Robert F. Abend, Jr. asked whether living aboard a sailboat that will never enter New York State - while maintaining no New York abode and spending no more than 30 days a year in the state - would establish a permanent place of abode elsewhere and change his domicile away from New York for personal income tax purposes.

Plain-English summary

The petition in this ruling was received from Norbert F. Abend, Jr., but the opinion's own issue statement and analysis refer to the petitioner throughout as "Robert F. Abend, Jr." - the ruling text names him slightly differently in these two places, and this summary follows the operative "Robert F. Abend, Jr." reference used in the issue statement and analysis, without speculating on the discrepancy.

Petitioner was in the process of buying a sailboat on which he and his family planned to live full-time, cruising the southern US east coast, the Bahamas, the Caribbean, and similar waters. The boat would never enter New York State. Petitioner would not maintain a New York permanent place of abode and would not spend more than 30 days a year in New York. He argued that the boat itself would become his new permanent living place - in effect, an attempt to give up New York domicile and become a nonresident.

The Department disagreed and ruled that Petitioner and his family remain New York domiciliaries and residents. Under Income Tax Regs § 102.2(d), a domicile once established continues until a person actually moves to a new location with the bona fide intent to make it a fixed, permanent home; a move intended as temporary doesn't change domicile, and the burden is on the person claiming a change to prove the required intent. Caselaw addressing floating homes specifically cuts against Petitioner: in Starer v. Gallman, a merchant seaman living in a ship's stateroom could not be considered a resident of the home port city, and in Matter of Robert G. Allan, Sr. and Cecelia Allan (TSB-H-80(304)I), the Tax Commission found no domicile change where petitioners "moved" onto a yacht berthed in a leased Florida marina slip.

The general test for a domicile change, from Babbin v. State Tax Commission, requires both an intent to give up the old domicile and take up a new one, plus actual acquisition of a new residence in the new locality. Intent is measured, per Bodfish v. Gallman, by whether the new place of habitation carries "the range of sentiment, feeling and permanent association" of a true home. The Department found that even conceding Petitioner intended to abandon his New York domicile, living aboard a sailboat - whether at sea or docked - doesn't evidence that kind of attachment to any single new place, because the boat itself moves among the US coast, the Bahamas, and the Caribbean rather than sitting in one fixed location. So no new domicile was established anywhere, and the old New York domicile persisted.

Separately, the Department addressed the statutory-nonresident test in Tax Law § 605(b)(1), which lets a New York domiciliary be treated as a nonresident if he maintains no New York permanent abode, maintains a permanent abode elsewhere, and spends 30 days or fewer per year in New York. Petitioner failed this test too, because living aboard the sailboat did not constitute maintaining "a permanent place of abode elsewhere" under Income Tax Regs § 102.2(e) - the same lack of a fixed, sentiment-anchored home that defeated his domicile argument also meant the boat wasn't a qualifying permanent abode. Bottom line: Petitioner and his family remain full New York residents, taxable on all their income, for as long as they continue living aboard the sailboat.

What this means for you

People trying to establish a domicile change by living aboard a boat or yacht

Simply moving onto a boat - even one that never enters New York and spends all its time cruising other states, the Bahamas, or the Caribbean - does not by itself change your domicile or create a "permanent place of abode" elsewhere. New York looks for a fixed, sentiment-anchored home in a specific new location; a vessel that moves among multiple ports or regions doesn't supply that. Absent a stationary new residence you actually intend as permanent, your prior domicile continues even if you've genuinely abandoned any intent to keep living in New York.

Taxpayers trying to escape NY residency without settling elsewhere

This opinion is a useful warning for anyone trying to shed New York tax residency through a mobile or unconventional living arrangement rather than by establishing a concrete new home. Both the domicile test (Regs § 102.2(d)) and the statutory-nonresident test (Tax Law § 605(b)(1)) require more than avoiding New York - they require affirmatively establishing a permanent place of abode somewhere else. Spending fewer than 30 days a year in New York and never bringing your boat into the state isn't enough on its own if you haven't put down roots anywhere new.

Tax preparers evaluating a client's domicile-change claim

When a client claims a domicile change, look for actual acquisition of a fixed new residence carrying real sentiment, feeling, and permanent association - not just an intent to leave New York or a mobile living arrangement. The burden of proof is on the taxpayer, and declarations of intent (voter registration, mailing address, etc.) are given weight but aren't conclusive if contradicted by the taxpayer's actual conduct, especially where the facts suggest the move is aimed at avoiding tax rather than genuinely relocating.

Common questions

Q: Can I stop being a NY resident just by living on a boat that's never in NY?
A: Not on that basis alone. The Department found that living aboard a sailboat - even one that spends all its time outside New York and involves fewer than 30 days a year physically present in the state - doesn't establish a new domicile or a permanent place of abode elsewhere, because a boat that moves among different waters isn't a fixed location one can be domiciled in or maintain a permanent home in. Without a new fixed residence, the old New York domicile continues, and you remain a full New York resident taxable on all your income.

Q: What's the difference between "domicile" and "permanent place of abode"?
A: Domicile (Income Tax Regs § 102.2(d)) is about intent and attachment - the one place you consider your permanent home and to which you intend to return. A "permanent place of abode" (Regs § 102.2(e)) is a physical dwelling permanently maintained by the taxpayer, excluding things like vacation cottages or bare-bones bachelor quarters without cooking or bathing facilities. The two concepts interact: a New York domiciliary who maintains no NY abode, maintains a permanent abode elsewhere, and spends 30 days or fewer a year in NY can be treated as a nonresident under Tax Law § 605(b)(1) - but only if that "elsewhere" abode is truly permanent, which is exactly what Petitioner's boat failed to establish here.

Q: Why didn't the boat qualify as a "permanent place of abode" even though Petitioner lived there full-time?
A: The regulations and caselaw look for a fixed dwelling carrying "the range of sentiment, feeling and permanent association" of a true home (Bodfish v. Gallman). A boat that cruises between the US east coast, the Bahamas, and the Caribbean doesn't stay in one place, so it can't anchor that kind of attachment to a specific new location. The Department also pointed to Starer v. Gallman (a merchant seaman's shipboard stateroom isn't a residence in the home port) and Matter of Robert G. Allan, Sr. and Cecelia Allan (no domicile change from moving onto a yacht berthed in a Florida marina slip) as directly analogous precedent.

Q: Does it matter that Petitioner would spend no more than 30 days a year in New York and the boat would never enter the state?
A: Those facts matter for the statutory-nonresident test under Tax Law § 605(b)(1), but they're not enough by themselves. That test requires the taxpayer to also maintain "a permanent place of abode elsewhere" - and since the boat didn't qualify as a permanent abode for the same reasons it didn't establish a new domicile, Petitioner failed that requirement too. Staying out of New York and avoiding a New York abode doesn't help if you haven't established a genuine permanent home somewhere else.

Q: Who has the burden of proving a domicile change, and what evidence counts?
A: The burden is on the person asserting the change (Babbin v. State Tax Commission), who must show both an intent to give up the old domicile and take up a new one, plus actual acquisition of a new residence in the new locality. Declarations of intent - such as voter registration - are given weight but aren't conclusive if contradicted by conduct, particularly where the facts suggest the change was made merely to escape taxation (Income Tax Regs § 102.2(d)).

Citations and references

• Income Tax Regs § 102.2(d) - domicile is the place an individual intends as a permanent home; once established, it continues until an actual move with bona fide intent to make the new location permanent; the burden of proving a change rests on whoever asserts it
• Income Tax Regs § 102.2(e) - a "permanent place of abode" is a dwelling permanently maintained by the taxpayer, excluding vacation camps/cottages and bachelor-type quarters lacking normal dwelling facilities; an abode maintained only for a temporary, fixed-period purpose is not "permanent"
• Tax Law § 605(b)(1) - a New York domiciliary is treated as a nonresident only if he maintains no New York permanent abode, maintains a permanent abode elsewhere, and spends 30 days or fewer per year in New York
• Starer v. Gallman, 50 AD2d 28 - a merchant seaman living in a ship's stateroom cannot, in law or logic, be considered a resident of the home port city
• Matter of Robert G. Allan, Sr. and Cecelia Allan, TSB-H-80(304)I - no domicile change where petitioners "moved" onto a yacht berthed in a leased Florida marina slip
• Babbin v. State Tax Commission, 67 AD2d 762 - a domicile change requires both intent to abandon the old domicile and actual acquisition of a new residence in the new locality
• Bodfish v. Gallman, 50 AD2d 457, 458 - intent to change domicile is measured by whether the new place of habitation carries the range of sentiment, feeling, and permanent association of a true home

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1989.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a89_7i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-89 (7) I
Income Tax
September 15, 1989

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I890512A

On May 12, 1989, a Petition for Advisory Opinion was received from Norbert F. Abend, Jr.
205 S. Townsend Street, Syracuse, New York 13202.
The issue raised is whether Petitioner, Robert F. Abend, Jr.'s, living aboard a boat outside
New York State constitutes a permanent place of abode for determining domicile for personal
income tax purposes under Article 22 of the Tax Law.
Petitioner is in the process of purchasing a sailboat upon which he and his family will live.
The boat will be used on the southern east coast of the United States, the Bahamas, the Caribbean,
etc. The boat will never be present in New York State. Petitioner will not maintain a permanent
place of abode in New York State nor will he spend more than 30 days in New York State.
Petitioner contends that the boat will be the permanent living place.
Section 102.2(d) of the Income Tax Regulations defines domicile, in pertinent part, as
follows:
(1) Domicile, in general, is the place which an individual
intends to be his permanent home-the place to which he intends to
return whenever he may be absent.
(2) A domicile once established continues until the person in
question moves to a new location with the bona fide intention of
making his 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 his 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, his declarations will be given due weight, but
they will not be conclusive if they are contradicted by his conduct.
The fact that a person registers and votes in one place is important but
not necessarily conclusive, especially if the facts indicate that he did
this merely to escape taxation in some other place.
. . .
(4) A person can have only one domicile ....
Section 102.2 (e) of the Income Tax Regulations defines permanent place of abode, in
pertinent part, as follows:

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TSB-A-89 (7) I
Income Tax
September 15, 1989
(1) A "permanent place of abode" means a dwelling place
permanently maintained by the taxpayer, whether or not owned by
him, and will generally include a dwelling place owned or leased by
his or her 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 only
contains bachelor-type quarters but 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 his
employer's New York State office for a fixed and limited period, after
which he is to return to his permanent location. If such an individual
takes an apartment in New York State during this period, he is not
deemed a resident, even though he spends more than 183 days of the
taxable year in New York State, because his place of abode is not
permanent. He will, of course, be taxable as a nonresident on his
income from New York State sources, including his salary or other
compensation for services performed in New York State. However,
if his assignment to his employer's New York State office is not for
a fixed and limited period, his New York State apartment will be
deemed a permanent place of abode and he will be a resident for New
York State personal income tax purposes if he 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.
In Starer v. Gallman et al., 50 AD2d 28, the court held that where a merchant seaman lives
in a stateroom on a ship, such stateroom can hardly, either in law or logic, be considered a residence
in the home port city.
In Matter of Robert G. Allan, Sr. and Cecelia Allan, St Tax Commn, August 6, 1980, TSB-H­
80-(304)-I, the Commission found that there was no change of domicile where among other things
the petitioners "moved" into their yacht berthed in a leased "slip" located in Florida.
To change one's domicile requires an intent to give up the old and to take up the new, coupled
with an actual acquisition of a new residence in the new locality. Babbin v. State Tax Commission,
67 AD2d 762. Absent such intent, the existing domicile will continue until a new one is established.
The burden of proof is on the Petitioner to prove that he had the required intention
to effect a change in domicile. Such intent is measured by "whether the place of habitation is the

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Income Tax
September 15, 1989
permanent home of a person, with the range of sentiment, feeling and permanent association with
it." Bodfish v. Gallman, 50 AD2d 457, 458. Even if it were to be conceded that Petitioner
evidenced an intent to abandon his New York domicile, by living aboard his sailboat, whether at sea
or docked at port, Petitioner will not have evidenced an intent to take up a new residence to which
he has attached the full range of sentiment, feeling and permanent association required to establish
a new domicile. Accordingly, Petitioner and his family will continue to be domiciliaries of New
York State.
Furthermore, section 605(b)(1) of the Tax Law provides that a resident individual means an
individual who is domiciled in New York State, unless the individual maintains no permanent place
of abode in New York State, does maintain a permanent place of abode elsewhere, and spends in the
aggregate not more than 30 days of the taxable year in New York State. Based on the facts
presented, Petitioner's living aboard his sailboat will not constitute the maintenance of a permanent
place of abode. Therefore, Petitioner will not have met the requirements of section 605(b)(1) of the
Tax Law so as to be treated as a nonresident. Accordingly, Petitioner and his family will continue
to be residents of New York State for the taxable years they continue to live aboard the sailboat.

DATED: September 15, 1989

s/FRANK J. PUCCIA
Director
Technical Services Bureau

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