Accountant Forums


Reply
Thread Tools

How is legal residence determined?

 
 
Bernie Cosell
Guest
Posts: n/a
Thanked:
 
      02-18-2008, 11:30 AM
My dad actually physically lives in New York City. BUT: _every_ "address"
for him is to my place, in Virginia. [e.g., his bank accounts are here,
all his bills and such are sent here, all of his mail comes here, his assets are
registered at my address]. Is he still considered a resident of NYS? [first,
for legal matters, and second for taxes: would he still have to pay NYS/NYC
taxes? VA taxes? (heavenforfend, both..)) Where would he vote? in NYS or
absentee ballot in VA?]

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
Pearisburg, VA
--> Too many people, too few sheep <--

 
Reply With Quote
 
 
 
 
Mark Bole
Guest
Posts: n/a
Thanked:
 
      02-18-2008, 03:50 PM
Bernie Cosell wrote:
> My dad actually physically lives in New York City. BUT: _every_ "address"
> for him is to my place, in Virginia. [e.g., his bank accounts are here,
> all his bills and such are sent here, all of his mail comes here, his assets are
> registered at my address]. Is he still considered a resident of NYS? [first,
> for legal matters, and second for taxes: would he still have to pay NYS/NYC
> taxes? VA taxes? (heavenforfend, both..)) Where would he vote? in NYS or
> absentee ballot in VA?]


First there is domicile, which you acquire at birth and keep until you
establish a new one (one and only one domicile at a time).

Then there is residence, for tax purposes each state has its own rules.

As Katie (one of the resident experts, pun intended) has pointed out in
the past, it is possible to be a domiciliary resident of one
jurisdiction and a statutory resident of another, subject to resident
taxation of both -- although often there will be some kind of credit for
taxes paid to the other state, to reduce or eliminate double taxation.

If you dad maintains stronger ties overall to VA but lives and works in
NY, its sounds like he is indeed a taxable resident of both NY and VA.

(cross-posting to m.l.m. removed from this reply).

-Mark Bole

--
<< ------------------------------------------------------- >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2007) - All rights reserved. >>
<< ------------------------------------------------------- >>
 
Reply With Quote
 
 
 
 
Timothy
Guest
Posts: n/a
Thanked:
 
      02-19-2008, 12:03 PM
On Feb 18, 6:30 am, Bernie Cosell <ber...@fantasyfarm.com> wrote:
> My dad actually physically lives in New York City. BUT: _every_ "address"
> for him is to my place, in Virginia. [e.g., his bank accounts are here,
> all his bills and such are sent here, all of his mail comes here, his assets are
> registered at my address].


Ummm, your domicile IS (ostensibly) where you "physically" live. So
NYC is where your dad lives. If he wants to send all his mail
somewhere else, he is free to do so... but that doesn't make him a
resident of Virginia any more than renting a PO Box in NYC would make
him a resident of the post office.




 
Reply With Quote
 
ChenangoBusinessServices@hotmail.com
Guest
Posts: n/a
Thanked:
 
      02-19-2008, 12:03 PM
On Feb 18, 6:30=A0am, Bernie Cosell <ber...@fantasyfarm.com> wrote:
> My dad actually physically lives in New York City. =A0BUT: _every_ "addres=

s"
**********

NYC taxing authorities love to browse thru business records looking
for these folks.

One NYC client had her Mink coat sent to another state where she
picked it to wear.

They caught her. The business in the city just let them look at their
books.

Now its so easy to sit and google names and phone numbers to catch
folks


He's asking for trouble



Nichols
CBS

 
Reply With Quote
 
John A. Weeks III
Guest
Posts: n/a
Thanked:
 
      02-19-2008, 12:03 PM
In article <>,
Bernie Cosell <> wrote:

> My dad actually physically lives in New York City. BUT: _every_ "address"
> for him is to my place, in Virginia. [e.g., his bank accounts are here,
> all his bills and such are sent here, all of his mail comes here, his assets
> are
> registered at my address]. Is he still considered a resident of NYS?
> [first,
> for legal matters, and second for taxes: would he still have to pay NYS/NYC
> taxes? VA taxes? (heavenforfend, both..)) Where would he vote? in NYS or
> absentee ballot in VA?]


New York State has a document on-line that addresses the issue of
domicile. It is geared towards people who establish a home in
Florida to try to get out of NY taxes. It has a series of
guidelines to help an auditor determine what is fair. A key
question is how much time does your dad spend in NY as compared
to VA? I think he loses right there, he is a NY resident.
The next one is where does he keep his "near and dear items"
such as personal photos and family heirlooms. Another one is
where does he visit the dentist or go for routine medical checks.
Banking used to be a factor, but with electronic banking in past
years and Internet today, you can open a bank account just about
anywhere.

-john-

--
================================================== ====================
John A. Weeks III 612-720-2854
Newave Communications http://www.johnweeks.com
================================================== ====================

 
Reply With Quote
 
Dick Adams
Guest
Posts: n/a
Thanked:
 
      02-19-2008, 12:04 PM
Bernie Cosell <> wrote:

> My dad actually physically lives in New York City.
> BUT: _every_ " address" for him is to my place, in
> Virginia. [e.g., his bank accounts are here, all
> his bills and such are sent here, all of his mail
> comes here, his assets are registered at my address].
> Is he still considered a resident of NYS? [first,
> for legal matters, and second for taxes: would he
> still have to pay NYS/NYC taxes? VA taxes?
> (heavenforfend, both..)) Where would he vote?
> in NYS or absentee ballot in VA?]


Does he have earned income or is he retired?
That doesn't matter - just interested in more
detail,

Depending on where you live and where you work,
you either pay your taxes where you live or
where you work or sometimes both. NYC is one
of those places where you may have to pay in
both places.

Without more information, it appears to me
that he has to pay NYC and NYS taxes, but
not VA taxes since he has no nexus in VA
other than a son doing his recordkeeping.

Run the numbers to see how much less he'd pay
if he moved to VA.

Also he should be voting in NYC.

Dick

 
Reply With Quote
 
nospam@isp.com
Guest
Posts: n/a
Thanked:
 
      02-19-2008, 12:04 PM
On 18 Feb 2008, Bernie Cosell <> wrote:

> My dad actually physically lives in New York City.
> BUT: _every_ "address" for him is to my place,
> in Virginia. [e.g., his bank accounts are here,
> all his bills and such are sent here, all of his
> mail comes here, his assets are registered at
> my address]. Is he still considered a resident
> of NYS? [first, for legal matters, and second
> for taxes: would he still have to pay NYS/NYC
> taxes? VA taxes? (heavenforfend, both..))
> Where would he vote? in NYS or absentee
> ballot in VA?]


Except that you are correct to note, as you do at least implicitly,
that "resident" and "residence" are accorded different law significant
meanings depending on the particular context/purposes in/for which
those words are used, even if you did not say (though you did) that
your father "actually" [sic] resides in New York City, surrounding the
word "address" to which you refer in Va. where you reside ("[your]
address") with quotation marks appears to suggest (at least
unless/until you fact-specifically describe otherwise) that your
father neither resides in Va. nor treats Va. as his "domicile" (for
any N.Y. law purposes) because you do not say, with respect to the
latter issue, that he intended at any time in the past or presently
intends to treat Va. as his permanent residence.

To the contrary, the most you so far appear to say in this connection
is that he has been using "[your] address" as a mail drop -- no less,
but also (for, "Where does he 'reside' and where is he 'domiciled'?"
purposes) no more.

Apart from you not having said that your father during whatever (also
not actually here identified) period you have in mind has resided or
has been or plans ever to be domiciled in Va. or has conducted any
business in/by/through which he generated any income in Va., so that
one cannot answer reliably solely on the basis of the facts you so far
state whether he would/wouldn't have any income tax liability to Va.,
if you mean by "actually physically lives in New York City" that your
father has maintained a permanent apartment or other abode there at
which he has spent an aggregate of more than one-hundred eighty-three
days during each to you relevant year in New York state and city, then
he is a "resident individual" for the purposes of being obliged to
report and, if relevant/applicable, o pay New York State and New York
City income taxes (re. which, see/read N.Y. Tax Law 605(b) and
N.Y.C. Administrative Code 11-1705[b] [which mirrors the said state
tax law provision]).

For background discussion/analysis for New York income tax purposes
(including a discussion of "double taxation" issues if they are
relevant to you), perhaps the presently most dispositive case law
source worth reading (there are hundreds of reported and unreported
decisions dealing with state straddling individuals raising these
issues) is In re Tamagni, 91 N.Y.2d 530, 673 N.Y.S.2d 44, 695 N.E.2d
1125 (1998) which is also discussed/glossed in later such cases.

 
Reply With Quote
 
Benjamin Yazersky CPA
Guest
Posts: n/a
Thanked:
 
      02-20-2008, 12:33 PM
On Feb 18, 6:30 am, Bernie Cosell <ber...@fantasyfarm.com> wrote:
> My dad actually physically lives in New York City. BUT: _every_ "address"
> for him is to my place, in Virginia. [e.g., his bank accounts are here,
> all his bills and such are sent here, all of his mail comes here, his assets are
> registered at my address]. Is he still considered a resident of NYS? [first,
> for legal matters, and second for taxes: would he still have to pay NYS/NYC
> taxes? VA taxes? (heavenforfend, both..)) Where would he vote? in NYS or
> absentee ballot in VA?]
>
> /Bernie\
> --
> Bernie Cosell Fantasy Farm Fibers
> ber...@fantasyfarm.com Pearisburg, VA
> --> Too many people, too few sheep <--



You didn't give enough info to make a determination of residency.

NY is quite aggressive in this area and does many residency audits.
And there are many court cases. Its a highly litigated area.
You might want to look at some of these cases to see if your facts and
circumstances relate to any existing court case. That might help
guide you in which direction to look into.

___________________________________
<<< Benjamin Yazersky, CPA [NJ & NY] >>>
-----> real address on hobokeni or hobokenx <-----





"This written advice was not intended or written to be used, and it
cannot
be used by any taxpayer, for the purpose of avoiding penalties that
may be
imposed on the taxpayer."

(The foregoing legend has been affixed pursuant to U.S. Treasury
Regulations
governing tax practice.)





The information transmitted is intended only for the person or entity
to
which it is addressed and may contain confidential and/or privileged
material. Any review, retransmission, dissemination or other use of,
or
taking of any action in reliance upon, this information by persons or
entities other than the intended recipient is prohibited. If you
received
this in error, please contact the sender and delete the material from
any
computer.



 
Reply With Quote
 
R. Pile
Guest
Posts: n/a
Thanked:
 
      02-20-2008, 06:02 PM
> My dad actually physically lives in New York City. BUT: _every_ "address"
> for him is to my place, in Virginia. [e.g., his bank accounts are here,
> all his bills and such are sent here, all of his mail comes here, his assets are
> registered at my address]. Is he still considered a resident of NYS? [first,
> for legal matters, and second for taxes: would he still have to pay NYS/NYC
> taxes? VA taxes?
>



I have a nearly identical, but opposite, situation. Someone who moved
from NY State to VA in 2006 and lived in VA through all of 2007. She
still has a NY driver's license and NY plates on the car; her mailing
address is her son's address in NY. Her bank accounts are in NY and
she still travels to NY for doctor visits. Presumably, she votes
absentee in NY. In VA she lives with a family member; much of her
furniture and personal possessions are in storage in NY.

She does not work in VA and did not work in NY. Her income in 2007 is
limited to payments under a separation agreement with her soon-to-be
ex-husband plus part of his pension. She also earns a small income
through some tutoring at a local elementary school in VA. She owns
a rental condo in NY which will likely break even or produce a loss in
2007. She has no residence or job to return to in NY, although she
claims that "someday" she may return to that state.

She wants to file as a NY resident - using the son's address - and not
file at all in VA, since NY does not tax pension income, but VA does.
I maintain she must file as a Resident of VA, having lived there an
entire year and may need to also file a Non-Resident return in NY
should the NY condo show a taxable profit.

Is that accurate? From this thread, I learn that she may qualify as a
Resident of both NY and VA? Is filing solely as a NY Resident - and
not filing in VA - a possible scenario?

--
<< ------------------------------------------------------- >>
<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
<< that may be imposed upon the taxpayer. >>
<< >>
<< The Charter and the Guidelines for submitting posts >>
<< to this newsgroup as well as our anti-spamming policy >>
<< are at www.asktax.org. >>
<< Copyright (2007) - All rights reserved. >>
<< ------------------------------------------------------- >>
 
Reply With Quote
 
nospam@isp.com
Guest
Posts: n/a
Thanked:
 
      02-21-2008, 12:42 PM
On 20 Feb 2008, Benjamin Yazersky CPA <> wrote:

> Bernie Cosell <ber...@fantasyfarm.com> wrote:
>
>> My dad actually physically lives in New York City.
>> BUT: _every_ "address" for him is to my place,
>> in Virginia. [e.g., his bank accounts are here,
>> all his bills and such are sent here, all of his mail
>> comes here, his assets are registered at my address].
>> Is he still considered a resident of NYS? * * *

>
> You didn't give enough info to make a determination of residency.
>
> NY is quite aggressive in this area and does many residency audits.
> And there are many court cases. * * *


The OP not having said that his father stays for any residential
purpose with the OP at the OP's Va. residence and/but having said that
his father "actually" [sic] "lives" [sic] in New York City" [sic] and
also not having said that his father resides or is domiciled at any
other location, why isn't that enough information to conclude that his
father is a N.Y. resident?

 
Reply With Quote
 
 
 
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are On
Refbacks are Off


Similar Threads
Thread Thread Starter Forum Replies Last Post
Maryland Principal tax, residence vs non-residence packat Tax 1 08-21-2008 09:31 PM
Second residence - should I rent it or write it off as a second residence? Spin US Taxes 1 12-05-2006 04:07 AM
primary residence, secondary residence, marriage Old Car Tax 3 04-15-2005 11:05 PM
primary residence, secondary residence Old Car US Taxes 6 04-06-2005 04:53 PM
Primary Residence, how should I handle my "residence" credentials Me2 Tax 2 04-05-2004 10:26 PM


All times are GMT. The time now is 09:24 AM.
Posts in this forum do not constitute the advice of AccountantForums.com or its members. Financial advice should always be taken from qualified advisors before committing to a financial decision.