Eugene Pollingue, partner in the West Palm Beach office of Arnstein & Lehr.

As a result of the 2017 Tax Cuts and Jobs Act, it is now even more advantageous to be a resident of Florida or a resident of another state that does not impose a state income tax. Prior to 2018, state and local taxes were fully deductible as an itemized deduction on an individual’s federal income tax return. That all changed as a result of the 2017 Tax Cuts and Jobs Act. Beginning in 2018 and ending in 2025, the deduction for state and local taxes is limited to $10,000 (or $5,000 for married couples filing separately). Furthermore, during this same time period the standard deduction has been increased to $24,000 for joint filers, to $18,000 for heads of households, and to $12,000 for singles and marrieds filing separately. Therefore, not only is the state and local tax deduction capped, but with the increased standard deduction, the capped state and local tax deduction may not provide any benefit. Itemized deductions will only result in a tax benefit if they are greater than the standard deduction. If all itemized deductions, which include the deduction for state and local tax capped at $10,000, are less than the standard deduction, the taxpayer will deduct the standard deduction and the state and local tax deduction will result in no tax savings. As a result, living in a state that has income tax can be even more expensive than before the new tax law, because now the deduction for state and local taxes may not provide a tax benefit on one’s federal income tax return.

Generally, in order to become a resident of Florida for tax purposes, one would have to change his domicile to Florida. Domicile is the place you consider your permanent home. It is the place where you intend to return after a period of absence. It is where your center of gravity is located. The test for determining the state of your residence is a facts and circumstances test, which would include considering the following questions:

  • Where is your primary home?
  • Do you own second homes in other states, and if you do where is your most expensive home?
  • Do you spend more than 183 days per year in Florida?
  • If you own a home in Florida, have you applied for the homestead exemption for that home?
  • Where is your employment?
  • Where are your friends and family?
  • Where are your doctors, lawyers, CPAs?
  • Where are your assets?
  • Where are your bank accounts, brokerage accounts and investment advisers?
  • Where are the clubs to which that you belong?
  • Where is your place of worship?
  • Where are you registered to vote?
  • What state issued your driver’s license?
  • What county or municipality issued your library card?
  • Where are your vehicles titled?
  • Do you have Florida wills and trusts prepared by a Florida lawyer?
  • Have you filed a Florida Declaration of Domicile in the county of your Florida residence?
  • Have you filed final tax returns in your former state, and reflected your address on that return you Florida address?

This list points out many of the factors that must be considered. There may be other questions to be answered depending on the particular circumstances of the taxpayer. There is no bright line test. Not all of the answers to these questions would have to come out on the side of Florida in order to make one a Florida domiciliary. These questions merely provide an idea of the types of factors that will be considered in determining domicile.

Once domicile in a particular state is established, domicile remains in that state until the taxpayer establishes a new domicile. Generally, the taxpayer has the burden of proof of establishing that he has changed his domicile. Therefore, it will be the taxpayer’s burden to demonstrate that he has moved his domicile to Florida, based on the facts and circumstances.

Even if the taxpayer is able to demonstrate that he has changed his domicile to Florida, he still needs to comply with the laws of his former state to in order to no longer be subject to tax in his former state. Maintaining too many ties in the former state, such as a residence or spending too much time in the former state, are critical factors. For example, New York will tax an individual who is not domiciled in New York if the individual maintains a permanent place of abode in New York for more than 11 months of the year and spends 184 days or more in New York during the year. New Jersey will tax an individual even though he is not domiciled in New Jersey if he maintains a permanent home in New Jersey for the entire taxable year and spends more than 183 days in New Jersey during the year. Pennsylvania will tax a non-domiciliary unless he spends more than 181 days of the year outside Pennsylvania, or he has no permanent abode in Pennsylvania for any part of the year.

Although there has always been an advantage to relocating to Florida for tax purposes, the new tax law has made the advantage of coming to Florida even greater. Even though it is relatively easy to become a Florida resident for tax purposes under the eyes of the state of Florida, one must still comply with the laws of his former state in order not to continue to be subject to tax in the former state. Although the laws of every state is different, important factors are generally whether a residence is maintained in the former state and the number of days spent in the former state. Any individual considering moving to Florida for tax purposes should consult his tax adviser in his former state to assure that he disassociates himself from his former state under that state’s laws.

Eugene Pollingue Jr., is a partner with Saul Ewing Arnstein & Lehr in West Palm Beach. His practice focuses on the area of estate planning and asset protection for high net worth clients, probate, and income tax planning for commercial transactions.