One of the topics often addressed in this column (and not coincidently the subject of much litigation) is residency. New York state residents are subject to the Personal Income Tax on their worldwide income.1 An individual may be considered a resident either by virtue of being a “statutory resident,” or by reason of being a “domiciliary.” N.Y. TAX LAW §605(b)(1); see also 20 N.Y.C.R.R. §105.20(a). Statutory residence is largely mechanical—a taxpayer is a resident if he or she has a “permanent place of abode” in the state and is physically present here for 183 days or more in a year. N.Y. TAX LAW §605(b)(1)(B); see also 20 N.Y.C.R.R. §105.20(a)(2). In contrast, since where one is domiciled is largely a reflection of the individual’s intent, that determination requires a broader analysis of the facts and circumstances concerning his or her life.
The relevant authorities provide for a strong presumption against a claimed change of domicile and require a high level of proof (“clear and convincing” evidence).See, e.g., In re Newcomb, 192 N.Y. 238, 84 N.E. 950 (1908). Moreover, due to the length of the audit and appeal processes, cases are litigated years after the years at issue. As a result, an administrative law judge (ALJ) has the benefit of 20/20 hindsight in that events subsequent to the years at issues can be considered as well. For those reasons, a recent ALJ determination was such a pleasant surprise. In that case, Gregory Blatt, DTA No. 826504 (N.Y. Div. Tax App., Feb. 2, 2017), petitioner successfully proved that he changed his domicile from New York to Texas, even though he moved back to New York a year later.
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