Domicile vs. statutory resident: the two New York tests
Updated . Not tax or legal advice.
Moving your domicile to Florida does not end the question. New York has two separate tests, and you can fail either one.
Test 1: Domicile
Your domicile is your true, permanent home. To change it from New York, you must prove by clear and convincing evidence that you left New York and set up a new home elsewhere. McLaughlin & Stern
Auditors look at five main factors: Hodgson Russ
| Factor | What they compare |
|---|---|
| Home | Size, value and use of each home; which you got first; where you spend holidays |
| Business | Where you work day to day and where your main office is |
| Time | Where you spend your days, with proof for each day |
| Near and dear items | Where you keep heirlooms, art, jewelry and important papers |
| Family | Where your spouse and minor children live and go to school |
A Florida driver license, voter card and Declaration of Domicile help, but on their own they carry little weight. McLaughlin & Stern
Test 2: Statutory residence
Even with a Florida domicile, you are taxed as a New York resident if both of these are true: EY
- You keep a permanent place of abode in New York for substantially all of the year (generally more than 10 months, from tax year 2022).
- You are in New York for 184 days or more (any part of a day counts).
Not every New York property is a permanent place of abode. In one case, a home used about three weeks a year with no personal items in it did not count. McLaughlin & Stern
The 10-month rule is a general rule, and auditors can use judgment. Someone who rents out a New York home every summer can still be treated as keeping it. EY
What to do with this
- If you keep a New York home, track your New York days every day, with proof.
- Work through the five domicile factors, not only the paperwork.
- Talk to a CPA or attorney before you decide what to do with your New York home.
Questions people ask
Can I be a New York resident even if my domicile is Florida?
Yes. Under the statutory residency test, you are taxed as a New York resident if you keep a permanent place of abode in New York for more than 10 months of the year and spend 184 or more days there. EY
What are the five New York domicile factors?
Home, active business involvement, time, near and dear items, and family. Hodgson Russ
Is a Florida driver license enough to prove a change of domicile?
No. A Florida license, voter card and Declaration of Domicile help, but on their own auditors give them little weight. You must show the change by clear and convincing evidence. McLaughlin & Stern