taxpayer's facts and draw the conclusion itself - the opinion issued the same month as a companion ruling, TSB-A-92(7)I, which took the identical "we won't decide, here's the test" approach and cited this opinion by the petitioning firm's name as precedent.

What this means for you

Individuals moving from New York to another state who want to change domicile

Simply buying a new home elsewhere, registering to vote there, and getting a new driver's license will not, by themselves, guarantee that New York recognizes a change of domicile - the Department treats those declarations as relevant evidence but not conclusive proof, particularly if your continuing ties to New York (a vacation home, club memberships, business relationships, an office where you still spend time) suggest you have not truly abandoned New York as your permanent home. To succeed, you need both an honest, present intention to make the new location your fixed and permanent home and actual residence there; keeping deep New York connections while claiming a domicile change invites exactly the factual scrutiny this opinion says the Department cannot resolve for you in advance.

Taxpayers and advisers seeking an Advisory Opinion on a domicile question

Do not expect the Department to bless a domicile change (or reject one) through the Advisory Opinion process. Because whether someone has changed domicile is inherently a question of fact - turning on individualized circumstances like intent, the sequence and completeness of the move, and the significance of continuing contacts with New York - an Advisory Opinion will typically only recite the governing statute, regulations, and case law and leave the factual conclusion to the taxpayer (and, ultimately, to audit or litigation if the Department disagrees).

Taxpayers who keep a New York vacation home after "moving" to another state

This opinion notes that Taxpayer kept his Montauk vacation home but never analyzes it against the regulatory "camp or cottage" carve-out in 20 NYCRR § 105.20(e)(1), because the Department reached no factual conclusions here at all. If you keep a vacation property in New York after claiming a domicile change, whether that property counts as a "permanent place of abode" (which could trigger New York's separate 183-day statutory-residency test even if you've genuinely changed domicile) is a fact-specific question that depends on how the property is used and maintained - a purely seasonal, vacation-only property is more likely to qualify for the carve-out than one used more broadly.

Common questions

Q: Did the Department decide whether Taxpayer changed his domicile to Connecticut?
A: No. The Department expressly declined to reach that conclusion, explaining that a domicile determination is a question of fact and an Advisory Opinion can only apply the law to a specific set of facts under Tax Law § 171 Twenty-fourth and 20 NYCRR § 2376.1(a) - it cannot make factual findings. Instead, it set out the governing statute, regulations, and case law and told Petitioner to apply the rules to determine the answer.

Q: What does it take to change domicile under New York law?
A: Under 20 NYCRR § 105.20(d) and the case law discussed in the opinion (especially Matter of Newcomb), a change of domicile requires both a bona fide intention to make the new location one's fixed and permanent home and actual residence there. Residence without intention, or intention without residence, is not enough. The burden of proving a change of domicile falls on the person asserting it, and a person can have only one domicile at a time - determined by which home they regard and use as their permanent one.

Q: Does registering to vote and getting a driver's license in the new state prove a domicile change?
A: Not conclusively. The regulation says such declarations are given weight, but they are not conclusive if contradicted by a person's conduct - and are especially discounted if the facts suggest the person did them merely to escape taxation elsewhere. In this opinion, Taxpayer's continuing New York club memberships, business relationships, charitable giving, and vacation home were all facts that would need to be weighed against his Connecticut declarations.

Q: Even if Taxpayer changed his domicile, could he still be taxed as a New York resident?
A: Potentially, under the separate statutory-residence test in Tax Law § 605(b)(1): someone who is not domiciled in New York but maintains a permanent place of abode in the state and spends more than 183 days there in the year is still taxed as a resident. The opinion notes Taxpayer expected to spend fewer than 183 days per year in New York and would have no permanent place of abode in New York City, though it does not analyze whether the Montauk vacation home could count as a permanent place of abode.

Q: Why doesn't the opinion address whether the Montauk home is a "camp or cottage" that falls outside the permanent-place-of-abode definition?
A: The opinion recites 20 NYCRR § 105.20(e)(1)'s exclusion for "a mere camp or cottage... used only for vacations" as part of the general legal framework, but because the Department never reached any factual conclusions in this opinion, it never applied that carve-out to the Montauk property specifically. The property is mentioned only as a fact that Taxpayer would continue to own.

Citations and references

• Tax Law § 605(b)(1) - defines a New York "resident individual" by domicile (unless certain permanent-place-of-abode/thirty-day conditions are met) or by maintaining a permanent place of abode in New York and spending more than 183 days there
• 20 NYCRR § 105.20(d) - domicile is the place a person intends as a permanent home; continues until a bona fide intent to make a new fixed and permanent home is coupled with an actual move; declarations (including voter registration) are relevant but not conclusive; a person can have only one domicile
• 20 NYCRR § 105.20(e)(1) - defines a permanent place of abode, excluding "a mere camp or cottage, which is suitable and used only for vacations"
• Tax Law § 171 Twenty-fourth - authorizes Advisory Opinions applying the law to "a specific set of facts," not resolving factual disputes
• 20 NYCRR § 2376.1(a) - confirms Advisory Opinions apply statutory and regulatory provisions to a specific set of facts
• Matter of Newcomb, 192 NY 238, 250 - the foundational Court of Appeals statement that domicile requires residence plus a genuine intent to make it a fixed and permanent home, with the burden on the party alleging a change
• Matter of Minsky v Tully, 78 AD2d 955 - a change of domicile requires both intent to make a new location a fixed and permanent home and actual residence there
• Matter of Zinn v Tully, 54 NY2d 713, revg 77 AD2d 725 - establishing a new residence elsewhere does not necessarily prove an intent to change domicile
• Matter of Brunner v Hochman, 41 NY2d 917 - cited among the body of case law refining the domicile test
• Matter of Babbin v State Tax Commn, 67 AD2d 762, affd 49 NY2d 846 - cited among the body of case law refining the domicile test
• Matter of Klein v State Tax Commn, 55 AD2d 982, affd 43 NY2d 812 - cited among the body of case law refining the domicile test
• Matter of Bodfish v Gallman, 50 AD2d 457 - articulates the test of intent as "whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it"
• Matter of Nask, Dec Tax App Trib, September 29, 1988, TSB-D-88(19)I - cited among the body of case law refining the domicile test

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1992.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a92_5i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-92 (5) I
Income Tax
July 13, 1992

Taxpayer Services Division
Technical Services Bureau
STATE 0F NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I920511A

On May 11, 1992, a Petition for Advisory was received from Haythe & Curley,
437 Madison Avenue, New York, New York 10022.
The issue raised by Petitioner, Haythe & Curley, is whether Taxpayer has
changed his domicile from New York to Connecticut and is a nonresident of New
York State under the fact pattern presented.
Taxpayer has been domiciled in New York City for many years. During this
period, Taxpayer has owned a cooperative apartment in New York City and a year­
round vacation home in Montauk, Long Island. The New York City apartment has
been Taxpayer's permanent residence. Taxpayer is the sole shareholder of a
corporation with an office in New York City and Taxpayer has developed long-term
professional relationships with certain bankers, investment advisers and
attorneys in New York. Taxpayer is a member of several clubs in New York and
makes substantial donations to certain New York charities.
Taxpayer has purchased a home in Connecticut that he intends to make his
permanent residence and has sold his apartment in New York.
Taxpayer has
registered to vote in Connecticut and obtained a Connecticut driver's license.
He will continue to own his vacation home in Montauk, but has no permanent place
of abode in New York City. Taxpayer has moved his corporation's headquarters to
a location in Connecticut that is near his new home.
A few employees of
Taxpayer's corporation continue to work in a New York City office of the
corporation and Taxpayer spends some time at the New York office. However,
Taxpayer will be present in New York for less than 183 days per year. Taxpayer
will maintain his club memberships in New York and his relationships with his New
York bankers, investment advisers and attorneys.
Taxpayer will continue to
contribute to New York charities.
Section 605(b)(1) of the Tax Law defines a "resident individual" as an
individual (1) 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 thirty days of the
taxable year in New York State or (2) 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 one hundred eighty-three days of the taxable year in New York
State.
The Tax Law does not contain a definition of domicile. However, section
105.20(d) of the Income Tax Regulations provide, in pertinent part, as follows:
(1) Domicile, in general, is the place which an
Domicile.
individual intends to be such individual's permanent home -- the
place to which such individual intends to return whenever such
individual may be absent.

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TSB-A-92 (5) I
Income Tax
July 13, 1992

(2) A domicile once established continues until the individual in
question moves to a new location with the bona fide intention of
making such individual'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; this rule
applies even though the individual may have sold or disposed of such
individual's former home. The burden is upon any person asserting
a change of domicile to show that the necessary intention existed.
In determining an individual's intention in this regard, such
individual's declarations will be given due weight, but they will
not be conclusive if they are contradicted by such individual's
conduct. The fact that a person registers and votes in one place is
important but not necessarily conclusive, especially if the facts
indicate that such individual did this merely to escape taxation in
some other place.
*

*

*

(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 in 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.
Section 105.20(e)(1) of the Regulations defines a permanent place of abode
as "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"
In order to create a change of domicile, both the intention to make a new
location a fixed and permanent home and actual residence at that location must
be present (Matter of Minsky v Tully, 78 AD2d 955. The substance of the matter
was stated long ago by the Court of Appeals in Matter of Newcomb (192 NY 238,
250):
Residence means living in a particular locality, but domicile means
living in that locality with intent to make it a fixed and permanent
home.
Residence simply requires bodily presence as an inhabitant
in a given place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile.
The existing domicile, whether of origin or selection, continues
until a new one is acquired and the burden of proof rests upon the
party who alleges a change. The question is one of fact rather than
law, and it frequently depends upon a variety of circumstances which
differ as widely as the peculiarities of individuals. . . In order
to acquire a new domicile there must be a union of residence and
intention. Residence without intention, or intention without

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TSB-A-92 (5) I
Income Tax
July 13, 1992

residence is of no avail.
Mere change of residence although
continued for a long time does not effect a change of domicile,
while a change of residence even for a short time with the intention
in good faith to change the domicile, has that effect. . .
Residence is necessary, for there can be no domicile without it, and
important as evidence, for it bears strongly upon intention, but not
controlling, for unless combined with intention, it cannot effect a
change of domicile. . .There must be a present, definite and honest
purpose to give up the old and take up the new place as the domicile
of the person whose status is under consideration. . .every human
being may select and make his own domicile, but the selection must
be followed by proper action. Motives are immaterial, except as
they indicate intention.
A change of domicile may be made through
caprice, whim or fancy, for business, health or pleasure, to secure
a change of climate, or change of laws, or for any reason whatever,
provided there is an absolute and fixed intention to abandon one and
acquire another and the acts of the person affected confirm the
intention. . .No pretense or deception can be practiced, for the
intention must be honest, the action genuine and the evidence to
establish both, clear and convincing. The animus manendi must be
actual with no animo revertendi.
. . .This discussion shows what an important and essential
bearing intention has upon domicile. It is always a distinct and
material fact to be established. Intention may be proved by acts
and by declarations connected with acts, but it is not thus limited
when it relates to mental attitude or to a subject governed by
choice.
These basic principles have been restated and refined in numerous cases by
a variety of courts in the years since they were laid down by the Court of
Appeals (see, Matter of Zinn v Tully, 54 NY2d 713, revg 77 AD2d 725; Matter of
Brunner v Hochman, 41 NY2d 917; Matter of Babbin v State Tax Commn, 67 AD2d 762,
affd 49 NY2d 846; Matter of Klein v State Tax Commn, 55 AD2d 982, affd 43 NY2d
812; Matter of Bodfish v Gallman, 50 AD2d 457; Matter of Nask, Dec Tax App Trib,
September 29, 1988, TSB-D-88(19)I).
The test of intent with respect to a purported new domicile has been stated
as "whether the place of habitation is the permanent home of a person, with the
range of sentiment, feeling and permanent association with it" (Matter of Bodfish
v Gallman, supra). Moves to other states in which permanent residences are
established do not necessarily provide clear and convincing evidence of an intent
to change one's domicile (Matter of Zinn v Tully, supra).
As previously stated, determinations of change of domicile are questions of
fact which depend on a variety of individualized circumstances (Matter of
Newcomb, supra, at 250). Questions of fact are not susceptible of determination
in an Advisory Opinion. An Advisory Opinion merely sets forth the applicability
of pertinent statutory and regulatory provisions to "a specific set of facts" Tax
Law, §171. Twenty-fourth; 20 NYCRR 2376.1(a). Therefore, a determination cannot
be made in an Advisory Opinion as to whether Taxpayer has changed his domicile
to Connecticut and is a nonresident of New York.

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TSB-A-92 (5) I
Income Tax
July 13, 1992

Accordingly, Petitioner should apply the rules as set forth in section
605(b) of the Tax Law and section 105.20 of the Income Tax Regulations as well
as pertinent case law to determine whether Taxpayer is domiciled and/or a
resident of New York State.

DATED: July 13, 1992

NOTE:

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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