If I permanently move out of New York but keep my old New York home and still spend 45 to 90 days a year there, has my domicile changed to my new state?

Plain-English summary

Kenneth Springer had lived in and been domiciled in Westchester County, New York, but permanently relocated to a home in West Palm Beach, Florida, effective April 1, 1992 - a home that had previously been his second home. The move was driven by his business: Springer was the majority shareholder and a key executive of two closely held S corporations that reincorporated from New York to Florida and moved their operations there, ending their New York business activity entirely.

Springer kept ownership of his former Westchester residence rather than selling it, because the real estate market was depressed at the time. The house sits empty most of the year, but he and his spouse still use it for roughly 45 to 90 days annually, mostly in the summer, to visit family and friends in the New York area. He asked the Department whether this arrangement - a permanent move to Florida while retaining and periodically using his old New York home - meant he had successfully changed his domicile away from New York.

The Department declined to answer that question directly. Under Tax Law § 171, Twenty-fourth and 20 NYCRR 2376.1(a), an Advisory Opinion can only apply tax law and regulations to a given set of facts - it cannot resolve a disputed factual question, and whether someone's domicile has actually changed is exactly that: a question of fact under long-standing case law (Matter of Newcomb). Instead, the opinion walks through the full legal framework: Tax Law § 605(b)(1)'s two ways to be a New York resident (domicile, or statutory residency based on a permanent place of abode plus more than 183 days in the state), the regulatory definition of domicile as the place someone intends as their true, permanent home until they establish a new one with both bona fide intent and actual residence, and the "camp or cottage" carve-out from "permanent place of abode" for a dwelling used only for vacations. Citing Newcomb, Matter of Zinn v Tully, and Matter of Bodfish v Gallman, the Department explains that moving to and living in a new state doesn't by itself prove an intent to abandon the old domicile, and that continuing to keep a permanent place of abode in New York is just one relevant factor in the domicile analysis, not an automatic disqualifier. Springer was left to apply this test to his own facts to determine whether he is domiciled, or otherwise a resident, of New York.

What this means for you

People who permanently relocate but keep a New York home

Moving out of state for good and living there full time is strong evidence of a new domicile, but it is not automatically conclusive if you retain a permanent place of abode in New York and still spend meaningful time there. The Department (and, ultimately, a court or the Division of Tax Appeals) will weigh the totality of your intent and conduct - where you vote, bank, hold licenses, keep family ties, and more - not just the fact that you bought or kept a house somewhere else. This opinion shows the Department will not pre-clear that factual question for you in an Advisory Opinion; you bear the burden of establishing the change if it's ever challenged.

Business owners whose company relocation drives a personal move

A corporate relocation - like the reincorporation and physical move of Springer's two S corporations from New York to Florida - can be a strong, credible reason for your own personal move, which helps show genuine intent rather than a tax-motivated formality. But the underlying domicile test doesn't change: you still need both the intent to make the new location your fixed, permanent home and actual residence there, and keeping your old New York home (even for legitimate reasons like a depressed local market) is a fact that will be weighed against you, even if it's not dispositive on its own.

Accountants and tax professionals advising clients on a domicile change

Don't expect an Advisory Opinion to bless a client's domicile change - the Department treats that determination as a question of fact outside its Advisory Opinion authority under Tax Law § 171, Twenty-fourth and 20 NYCRR 2376.1(a). Build the file instead: document the client's intent (closing of NY business ties, permanent living arrangements in the new state) and actual residence there, and be aware that occasional-use retention of the old New York residence (here, 45-90 days a year, well under half the year) is treated as only one factor in a multi-factor test, not treated the same as full-time year-round use. Note also this opinion doesn't address the separate 183-day statutory-residency test in any depth, since it never got past the threshold domicile question.

Common questions

Q: Did the Department rule that Springer successfully changed his domicile to Florida?
A: No. The Department expressly declined to decide that question, explaining that whether a taxpayer has changed domicile 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 given facts, not resolve factual disputes. It laid out the applicable legal test and left Springer to apply it himself.

Q: What is the legal test for a change of domicile in New York?
A: Under Reg. § 105.20(d) and cases like Matter of Newcomb, a change of domicile requires two things together: a bona fide intent to make the new location your fixed, permanent home, and actual residence there. Neither alone is enough - "residence without intention, or intention without residence is of no avail." The person claiming the domicile changed bears the burden of proving it, and mere temporary-purpose moves don't count.

Q: Does keeping my old New York home automatically mean I'm still a New York domiciliary?
A: No. The opinion states that continued maintenance of a permanent place of abode in New York is "one factor" relevant to the domicile determination - not dispositive by itself. It has to be weighed along with all the other facts about your intent and conduct.

Q: What is a "permanent place of abode," and does the "camp or cottage" exception help Springer?
A: Reg. § 105.20(e)(1) defines a permanent place of abode as a dwelling permanently maintained by the taxpayer, but excludes "a mere camp or cottage, which is suitable and used only for vacations." This opinion mentions that definition as background law but never applies it to Springer's facts, because the Department never got past the threshold domicile question - and in any event, Springer's Westchester house was his full-time former primary residence, not a vacation-only camp or cottage, so the exception likely wouldn't have applied even if reached.

Q: Does this opinion address the separate 183-day statutory residency test?
A: Only in passing, as background on Tax Law § 605(b)(1). The opinion doesn't state how many total days Springer spends in New York each year (only that he uses the Westchester house 45-90 days annually) and doesn't analyze statutory residency in depth, because the domicile question was the threshold issue the Department focused on.

Citations and references

• Tax Law § 605(b)(1) - defines "resident individual" as either domiciled in New York (unless no permanent NY abode, a permanent abode elsewhere, and 30 days or less in NY) or a statutory resident (permanent NY abode plus more than 183 days in NY despite domicile elsewhere)
• Reg. § 105.20(d) - domicile is the place intended as one's permanent home; continues until a new one is established with bona fide intent and actual residence; declarations given weight but not conclusive if contradicted by conduct
• Reg. § 105.20(e)(1) - defines "permanent place of abode," excluding a mere camp or cottage suitable and used only for vacations
• Tax Law § 171, Twenty-fourth; 20 NYCRR 2376.1(a) - Advisory Opinions apply law to a specific set of facts and cannot resolve questions of fact
• Matter of Newcomb, 192 NY 238, 250 - foundational case: domicile requires union of residence and intent; burden rests on the party alleging a change; the question is one of fact
• Matter of Minsky v Tully, 78 AD2d 955 - a change of domicile requires both intent to make the new location a fixed, permanent home and actual residence there
• Matter of Zinn v Tully, 54 NY2d 713, revg 77 AD2d 725 - establishing a new permanent residence elsewhere doesn't necessarily provide clear and convincing evidence of intent to change domicile
• Matter of Bodfish v Gallman, 50 AD2d 457 - the test of intent is whether the new place is "the permanent home... with the range of sentiment, feeling and permanent association with it"

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1993.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a93_1i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-93 (1) I
Income Tax
February 5, 1993

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

PETITION NO. I930105A

On January 5, 1993, a Petition for Advisory Opinion was received from
Kenneth Springer, 1836 12th Fairway, West Palm Beach, Florida 33411.
The issue raised by Petitioner, Kenneth Springer, is whether he changed his
domicile when he permanently relocated outside New York, even though he continues
to maintain a permanent place of abode in New York.
Petitioner has permanently relocated to Florida effective April 1, 1992.
Petitioner's move to Florida has been necessitated by the permanent relocation
of his two closely held S corporations, in which Petitioner is a majority
shareholder and key executive of each. The two corporations, which formerly were
incorporated in New York, were reincorporated in Florida as part of the
relocation and will no longer be engaged in business activity in New York.
Petitioner is presently living in a home in Florida, which prior to the
move was his second home, as he was domiciled and resided in a home in
Westchester County before the move. He continues to retain ownership of his
former New York residence, due to the current state of the depressed real estate
market. The house will be unoccupied throughout much of the year, except for
occasional visits there by Petitioner and/or his spouse. It is anticipated that
Petitioner and his spouse will utilize the house for approximately 45 to 90 days
each year, principally during the summer months while visiting with family and
friends in the New York area.
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 provides, in pertinent part, as follows:
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.
(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
TP-9 (9/88)

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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
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.
. . .
(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.
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 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

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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 Gatlman, 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). The continued maintenance of a permanent place of abode
in New York is one factor that may be considered in making such a determination.
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 Petitioner has changed his domicile to Florida.

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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 he is domiciled and/or is a resident of New York
State.

DATED: February 5, 1993

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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