New York Advisory Opinion TSB-A-90 (4)I: Dabelstein, is whether her domicile will change as a result of marrying a nondomiciliary Army officer stationed in New York.

Plain-English summary

Edith M. Dabelstein, a New York domiciliary and resident who lives and works in New York, planned to marry an Army officer stationed at Ft. Drum, New York, who was domiciled in Pennsylvania and filed Pennsylvania resident returns. After marrying in 1990, the couple would live only in Army-provided housing at Ft. Drum for two years, then move to whichever post the Army sent them next, again living only in Army-provided quarters. In 1990 they expected three income streams: the husband's Army salary, the wife's salary from her New York employer, and investment income from a New York bank; after leaving New York, the bank interest would continue. Petitioner asked whether her domicile would change on marriage, whether she would still be a New York resident, what income would be taxable, and what returns the couple would need to file.

The Department held that her husband's own domicile did not change when he entered active military service - he remained domiciled in Pennsylvania even while stationed in New York, because federal law (echoed in Income Tax Regs § 102.2(d)(6)) provides that a servicemember doesn't lose or gain domicile in a state solely by being stationed there under orders. As for Petitioner, domicile law requires both the intent to make a new place a permanent home AND an actual move there before a domicile changes (Minsky v Tully; Matter of Newcomb); intent alone is not enough. Although spouses generally share the same domicile (Regs § 102.2(d)(5)), that principle still requires an actual change of residence to the new intended-permanent location. Because Petitioner would continue to actually live in New York (Ft. Drum is in New York State) for the initial two-year period, her domicile would NOT change on her marriage date - even though she now intended to eventually follow her husband wherever the Army sent him. The opinion notes her domicile might not change at all for as long as the couple kept moving between Army-provided quarters without ever establishing a new permanent home anywhere.

Because Petitioner would remain a New York domiciliary and resident, she would be taxed under Article 22 on all of her income (salary plus investment income) for as long as she continued to actually live in New York - unless she separately met the "statutory nonresident" tests in Regs § 102.2(b): either (1) no permanent New York abode, a permanent abode elsewhere, and no more than 30 days in New York for the year, or (2) the 548-consecutive-day/90-day foreign-presence test. If she met either test in a given year, she would be treated as a nonresident for that year and taxed only on New York-source income under Tax Law § 631 - her salary if still NY-connected, and her bank interest only to the extent connected with a New York business. Her husband, since he remained a nonresident (Pennsylvania domiciliary merely stationed in New York), owed no New York tax on his Army salary at all.

On the related question of whether Army-provided housing counts as a "permanent place of abode" (relevant to the statutory-nonresident test), the Department declined to decide that as a pure question of fact, which an Advisory Opinion cannot resolve under Tax Law § 171(24) and 20 NYCRR 901.1(a). It surveyed the relevant caselaw instead: living on base doesn't automatically mean no abode exists elsewhere (LaVigne v. State Tax Commission); a permanent abode requires maintaining a fixed dwelling over a significant time to create a well-settled physical connection (Flather v. Norberg, a Rhode Island case construing an identical statute); Bachelor Officer Quarters occupied about two years under permanent-change-of-station orders did count as a permanent abode regardless of who paid for the upkeep (Matter of Stewart A. Brazin); and a dwelling maintained by someone else for the taxpayer still counts as "maintained for him" (Rothfeld v. Graves). Finally, the opinion notes that under Tax Law § 651(b)(4), if one spouse is a resident and the other a nonresident, they must file separate New York returns with separate liabilities - unless they jointly elect to compute federal taxable income jointly and elect to be treated as if both were New York residents, which makes their New York liability joint and several.

What this means for you

Military families relocating to or from New York

Simply marrying someone stationed at a New York military post, or intending to follow a military spouse to future postings, does not by itself change your domicile. Under Regs §§ 102.2(d)(1)-(2) and cases like Minsky v Tully and Matter of Newcomb, a domicile change requires both the intent to make a new place permanent AND an actual move there. If you're a New York domiciliary who continues to physically live in New York (even in on-base military housing), your domicile - and your status as a taxable New York resident on all your income - does not change just because you now plan to eventually settle elsewhere. Conversely, a servicemember's own domicile is generally unaffected by being posted to New York under military orders (Regs § 102.2(d)(6)); being stationed at Ft. Drum doesn't make a Pennsylvania-domiciled officer a New York domiciliary, and his military salary stays outside New York's taxing reach as long as he remains a nonresident.

Spouses who retain different domiciles or residency status

A married couple can have one resident and one nonresident spouse for New York tax purposes at the same time, especially in military families where duty orders and civilian employment pull in different directions. The resident spouse is taxed under Article 22 on all income; the nonresident spouse is taxed (if at all) only on New York-source income determined under Tax Law § 631. A domiciled spouse who never actually leaves New York remains a resident regardless of intent to relocate in the future - but that same domiciled spouse could still become a "statutory nonresident" for a given tax year by independently satisfying the Regs § 102.2(b) tests (the 30-day/no-abode test or the 548-day foreign-presence test), even without a domicile change.

Tax preparers handling mixed resident/nonresident married couples

Watch for the filing-status trap in Tax Law § 651(b)(4): where one spouse is a resident and the other a nonresident, New York generally requires separate returns with separate liabilities, unless the couple affirmatively elects to compute federal taxable income jointly and elects to be treated as if both were residents (which then makes New York liability joint and several). Also flag that whether on-base military housing counts as a "permanent place of abode" is a fact-intensive inquiry - factors include how long the quarters were occupied, who maintained them, and whether the assignment was permanent or merely temporary (compare Matter of Stewart A. Brazin's two-year Bachelor Officer Quarters, which qualified, against a short-term or clearly temporary posting, which might not).

Common questions

Q: Does marrying someone domiciled in another state automatically change my own domicile?
A: No. Regs § 102.2(d)(5) says spouses generally share the same domicile, but that still requires an actual change of residence to a new intended-permanent location - intent to eventually relocate is not enough on its own. In this opinion, Petitioner's domicile did not change on her marriage date because she kept actually living in New York; her domicile might not change at all as long as the couple never establishes a new permanent home anywhere.

Q: Does living in on-base military housing count as a "permanent place of abode"?
A: It depends on the facts, and the Department declined to decide that question in the abstract (Tax Law § 171(24); 20 NYCRR 901.1(a)). Living on or off base isn't itself determinative (LaVigne v. State Tax Commission). Relevant factors include how long the quarters were occupied and maintained and whether the assignment was temporary or more open-ended; Bachelor Officer Quarters occupied about two years under permanent-change-of-station orders were found to be a permanent abode in Matter of Stewart A. Brazin, and it doesn't matter whether the government or the individual paid for upkeep, since a place maintained by someone else "for" the taxpayer still counts (Rothfeld v. Graves).

Q: If my spouse is a nonresident and I'm a resident, do we have to file separate New York returns?
A: Generally yes - Tax Law § 651(b)(4) requires separate returns with separate tax liabilities when one spouse is a resident and the other a nonresident. The exception is if both spouses determine their federal taxable income jointly and jointly elect to be treated as if both were New York residents; in that case their New York liability becomes joint and several (subject to certain innocent-spouse-type exceptions).

Q: Can a New York domiciliary who never leaves the state still be treated as a nonresident for tax purposes?
A: Yes, but only by separately meeting one of the two "statutory nonresident" tests in Regs § 102.2(b), regardless of domicile: either maintaining no permanent New York abode, maintaining a permanent abode elsewhere, and spending no more than 30 days in New York for the year; or meeting the 548-consecutive-day foreign-presence test (at least 450 days abroad, no more than 90 days in New York, with related limits on time a spouse or minor children can be present at a NY abode). Petitioner remained a full New York resident because she did not meet either test - she continued to actually reside in New York.

Q: Is a servicemember's military salary taxable by New York if they're just stationed there?
A: No, not if the servicemember is domiciled elsewhere and not otherwise a New York resident. Regs § 102.2(d)(6) and Tax Law § 605(b)(1) (which carves active-duty armed forces members out of the 183-day permanent-abode test) mean a servicemember doesn't become a New York domiciliary or resident merely by being posted here under military orders. Here, the husband's Army salary was not subject to New York income tax because he remained a Pennsylvania domiciliary and New York nonresident throughout his Ft. Drum posting.

Citations and references

• Tax Law § 605(b)(1) - defines "resident individual"; carves active-duty armed forces members out of the 183-day permanent-abode residency test
• Income Tax Regs § 102.2(b) - the two alternative "statutory nonresident" tests available to an individual domiciled in New York
• Income Tax Regs § 102.2(d)(1) - domicile defined as the place intended as a permanent home
• Income Tax Regs § 102.2(d)(2) - a domicile continues until an actual move with bona fide permanent intent
• Income Tax Regs § 102.2(d)(5) - spouses generally share domicile, but an actual change of residence is still required to change it
• Income Tax Regs § 102.2(d)(6) - a servicemember's domicile is generally unaffected by being stationed elsewhere under military orders
• Income Tax Regs § 102.2(e) - definition of "permanent place of abode" and the multi-factor test for servicemembers
• Tax Law § 631 - New York-source income taxable to a nonresident
• Tax Law § 651(b)(4) - separate-return filing requirement (and joint-election exception) when spouses have different resident/nonresident status
• Tax Law § 171(24); 20 NYCRR 901.1(a) - limits of what an Advisory Opinion can resolve (law applied to stated facts, not open fact questions)
• Minsky v Tully, 78 AD2d 955 - domicile change requires both intent and actual residence at the new location
• Matter of Newcomb, 192 NY 238 (see 49 NY Jur 2d, Domicile and Residence, § 9) - residence without intent, or intent without residence, does not change domicile
• Richard W. LaVigne v. State Tax Commission, 38 AD2d 773 - living on or off a military base is not itself determinative of a permanent abode elsewhere
• Flather v. Norberg, 377 A2d 225 (RI) - permanent abode requires a fixed dwelling maintained over a significant time creating a well-settled physical connection
• Matter of Stewart A. Brazin, TSB-H-83(342)I - Bachelor Officer Quarters occupied about two years under PCS orders were a permanent place of abode
• Rothfeld v. Graves, 264 App Div 54 - a dwelling maintained by someone else for the taxpayer is still "maintained for him"

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1990.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a90_4i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-90 (4) I
Income Tax
February 15, 1990

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I891017A

On October 17, 1989, a Petition for Advisory Opinion was received from Edith M.
Dabelstein, 15 Howard Ave., Valhalla, New York 10595.
The issue raised by Petitioner, Edith M. Dabelstein, is whether her domicile will change as
a result of marrying a nondomiciliary Army officer stationed in New York. Related questions are
whether Petitioner will be considered a resident of New York, what income is taxable in New York
State and what returns will be required.
Petitioner lives and works in New York State. She is a resident of New York and files a New
York resident tax return. Petitioner's fiance is an Army officer on active duty stationed in New York
State for three years. He is a resident of Pennsylvania and files a Pennsylvania resident tax return.
Petitioner and her fiancé will be married in 1990. They will not maintain any residence other
than the one provided by the Army at Ft. Drum, New York. They will live in New York State for
two years. After that time, they will move to another Army post and will only maintain the residence
provided by the Army at the new post.
In 1990, Petitioner and her husband will have three sources of income: his salary from the
Army, her salary from a local New York company and investment income from a New York bank.
When they leave New York State, they will continue to have investment income from a New York
bank.
Section 605(b)(1) of the Tax Law defines the term "resident individual" as an individual:
(A) who is domiciled in this state, unless (i) he maintains no
permanent place of abode in this state, maintains a permanent place
of abode elsewhere, and spends in the aggregate not more than thirty
days of the taxable year 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.
Section 102.2(d)(1) of the Income Tax Regulations provides that, in general, domicile is the
place which an individual intends to be such individual's permanent home - the place to which the
individual intends to return whenever such individual may be absent.
TP-9 (9/88)

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Section 102.2(d)(2) of the Income Tax Regulations provides that a domicile once established
continues until the person 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.
It is well established that 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. (Minsky
v Tully, 78 AD2d 955.) Residence without intention or intention without residence, is of no avail.
(49 NY Jur 2d, Domicile and Residence, § 9; see Matter of Newcomb, 192 NY 238.)
Section 102.2(d)(6) of the Income Tax Regulations states:
Federal law provides in effect that for the purposes of taxation, a
serviceman is not deemed to have lost his residence or domicile in any state
solely by reason of being absent therefrom in compliance with military or
naval orders. Thus, such Federal law insures that a serviceman domiciled in
New York State would not be deemed a domiciliary for income tax purposes
in another state in which he is stationed. On the other hand, a serviceman
domiciled in another state who is stationed in New York State would not be
deemed a domiciliary, for personal income tax purposes, of New York State.
The rule is, generally speaking, that the domicile of a person is in no way
affected by service in the armed forces of this country. A change of domicile
has to be shown by facts which objectively manifest a voluntary intention to
make the new location a domicile. It is possible for a serviceman to change
his domicile; however, the requisite intent is difficult to prove.
Herein, pursuant to section 102.2(d)(6) of the Regulations, Petitioner's husband's domicile
did not change when he entered active military service and he continues to be domiciled in
Pennsylvania. Petitioner is now a domiciliary and resident of New York State. It is Petitioner's
intention to travel with her husband to whatever Army post the military sends him. Therefore, at the
time of her marriage, Petitioner will no longer intend that her domicile be located in New York State.
Section 102.2(d)(5) of the Regulations provides that generally the domicile of a husband and
wife is the same. However, to effect a change of domicile, an individual must have an actual change
of residence to the new location which is intended to be the individual's permanent home. Since
Petitioner will continue to live in New York State, Petitioner's domicile will not change on the date
of her marriage. In fact, it is possible that Petitioner's domicile will not change as long as Petitioner's
husband remains in active military service and they do not establish a new permanent home.
In addition, Petitioner will continue to be a resident of New York State as long she continues
to live in New York Sate. However, for any taxable year that Petitioner meets all of the requirements

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of section 102.2(b) of the Regulations, Petitioner will be considered a nonresident of New York for
such taxable year. Section 102.2(b) provides that:
Any person domiciled in New York State is a resident for income tax purposes for
a specific taxable year, unless for that year he satisfies all three of the requirements
in paragraph (1) or all three requirements in paragraph (2) of this subdivision:
(1) For a specific taxable year all three of the following requirements are met:
(i) he maintains no permanent place of abode inside New
York State during such year;
(ii) he maintains a permanent place of abode outside this
State during such entire year; and
(iii) he spends in the aggregate not more than 30 days of the
taxable year in this State; or
(2) For a specific taxable year beginning after December 31, 1977, all three
of the following requirements are met:
(i) within any period of 548 consecutive days he is present in
a foreign country or countries for at least 450 days;
(ii) during such period of 548 consecutive days he is not
present in New York Sate for more than 90 days, does not maintain
a permanent place of abode in this State at which his spouse (unless
such spouse is legally separated) or minor children are present for
more than 90 days; and
(iii) during any period of less than 12 months, which would
be treated as a separate taxable period pursuant to Part 148 of this
Subchapter, and which is contained within such period of 548
consecutive days, he is present in New York State for a number of
days which does not exceed an amount which bears the same ratio to
90 as the number of days contained in such period of less than 12
months bears to 548.
As long as an individual who is domiciled in New York State continues to meet the
requirements of either paragraph (1) or paragraph (2) of this subdivision, he will be
considered a nonresident of New York State for income tax purposes. However, if
for any taxable year he fails to meet those conditions, he will be subject to New York
State personal income tax as a resident for that year. Where an individual domiciled
in New York State claims to be a nonresident for any taxable year, the burden is upon
him to show that during that year he satisfied the requirements set forth in paragraph
(1) or paragraph (2) of this subdivision.

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Section 102.2(e) of the Income Tax Regulations provides that a permanent place of abode
means a dwelling place permanently maintained by the taxpayer, whether or not owned by the
taxpayer, and will generally include a dwelling place owned or leased by the taxpayer's spouse. The
determination of whether a serviceman maintains a permanent place of abode is not dependent
merely upon whether the serviceman lives on or off military base. This is only one of many factors
to be considered in determining whether a permanent place of abode is being maintained. Some of
the factors include the type and location of quarters occupied by the individual and the individual's
immediate family and how and by whom such quarters are maintained. Further, the maintenance of
a place of abode by a serviceman will not be considered permanent if it is maintained only during
a duty assignment of a limited or temporary nature.
In Richard W. LaVigne v. State Tax Commission, 38 AD2d 773, the issue raised was
whether a serviceman domiciled in New York but living on a military base outside the State is able
to maintain(s) a permanent place of abode elsewhere within the meaning of subdivision (a)(1) of
section 605 of the Tax Law.
The Supreme Court, Appellate Division held that "the determination of a permanent place of abode
outside the State should not depend merely upon whether petitioners lived on or off the military
base". Additionally, it held that it should be determined "whether other factors do or do not
establish that petitioners had a permanent place of abode outside the State".
In Flather v. Norberg, 377 AD2d 225, the Supreme Court of Rhode Island (where section 44­
30-5(a)(1) is identical in language to section 605(a)(1) of the Tax Law of New York State) held that:
In determining whether
individual has established
"permanent place of abode" in another state for purposes of
determining personal income tax liability, establishment of permanent
place of abode requires maintenance of fixed place of abode over
significant period of time to create well-settled physical connection
with given locality.
In Matter of Stewart A. Brazin, Dec St Tax Comm, January 24, 1983, TSB-H-83(342)I,
petitioner was assigned to the Naval Amphibious Base in Coronado, California under permanent
change of station orders. He remained at such duty station for approximately two years and lived
in the Bachelor Officer Quarters at his discretion for the full duration of his assignment. The
evidence submitted led to the inference that petitioner's Bachelor Officer Quarters did in fact
constitute a fixed place of abode which was maintained over a sufficiently significant period of time
to create a well-settled physical connection with that geographical area.
In order to determine whether a "permanent" place of abode is maintained, proper
construction of the word "maintain" must be ascertained.
In Rothfeld v. Graves, 264 App Div 54, where a claim for refund was denied after
an informal hearing on the ground that maintenance by someone else of a place of
abode, in which an incompetent domiciliary of the State of New York is cared for,

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was not sufficient compliance with the statute to relieve the petitioner from taxation, the court held
that:
It is certain that Alfred Rothfeld was domiciled in the State of
New York where his committee was appointed and where they lived.
It is also clear that he maintains no permanent place of abode within
the State but there is maintained for him (emphasis supplied) a
permanent place of abode without the State and that he does not
spend in the aggregate thirty days of a taxable year within the State.
He is entitled to the exemption that he claims and the determination
under review should be annulled.
In Matter of Stewart A. Brazin, supra., the petitioner has demonstrated that the Bachelor
Officer Quarters in which he lived during the taxable year were "kept effective" and "occupied" by
him during the entire taxable year. Whether the United States Government or the petitioner paid for
the upkeep of the quarters is immaterial as long as said quarters were maintained either by or for him.
Herein, the determination of whether Petitioner maintains a permanent place of abode in New
York State or elsewhere is a question of fact not susceptible of determination in an 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, subd. twenty-fourth; 20 NYCRR
901.1(a). For the taxable years that Petitioner is domiciled in New York State and is a New York
State resident, Petitioner's salary and investment income will be subject to tax under Article 22 of
the Tax Law. For the taxable years Petitioner is domiciled in New York State but meets the
requirements of section 102.2(b) of the Regulations, Petitioner will be considered a nonresident for
such years. As a nonresident, only New York source income is subject to tax under Article 22 of the
Tax Law. New York source income is determined pursuant to section 631 of the Tax Law. Under
section 631, if Petitioner's salary continues to be derived from or connected with New York sources
it would be subject to tax. However, Petitioner's investment income from a New York bank would
only be subject to tax to the extent that such income is from property employed in a business, trade,
profession or occupation carried on in this state.
It should be noted that since Petitioner's husband is an Army officer stationed in New York
but domiciled in Pennsylvania, he will not be considered a resident of New York for any taxable year
and his military salary would not be subject to New York State income tax.
Finally, section 651(b)(4) of the Tax Law provides as follows:
If either husband or wife is a resident and the other is a
nonresident, they shall file separate New York income tax returns on
separate forms, in which event their tax liabilities shall be separate,
unless such husband and wife determine their federal taxable income
jointly and both elect to determine their joint New York taxable

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income as if both were residents, in which event their tax liabilities
shall be joint and several except as provided in paragraphs five and
six of this subsection and in subsection (e) of section six hundred
eighty-five.

DATED: February 15, 1990

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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