After moving away from New York and building a life in New Jersey for 14 years, does building a family home back in New York (where the taxpayer's spouse and children now live) mean the taxpayer has become domiciled in New York again for income tax purposes?

Plain-English summary

William V. Gotthardt grew up in New York, then served in the Marine Corps from 1976 to 1980, keeping New York as his primary residence while he married and started a family in the service. After his discharge in 1980, he took a job in New Jersey and stayed there ever since -- 14 years by the time of this petition. He and his wife rented a New Jersey apartment and both worked there from 1980 to 1986, treating New Jersey as their only residence and domicile and paying tax only to New Jersey.

In 1986, high New Jersey housing costs led the couple to build a house on land they already owned in New York. His wife and their four children moved into the New York house, while Gotthardt kept living with relatives in New Jersey near his job, commuting to the New York house periodically (a 2.5-to-3-hour, 133-mile trip) while working 48 hours a week in New Jersey. When his New Jersey relatives moved away in 1992, he started renting a room in a private New Jersey home near work, where he still lived at the time of the petition. He had held the same job for more than ten years, had no plans to relocate to New York given weak local job prospects, and expected the family to eventually sell or rent the New York house and reunite in New Jersey once the children finished college. His wife, who hadn't worked from 1986 to 1990, began working in New York in 1990, after which -- on his tax advisor's recommendation -- the couple started filing and paying joint tax to both New York and New Jersey.

Gotthardt asked the Department whether he is a resident domiciled in New York State. The Department declined to answer. It walked through the full legal framework: Tax Law § 605(b)(1) treats someone as a New York resident either because they are domiciled in New York, or -- independent of domicile -- because they maintain a permanent place of abode in New York and spend more than 183 days of the year there (the "statutory residency" test). Domicile itself isn't defined in the statute, but 20 NYCRR 105.20(d) defines it as the place a person intends as their true, permanent home, to which they intend to return whenever absent. A domicile persists until the person moves elsewhere with a bona fide intention of making the new place their permanent home; the burden of proving such a change falls on whoever claims it, and self-serving declarations (like voter registration) carry weight but aren't conclusive, especially if they look tax-motivated. The Department quoted at length from the seminal Court of Appeals decision in Matter of Newcomb, which requires a "union of residence and intention" proven by clear and convincing evidence, and cited a string of later cases refining that test (Minsky v Tully, Zinn v Tully, Brunner v Hochman, Babbin v State Tax Commn, Klein v State Tax Commn, Bodfish v Gallman, and Matter of Nask).

Having laid all of that out, the Department concluded that whether building and maintaining the New York house since 1986 revived Gotthardt's New York domicile is a genuinely disputed question of fact -- and questions of fact cannot be resolved in an Advisory Opinion, which is limited to applying law to an undisputed, stated set of facts (Tax Law § 171.Twenty-fourth; 20 NYCRR 2376.1(a)). So instead of an answer, the Department directed Gotthardt to apply § 605(b), § 105.20, and the cited case law to his own circumstances to work out the answer for himself.

What this means for you

Individuals who moved away from New York but kept family or property ties there

Moving out of New York and living there only a small fraction of each year does not automatically end your New York domicile, and it does not automatically preserve a new domicile either -- domicile turns on your intent, not just your travel schedule or where you sleep most nights. If you (or a spouse and children) later re-establish a home in New York while you continue to live and work elsewhere, that fact pattern can put your domicile genuinely back in play, exactly as it did for Gotthardt. The more the New York home looks like a true family home -- occupied year-round by immediate family, not a vacation camp or cottage -- the harder it becomes to argue it has no bearing on domicile. And even if you can show you remain domiciled elsewhere, you can still be taxed as a full New York resident under the separate 183-day statutory-residency rule if you maintain a New York permanent place of abode and personally spend more than 183 days a year in the state.

Accountants and tax professionals assessing domicile-change risk for a client

This opinion is a useful checklist of what New York actually weighs in a domicile dispute: the length of time the taxpayer intended a move to be permanent versus temporary; whether declarations like voter registration or a driver's license look genuine or tax-motivated; who lives in each home and how it's used; and whether maintaining a residence elsewhere (here, New Jersey) is undercut by building and funding a substantial family home in New York. Because the burden of proving a domicile change falls on whoever asserts it, and because the standard of proof is "clear and convincing," a client sitting on facts this close (14 years of out-of-state work and residence versus an 8-year-old, family-occupied New York house) should expect an audit position to be seriously contestable in either direction. Also flag the independent statutory-residency exposure: even a client who wins the domicile argument can still owe New York resident-level tax if they keep a permanent New York abode and cross 183 days in the state in a given year.

Common questions

Q: What is the difference between "domicile" and "residence" under New York's test?
A: Residence just means physically living somewhere. Domicile means living somewhere with the intent to make it your fixed, permanent home -- the place you intend to return to whenever you're away. As the Court of Appeals put it in Matter of Newcomb, acquiring a new domicile requires a "union of residence and intention"; residence without intention, or intention without residence, doesn't do it.

Q: Why wouldn't the Department just answer whether Gotthardt was domiciled in New York?
A: Because an Advisory Opinion can only apply the law to an agreed, undisputed set of facts (Tax Law § 171.Twenty-fourth; 20 NYCRR 2376.1(a)). Whether Gotthardt's 1986 New York house, combined with his ongoing New Jersey job and lodging, showed the requisite bona fide intent to make New York his permanent home again is a fact-intensive question the Department said it could not resolve in that format -- it isn't equipped to weigh disputed facts the way an audit or a hearing would.

Q: If Gotthardt is found NOT to be domiciled in New York, could he still owe New York resident tax?
A: Yes, under a completely separate rule. Tax Law § 605(b)(1) also makes someone a New York resident if they are not domiciled in New York but maintain a permanent place of abode in New York and spend more than 183 days of the year in the state. Domicile and statutory residency are two independent paths to the same "resident" tax result, and a taxpayer needs to clear both hurdles, not just one, to be sure they're taxed only as a nonresident.

Q: Does registering to vote, or otherwise formally declaring, New Jersey as his residence settle the domicile question in Gotthardt's favor?
A: Not by itself. Under 20 NYCRR 105.20(d), a taxpayer's own declarations (including voting registration) are given weight but are not conclusive, particularly where they appear to have been made mainly to avoid tax rather than to reflect where the person actually intends to make a permanent home.

Q: Does maintaining the New Jersey apartment/room this whole time guarantee Gotthardt kept his New Jersey domicile?
A: No. A person can have only one domicile, and it's whichever home they actually regard and use as their true permanent home -- not simply the one where they spend more nights. The regulation and Matter of Zinn v Tully both note that maintaining a residence in one place does not, by itself, prove an intent to abandon a domicile elsewhere; conversely here, building and using a substantial family home in New York for years is exactly the kind of fact that can support an argument that the old New York domicile was never really given up, or was later resumed.

Q: What would it take for Gotthardt to prove he kept his New Jersey domicile despite the New York house?
A: He would need clear and convincing evidence -- the standard set out in Matter of Newcomb -- that he never had a bona fide intention of making the New York house his own fixed, permanent home, and that his continued 14 years of New Jersey work, lodging, and day count reflect where he genuinely intends to live permanently. Because the burden falls on whoever claims a domicile (here, arguably a return to New York domicile, or continuation of New Jersey domicile) actually changed, the outcome depends heavily on how the specific facts -- who lives in the New York house, why it was built, and his own stated intentions -- are ultimately weighed.

Citations and references

• Tax Law § 605(b)(1) - defines "resident individual" as either domiciled in New York (with a narrow 30-day exception) or, independent of domicile, someone who maintains a New York permanent place of abode and spends more than 183 days of the year in the state
• 20 NYCRR 105.20(d) - defines domicile as the place a person intends as their permanent home, describes how a domicile persists until replaced by bona fide intent plus actual residence elsewhere, and notes declarations (e.g., voter registration) are relevant but not conclusive
• 20 NYCRR 105.20(e)(1) - defines "permanent place of abode" as a dwelling permanently maintained by the taxpayer (including one owned or leased by a spouse), excluding a mere vacation camp or cottage
• Tax Law § 171.Twenty-fourth and 20 NYCRR 2376.1(a) - an Advisory Opinion applies law to a stated set of facts and cannot adjudicate disputed questions of fact
• Matter of Newcomb, 192 NY 238 - the Court of Appeals' foundational discussion distinguishing residence from domicile and requiring a "union of residence and intention," proven by clear and convincing evidence
• Matter of Minsky v Tully, 78 AD2d 955 - a change of domicile requires both the intent to make a new location a fixed, permanent home and actual residence there
• Matter of Zinn v Tully, 54 NY2d 713 - establishing a permanent residence in a new place does not necessarily provide clear and convincing evidence of intent to change domicile
• 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 - later cases refining the domicile-intent test, including Bodfish's formulation of intent 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 Nask, TSB-D-88(19)I - Tax Appeals Tribunal decision cited among the domicile-change authorities

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1994.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a94_11i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-94 (11) I
Income Tax
August 16, 1994

Taxpayer Services Division
Technical Services Bureau
STATE 0F NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I940705B

On July 5, 1994, a Petition for Advisory Opinion was received from William
V. Gotthardt, RD #1, Box #5, Hancock, New York 13783.
The issue raised by Petitioner, William V. Gotthardt, is whether he is
considered a resident domiciled in New York State.
Petitioner is originally from New York. Petitioner joined the Marine Corp
in 1976 and served until 1980. During this time Petitioner kept New York as his
primary residence. While in the service Petitioner married and started a family.
After leaving the service in 1980, Petitioner took a job in New Jersey.
Petitioner has worked in New Jersey and has had a place of abode in New Jersey
for the last 14 years. Petitioner has spent 240 days a year in New Jersey for
the past 14 years. Petitioner has claimed New Jersey as his state of residence
and domicile for these years.
In 1980, Petitioner and his family rented an apartment in New Jersey and
he and his wife both worked in New Jersey until 1986. For those six years
Petitioner and his wife both claimed New Jersey as their primary residence and
paid state tax only to New Jersey.
In 1986, due to the high cost of housing in New Jersey, Petitioner and his
wife built a house on land they owned in New York. Petitioner's wife and his four
children moved into the house in New York while Petitioner stayed with relatives
and continued to work in New Jersey.
From 1986, Petitioner lived with his
relatives and worked in New Jersey five days a week per year until 1992.
Petitioner normally works 48 hours per week and his house in New York is about
2.5 to 3 hours away (133 miles). In 1992, Petitioner's relatives in New Jersey
moved away and Petitioner started renting a room in a private home near his work
place in New Jersey. Petitioner still lives there.
Petitioner has worked at the same building for more than 10 years so
Petitioner's job is not a short term situation. Petitioner is happy with his job
and is used to this type of living so there is no immediate plan to stop working
and living this way.
Once some of Petitioner's children go to college,
Petitioner and his wife will sell or rent the house in New York and Petitioner's
wife and the rest of the children will move back to New Jersey to be with
Petitioner. Petitioner states that he doesn't see good employment opportunities
increasing in Delaware County in the near future so that Petitioner would not
change jobs and move to New York.
Petitioner's wife did not work from 1986 to 1990. In 1990, Petitioner's
wife started working in New York State. At that time, Petitioner was advised by
his tax representative to start paying joint taxes in both New York and New
Jersey and he did.
TP-9 (9/88)

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TSB-A-94 (11) I
Income Tax
August 16, 1994
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
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
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):

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TSB-A-94 (11) I
Income Tax
August 16, 1994
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
established do not necessarily provide clear and convincing evidence of an intent
to change one's domicile (Matter of Zinn v Tully, supra).

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TSB-A-94 (11) I
Income Tax
August 16, 1994
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 New
York.
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: August 16, 1994

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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