Will a nonresident property owner become a New York domiciliary for personal income tax purposes just by registering to vote in a New York town?

Plain-English summary

The Town of Webb Property Owner's Association asked the Department of Taxation and Finance to address a concern among seasonal property owners: many nonresidents who own camps or residences in the town of Webb are domiciled outside New York, spend less than six months a year there, and close down their homes each fall, winter, and spring. The Association wanted to encourage these seasonal owners to register to vote locally, but the owners worried that registering to vote in New York might cause the Department to treat them as New York domiciliaries - and therefore New York residents - for personal income tax purposes.

The Department explained the two ways an individual can be a New York resident under Tax Law § 605(b)(1): being domiciled in New York, or not being domiciled in New York but maintaining a permanent place of abode in the state and spending more than 183 days there in the aggregate during the year. Domicile itself is the place a person intends as a permanent home, and a person can have only one domicile at a time; once established, it continues until the person moves elsewhere with the bona fide intent to make that new place a fixed and permanent home (20 NYCRR 105.20(d)).

In evaluating whether domicile has changed, the Department looks first to primary factors - active business involvement in the area, time spent at the residence, personal effects kept there, and family connections - because those factors provide the core basis for a domicile determination. Only if those primary factors leave the question open does the Department turn to other, less significant factors, which include the location of safe deposit boxes, where a driver's license is issued, and where the person is registered to vote. Registering and voting in one place is "important but not necessarily conclusive," especially if done merely to escape taxation.

Because a domicile determination depends on the totality of an individual's specific facts, the Department declined to say categorically whether registering to vote in Webb would or would not affect any particular seasonal owner's residency status. It emphasized that an Advisory Opinion can only apply the law to "a specified set of facts" (Tax Law § 171, Twenty-fourth; 20 NYCRR 2376.1(a)), and that if the primary domicile factors already show no change of domicile, voter registration will not by itself flip that conclusion.

What this means for you

Seasonal property owners considering voter registration

Registering to vote in a New York town is not, by itself, going to make you a New York domiciliary if your business ties, time spent, personal belongings, and family connections all point elsewhere. It only becomes relevant if those primary factors already leave your domicile in doubt - and even then it is just one factor among several, not a decisive one, unless the facts suggest you registered merely to avoid tax elsewhere.

Accountants and tax professionals advising seasonal clients

When assessing a client's domicile risk, work through the primary factors first (business involvement, time at the residence, location of personal effects, family connections). Only if those are inconclusive should secondary factors - voter registration, driver's license location, safe deposit box location - be weighed. Also remember the independent 183-day/permanent-place-of-abode test under Tax Law § 605(b)(1)(B) and 20 NYCRR 105.20(a)(2), which can make someone a statutory resident even without a New York domicile.

Common questions

Q: If I register to vote in a New York town, does that automatically make me a New York resident for income tax purposes?
A: No. Voter registration is a secondary factor considered only if the primary domicile factors leave the question open, and even then it isn't conclusive by itself.

Q: What are the "primary factors" the Department looks at first?
A: Active business involvement in the area, the amount of time spent at the residence, personal items or effects kept there, and family connections in the area.

Q: Did the Department give the Association a definite yes-or-no answer for its seasonal property owners?
A: No. Because domicile determinations depend on each individual's specific facts, and an Advisory Opinion only applies the law to a specified set of facts, the Department said whether voter registration would affect any particular person's residency is a factual matter it could not resolve in this opinion.

Q: Besides domicile, is there another way a seasonal owner could still be taxed as a New York resident?
A: Yes. Under Tax Law § 605(b)(1)(B) and 20 NYCRR 105.20(a)(2), someone who is not domiciled in New York can still be a statutory resident if they maintain a permanent place of abode in New York and spend more than 183 days of the year there in the aggregate. The facts described - seasonal residents closing their homes for months each year - suggest this test would not typically be met, but that is a separate, fact-specific inquiry.

Citations and references

• Tax Law § 605(b)(1) - definition of resident and nonresident individual, including the domicile and 183-day/permanent-place-of-abode tests
• 20 NYCRR 105.20(a) - general definition of a resident individual for personal income tax purposes
• 20 NYCRR 105.20(d) - definition of domicile and the standard for establishing a change of domicile
• 20 NYCRR 105.20(e) - definition of a permanent place of abode
• Tax Law § 171, Twenty-fourth, and 20 NYCRR 2376.1(a) - Advisory Opinions apply the law only to a specified set of facts
• Matter of Evans, Dec Tax App Trib, June 18, 1992, DTA No. 806515, affd 199 AD2d 840 - meaning of "maintain" and "permanent" in the permanent-place-of-abode context
• Matter of Newcomb, 192 NY 238 - residency determinations depend on the variety of circumstances peculiar to each individual
• Marcum & Kliegman, LLP, Adv Op Comm T&F, July 6, 2004, TSB-A-04(4)I - "substantially all of the taxable year" means a period exceeding 11 months
• 1940 Opns Atty Gen 245 - general definition of a permanent place of abode

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2008.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a08_2i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-08(2)I
Income Tax
March 19, 2008

Office of Tax Policy Analysis
Taxpayer Guidance Division
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I071029A

On October 29, 2007, a Petition for Advisory Opinion was received from Town of Webb
Property Owner’s Association, c\o Robert McCoy, PO Box 457, Old Forge, New York 13420.
The issue raised by Petitioner, Town of Webb Property Owner’s Association, is whether
an individual who is domiciled outside New York will be considered a resident of New York
State for personal income tax purposes as a result of registering to vote in New York.
Petitioner submitted the following facts as the basis for this Advisory Opinion.
Petitioner would like to encourage certain nonresident property owners to vote in the
town of Webb (Webb). According to Webb’s town clerk, the only requirement to vote in Webb
is that the individual must physically reside in the town for 30 days prior to registering to vote
and be at least 18 years of age.
Some seasonal residents who are domiciled outside New York are concerned what effect
registering to vote in Webb would have on their resident status. Most of these individuals do not
stay in New York for more than six months; each year they close down their residence or camp
for at least a month during the fall, winter, and spring months.
Applicable law and regulations
Section 605(b) of the Tax Law provides, in part:
(1) Resident individual. A resident individual means an individual:
(A) who is domiciled in this state . . . or
(B) 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, unless such individual is in active service in the armed forces of
the United States.
(2) Nonresident individual. A nonresident individual means an individual who is
not a resident or a part-year resident.
Section 105.20 of the Personal Income Tax Regulations (Regulations) defines a resident
individual and provides, in part:

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(a) General. An individual may be a resident of New York State for personal
income tax purposes, and taxable as a resident, even though such individual would not be
deemed a resident for other purposes. As used in this Subchapter, the term resident
individual includes:
(1) all persons domiciled in New York State, subject to the exceptions set forth in
subdivision (b) of this section; and
(2) any individual (other than an individual in active service in the Armed Forces
of the United States) who is not domiciled in New York State, but who maintains a
permanent place of abode for substantially all of the taxable year (generally, the entire
taxable year disregarding small portions of such year) in New York State and spends in
the aggregate more than 183 days of the taxable year in New York State.
*

*

*

(d) 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.
*

*

*

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(e) Permanent place of abode. (1) A permanent place of abode means 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. Furthermore, a barracks or any construction which does not
contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing,
etc., will generally not be deemed a permanent place of abode. Also, a place of abode,
whether in New York State or elsewhere, is not deemed permanent if it is maintained
only during a temporary stay for the accomplishment of a particular purpose. For
example, an individual domiciled in another state may be assigned to such individual's
employer's New York State office for a fixed and limited period, after which such
individual is to return to such individual's permanent location. If such an individual takes
an apartment in New York State during this period, such individual is not deemed a
resident, even though such individual spends more than 183 days of the taxable year in
New York State, because such individual's place of abode is not permanent. Such
individual will, of course, be taxable as a nonresident on such individual's income from
New York State sources, including such individual's salary or other compensation for
services performed in New York State. However, if such individual's assignment to such
individual's employer's New York State office is not for a fixed or limited period, such
individual's New York State apartment will be deemed a permanent place of abode and
such individual will be a resident for New York State personal income tax purposes if
such individual spends more than 183 days of the year in New York State. The 183-day
rule applies only to taxpayers who are not domiciled in New York State.
Opinion
Pursuant to section 605(b)(1) of the Tax Law, a resident individual means an individual
who is domiciled in New York or one who is not domiciled in New York but maintains a
permanent place of abode in New York and spends in the aggregate more than 183 days of the
taxable year in the State, unless the individual is in active service in the Armed Forces of the
United States.
Domicile is the place where an individual maintains his or her fixed home (i.e., the place
that the individual intends to return whenever the individual is absent). An individual can have
only one domicile. If an individual has two or more homes, the individual’s domicile is the one
that such person regards and uses as his or her permanent home. See section 105.20(d) of the
Regulations.
A domicile once established continues until the individual moves to a new location with
an intention of making the new location a fixed and permanent home. To effect a change of
domicile, there must be an actual change in residence, coupled with the intent to abandon the
former domicile. See section 105.20(d)(2) of the Regulations. There are a number of factors that
are considered in the determination of whether an individual maintains a residence with the
intent to establish a domicile. Primary factors in determining an individual’s domicile are active

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business involvement in the area, time spent at the residence, personal items or effects kept at the
residence, and family connections in the area. These factors provide a basis for determining
domicile before information relating to other factors is considered. A domicile determination
cannot be made by examining only one side of a factor; nor can a decision be made by
examining only one factor. In addition to the primary factors, other factors can provide insight in
a domicile determination. Other factors to consider include, but are not limited to, physical
location of safe deposit boxes used for family valuables, location of the individual’s personal
driver’s license, and where the individual is registered to vote. While these other factors may be
less significant than some of the primary factors noted above because they are easily controlled
by the individual, the Tax Department will analyze all factors to determine an individual’s
domicile. If after analyzing the primary factors, the conclusion is that there is no change of
domicile, there is no need to consider the other factors. However, if after analyzing the primary
factors, there is still some question of domicile, the other factors will be considered.
While the location where a person is registered to vote is not a primary factor, it will be
considered if there is a question of domicile. On the other hand, if it is clear from an analysis of
the primary factors that a person is not domiciled in New York State, the fact that such person is
registered to vote in New York will not, by itself, cause such person to be domiciled in
New York. 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.
See section 105.20(d)(2) of the Regulations. Whether registering to vote in New York will be
conclusive to the Department’s determination of a particular individual’s domicile is a factual
matter that is not susceptible of determination in this Advisory Opinion.
An individual who is not domiciled in New York may be considered a resident of
New York if he or she maintains a permanent place of abode in New York for substantially all of
the taxable year and spends in the aggregate more than 183 days of the taxable year in
New York. See section 605(b)(1)(B) of the Tax Law and section 105.20(a)(2) of the Regulations.
For this purpose, substantially all of the taxable year means a period exceeding 11 months. See
Marcum & Kliegman, LLP, Adv Op Comm T&F, July 6, 2004, TSB-A-04(4)I.
The words “maintain” and “permanent” are not limited to any particular usage but,
instead, may apply to a variety of circumstances (Matter of Evans, Dec Tax App Trib, June 18,
1992, DTA No. 806515, affd 199 AD2d 840). The Tribunal stated in Evans that “one maintains a
place of abode by doing whatever is necessary to continue one’s living arrangements in a
particular dwelling place.” The Tribunal further stated that “the permanence of a dwelling place
... cannot be limited to circumstances which establish a property right in the dwelling place.
Permanence, in this context, must encompass the physical aspects of the dwelling place as well
as the individual’s relationship to the place.” In general, a permanent place of abode means “an
abiding place maintained by a person with such degree of continuity as to be considered
permanent.” (1940 Opns Atty Gen 245)
Determinations of a taxpayer’s status as a resident individual for purposes of personal
income tax have long been based on the principle that the result “frequently depends on a variety

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of circumstances, which differ as widely as the peculiarities of individuals” (Matter of Newcomb,
192 NY 238).
Therefore, whether an individual will be considered a resident of New York as a result of
registering to vote in New York cannot be determined in this Advisory Opinion. An Advisory
Opinion merely sets forth the applicability of pertinent statutory and regulatory provisions to “a
specified set of facts” (Tax Law, §171. Twenty-fourth; 20 NYCRR 2376.1(a)).

DATED: March 19, 2008

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Taxpayer Guidance Division

An Advisory Opinion is issued at the request of a person or entity. It is
limited to the facts set forth therein and is binding on the Department only
with respect to the person or entity to whom it is issued and only if the
person or entity fully and accurately describes all relevant facts. An
Advisory Opinion is based on the law, regulations, and Department
policies in effect as of the date the Opinion is issued or for the specific
time period at issue in the Opinion.