When a New York City resident is about to take a U.S. Senate-confirmed executive-branch position and relocate to Washington, D.C., does his New York domicile change the moment the Senate confirms him, even though his family, home sale, and home purchase are all timed to that same event?

Subject

Whether a taxpayer changes his domicile from New York City to Washington, D.C. at the moment the United States Senate confirms his nomination to an executive-branch federal government position.

Plain-English summary

Gerard C. Pompilio, CPA, of Richard A. Eisner & Co., asked the Department on behalf of an unnamed client whether that taxpayer's domicile shifts from New York City to Washington, D.C. at the instant the U.S. Senate confirms his nomination to an executive-branch position. The taxpayer was currently domiciled in New York City, living in a Manhattan cooperative apartment with a vacation home in Suffolk County, and was an active New York City businessman awaiting confirmation.

Once confirmed, a cascade of events was set to occur, all timed to the confirmation itself: the taxpayer and his wife would close on the contracted sale of their NYC apartment and would not buy, rent, or occupy any New York City residence afterward; they would simultaneously close on a home already under contract in Washington, D.C., intended as their permanent residence (even though the government job itself might last only a period of years depending on future elections); and the taxpayer, who was already spending roughly five days a week in D.C. staying at a house he had years earlier gifted a life estate in to his mother and stepfather, would move into the new D.C. home full time. His wife and children would remain in New York City only until the school year ended in spring 1993, then relocate to D.C. schools. The family expected to spend much of that summer at the Suffolk County home - the taxpayer only on weekends - after which the family would live wholly in D.C., with rare New York trips for government or investment business. The taxpayer's business interests were also being wound down into passive investments: a general partnership interest he had already converted to a limited partnership interest upon retiring in 1991 would convert again, upon confirmation, into a fixed-rate subordinated debenture (a debt instrument, notwithstanding that a technical Treasury Regulation would still require it to be reported as a Schedule K-1 guaranteed payment and carried in a capital account). The petition also detailed a long list of other relocation indicia - moved personal effects, changed voter registration, moved bank and investment accounts, new auto registration and driver's licenses, new religious and social affiliations, new wills, new doctors and local professionals, and D.C.-address tax filings.

The Department declined to answer the timing question directly. It explained that Tax Law § 605(b)(1) taxes New York domiciliaries as residents (with a narrow exception for those who keep no New York abode, keep one elsewhere, and spend 30 days or fewer per year in New York), and separately taxes non-domiciliaries who keep a New York permanent place of abode and spend more than 183 days a year in the state as "statutory residents" regardless of domicile. Because the Tax Law itself does not define domicile, the Department turned to Reg. § 105.20(d): domicile is the place a person intends as a permanent home, and once established it continues until the person moves elsewhere with the bona fide intention of making that new place fixed and permanent - intention alone or residence alone is not enough, the burden of proving a change falls on whoever claims it, and the proof must be clear and convincing (citing Matter of Newcomb, Matter of Minsky v. Tully, and later cases like Matter of Zinn v. Tully and Matter of Bodfish v. Gallman). The Department also flagged that a "permanent place of abode" under Reg. § 105.20(e)(1) excludes a "mere camp or cottage" used only for vacations, which could bear on how the Suffolk County home factors into the analysis. Because determining if and when a domicile actually changes is a question of fact, not law, and Advisory Opinions can only apply the law to given facts (Tax Law § 171-Twenty-fourth; 20 NYCRR § 2376.1(a)), the Department told the taxpayer to apply this framework himself rather than ruling on the outcome.

What this means for you

Individuals relocating out of New York for a new job or appointment

If you're moving out of New York for work - even for a fixed-term government appointment, corporate transfer, or new job - don't assume your New York domicile ends automatically on the date of some triggering event (a confirmation, a start date, a closing). New York looks at both your intent to make the new place permanent AND whether you've actually taken up residence there, and it puts the burden of proving that combination on you. Selling your New York home, buying a home elsewhere, registering to vote elsewhere, and moving your professional and financial life are all relevant evidence, but no single fact - and no single date - controls. Keep in mind that even after your domicile changes, continuing to keep a New York vacation home and spending more than 183 days a year in the state can independently make you a New York statutory resident, regardless of domicile - though a "mere camp or cottage" used only for vacations doesn't count as a permanent place of abode for that purpose.

Tax professionals building a domicile-change record for a departing New York client

This opinion is a useful checklist of the evidence the Department and courts actually weigh: contracted sale of the old home timed against contracted purchase of the new one, actual physical presence patterns before and after the move, where the family's children go to school, where accounts, licenses, registrations, wills, and professional relationships are established, and whether any remaining New York property (like a vacation home) is used in a way that could itself trigger statutory residency. Because the Department will not pre-certify the timing of a domicile change in an Advisory Opinion - that determination is inherently factual - your job is to build a contemporaneous record (dated contracts, moving records, school enrollment, changed registrations) that lets your client demonstrate, if audited, that intent and actual residence lined up at a particular point, rather than relying on the Department (or a court) to simply pick the confirmation date, closing date, or any other single milestone.

Common questions

Q: Why didn't the Department just say "yes, domicile changes the moment the Senate confirms him"?
A: Because a change of domicile requires proof of both a bona fide intent to make the new location a fixed and permanent home and actual residence there (Matter of Minsky v. Tully; Matter of Newcomb). Whether and exactly when those two things line up is a factual question that depends on how events actually unfold, not something the Department can predetermine in an Advisory Opinion, which by statute can only apply the law to a given set of facts (Tax Law § 171-Twenty-fourth; 20 NYCRR § 2376.1(a)).

Q: What matters more - stating an intention to move, or actually living somewhere?
A: Both are required, and neither alone is enough. Under Reg. § 105.20(d) and Matter of Newcomb, "residence without intention, or intention without residence is of no avail." Declarations of intent (like the taxpayer's stated intention to move to D.C.) are given weight but are not conclusive if contradicted by conduct, and the person claiming the change must prove it by clear and convincing evidence.

Q: The taxpayer was already spending five days a week in Washington, D.C. before confirmation - doesn't that show his domicile already changed?
A: Not necessarily. Time spent somewhere is evidence of intent but isn't conclusive on its own (Reg. § 105.20(d)(4)), and Matter of Zinn v. Tully specifically holds that establishing a new permanent residence elsewhere doesn't by itself provide clear and convincing evidence of an intent to change domicile. The pre-confirmation D.C. time here was also framed as temporary - tied to a pending nomination, not yet a permanent move - which cuts against treating it as decisive.

Q: How does the Suffolk County vacation home affect the analysis?
A: It cuts both ways. On one hand, Reg. § 105.20(e)(1) says a "mere camp or cottage" used only for vacations isn't a permanent place of abode, which would keep it from creating statutory residency. On the other hand, the facts describe the family spending much of the summer there, which is more extensive use than a typical vacation cottage - and the Department noted that continued maintenance of a New York abode is one relevant factor in the overall domicile analysis. The opinion doesn't resolve which characterization applies; that, too, is left as a factual question.

Q: Does converting the taxpayer's limited partnership interest into a subordinated debenture matter to the domicile question?
A: It's part of the broader picture the Department considered (winding down active New York business involvement into passive investments), but it isn't itself a domicile factor - it goes to whether the taxpayer is retaining an active New York business presence. The debenture's classification as debt for state-law purposes, despite being reported as a Schedule K-1 guaranteed payment for federal tax purposes under Treasury Reg. § 1.704-1(b)(2)(iv)(e)(2), is a separate federal partnership-tax technicality rather than something the Department needed to resolve for the domicile question.

Citations and references

• Tax Law § 605(b)(1) - defines "resident individual" (domiciliaries, subject to a limited exception; and non-domiciliary statutory residents who keep a NY permanent place of abode and spend more than 183 days a year in the state)
• Tax Law § 171-Twenty-fourth; 20 NYCRR § 2376.1(a) - an Advisory Opinion can only apply the law to a specific set of facts and cannot resolve questions of fact
• Reg. § 105.20(d) - defines domicile as the place a person intends as a permanent home; once established, it continues until displaced by a bona fide intention to make a new place fixed and permanent, proven by the party alleging the change
• Reg. § 105.20(e)(1) - defines "permanent place of abode," excluding a mere camp or cottage used only for vacations
• Matter of Newcomb, 192 NY 238, 250 - the foundational formulation: domicile requires residence plus intent to make it permanent; burden on the party alleging change; motives are immaterial except as evidence of intent; proof must be clear and convincing
• Matter of Minsky v. Tully, 78 AD2d 955 - a change of domicile requires both the intent to make a new location a fixed and permanent home and actual residence there
• Matter of Zinn v. Tully, 54 NY2d 713 - establishing a new permanent residence elsewhere does not, by itself, provide clear and convincing evidence of intent to change domicile
• Matter of Bodfish v. Gallman, 50 AD2d 457 - the test of intent: whether the place of habitation is the permanent home, with the range of sentiment, feeling, and permanent association with it
• Matter of Brunner v. Hochman, 41 NY2d 917; Matter of Babbin v. State Tax Comm'n, 67 AD2d 762, aff'd 49 NY2d 846; Matter of Klein v. State Tax Comm'n, 55 AD2d 982, aff'd 43 NY2d 812; Matter of Nask, TSB-D-88(19)I - additional cases restating and refining the domicile intent-plus-residence test

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_4i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-93 (4) I
Income Tax
April 29, 1993

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

PETITION NO. I930317A

On March 17, 1993, a Petition for Advisory Opinion was received from Gerard
C. Pompilio, CPA, Richard A. Eisner & Co., 575 Madison Avenue, New York, New York
10022.
The issue raised by Petitioner, Gerard C. Pompilio, is whether a taxpayer
changes his domicile from New York City to Washington, D.C. at such time as the
United States Senate confirms his nomination to serve in the executive branch of
the United States government.
The taxpayer is married with two minor children and is currently domiciled
in New York City. Their current principal residence is a cooperative apartment
in New York City. They also own a vacation home in Suffolk County, New York.
The taxpayer is currently an active businessman in New York City, but will be
taking, upon United States Senate confirmation, a position in the executive
branch of the federal government.
The taxpayer and his wife have contracted to sell their New York City
apartment. The sale will close when the taxpayer is confirmed for the government
position. They will not purchase, rent or occupy any residence within New York
City after this sale.
The taxpayer and his wife have contracted to purchase a home in Washington,
D.C. The purchase will close when the taxpayer is confirmed for the government
position. This home will become their principal residence. They intend and
expect that this will permanently become their principal residence, although the
taxpayer's government position may only be for a period of years depending on
future presidential elections, and other factors not currently known. They have
no current intention to ever permanently return to New York.
The taxpayer will be moving into his permanent residence in Washington,
D.C. as soon as his confirmation is completed. He is presently in Washington,
D.C. for approximately five days a week. During such time he is residing at a
residence in Washington, D.C. which he purchased many years ago and then gifted
a life estate in such residence to his mother and step-father, who have been
residents of the Washington, D.C. area for their entire lifetimes and of the
District itself for a least five years.
The taxpayer's wife and children will remain in New York City until the
children's school year finishes in late spring of 1993. The children will then
be enrolled in a Washington, D.C. school for the 1993-1994 and future school
years.
The taxpayer's wife and children expect to spend much of the summer in
Suffolk County, New York. The taxpayer expects to spend only weekends in Suffolk
County during the summer months. Other than summers, the taxpayer and his family
TP-9 (9/88)

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will reside wholly in their Washington, D.C. residence.
The taxpayer may
occasionally be in New York City on short trips related to United States
government business and/or personal investment matters, but this is expected to
be rare.
It is the taxpayer's and his wife's intention to change their domicile from
New York State and City to Washington, D.C. The taxpayer was raised in the D.C.
area, although he has been domiciled in New York City for many years.
The taxpayer's business interests will be converted into investments. He
will no longer be actively involved in any New York business ventures. The
taxpayer was a general partner in an investment firm until his retirement in
1991. As a result of retirement, the taxpayer's general partnership interest was
converted into a limited partnership interest in accordance with the firm's
policies and procedures. Such limited partnership interest was entitled to only
a specified percentage return on capital, which increased slightly once a minimal
profit level for the firm was achieved (far less than the firm's experience has
been for- many years.) Upon the taxpayer's confirmation, his limited partnership
interest will be converted into a subordinated debenture. The debenture is a
debt obligation. It contains all the characteristics of a legal debt. The
debenture will pay interest at a fixed rate. No interest payments are contingent
upon, or determined by, profits of the firm. For federal income tax purposes,
however, the partnership will report the interest paid to the taxpayer as a
guaranteed payment on a federal partnership Schedule K-i, and will continue to
reflect the amount of the debenture in a capital account, solely as a result of
the technicalities of section 1.704-1(b)(2)(iv)(e)(2) of the Treasury
Regulations, which require the treatment described until the debenture is paid
off, notwithstanding its clear legal and tax status as debt.
The taxpayer's and his wife's personal effects, which are now in New York
City will be moved to Washington, D.C.
They will change their voting
registration to Washington, D.C., and they will actually vote there. Most of the
taxpayer's checking, savings and investment accounts will be changed to
Washington, D.C. They will change their automobile registration and insurance to
Washington, D.C. and they will acquire Washington, D.C. driver's licenses.
The taxpayer and his wife will establish new religious and social
affiliations in Washington, D.C. Their New York affiliations will be either
terminated or changed to nonresident membership. They do not have, and have
never had, burial plots. The taxpayers will execute new wills in Washington,
D.C.
The taxpayer and his wife will engage professionals (i.e., doctors,
dentists, attorneys) in Washington, D.C. They may also continue to use some
professionals, particularly accountants and perhaps some attorneys, in New York.
The taxpayer and his wife will send change of address notices to friends,
business colleagues, bank, credit card companies, etc. informing them of their
Washington, D.C. address.
Their newspaper, magazine, and periodical
subscriptions will be changed to Washington D.C. They will notify the Social
Security Administration of their change in address.
The taxpayer and his
Washington, D.C. address.

wife

will

file

tax

returns

based

upon

their

Section 605(b)(1) of the Tax Law defines a "resident individual" as an

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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 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.
. . .
(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

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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 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

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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 the taxpayer will change his domicile to
Washington D.C.
Accordingly, the taxpayer 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 will be domiciled and/or a resident
of New York State.

DATED: April 29, 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.