How is legal residence determined?

Discussion in 'Tax' started by Bernie Cosell, Feb 18, 2008.

  1. 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..:eek:)) 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 <--
     
    Bernie Cosell, Feb 18, 2008
    #1
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  2. Bernie Cosell

    Mark Bole Guest

    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..:eek:)) 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. >>
    << ------------------------------------------------------- >>
     
    Mark Bole, Feb 18, 2008
    #2
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  3. Bernie Cosell

    Timothy Guest

    On Feb 18, 6:30 am, 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].


    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.
     
    Timothy, Feb 19, 2008
    #3
  4. Bernie Cosell

    Guest

    On Feb 18, 6:30=A0am, Bernie Cosell <> 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
     
    , Feb 19, 2008
    #4
  5. 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..:eek:)) 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
    ======================================================================
     
    John A. Weeks III, Feb 19, 2008
    #5
  6. Bernie Cosell

    Dick Adams Guest

    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..:eek:)) 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
     
    Dick Adams, Feb 19, 2008
    #6
  7. Bernie Cosell

    Guest

    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..:eek:))
    > 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 [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.
     
    , Feb 19, 2008
    #7
  8. On Feb 18, 6:30 am, 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..:eek:)) 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 <--



    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
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    received
    this in error, please contact the sender and delete the material from
    any
    computer.
     
    Benjamin Yazersky CPA, Feb 20, 2008
    #8
  9. Bernie Cosell

    R. Pile Guest

    > 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. >>
    << ------------------------------------------------------- >>
     
    R. Pile, Feb 20, 2008
    #9
  10. Bernie Cosell

    Guest

    On 20 Feb 2008, Benjamin Yazersky CPA <> wrote:

    > 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? * * *

    >
    > 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?
     
    , Feb 21, 2008
    #10
  11. Bernie Cosell

    Mark Bole Guest

    John A. Weeks III wrote:
    > 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..:eek:)) Where would he vote? in NYS or
    >> absentee ballot in VA?]

    >


    [...]
    > 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.


    True, but you can still only visit a physical ATM and walk into a
    physical bank lobby with physical tellers at a specific physical
    location, and those transactions are recorded (physically...).

    -Mark Bole
     
    Mark Bole, Feb 21, 2008
    #11
  12. 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?

    I see that this is a complicated area and it is time for me to check with
    both VA and NY lawyers. Probably a key determinant, which i didn't want to
    mention up front [which is why I had quotes around some of the words in the
    OP] is that my dad is in a nursing home, and what i guess I was really
    wondering is whether the nursing home is now his 'legal residence' or if
    his residence is with me. [as someone mentioned, I am, in fact, doing all
    of his recordkeeping, paying his bills, his assets, such as they are, are
    registered at my address, I have a PoA for him, etc]. From the comments it
    appears that, indeed, the nursing home is his "residence" now [which is
    fine, just means, for example, I'll be dealing with four tax setups instead
    of just two [most of you know that in addition to New York State taxes,
    there is also a New York _City_ income tax!], but time to get a more solid
    legal opinion....

    /Bernie\
    --
    Bernie Cosell Fantasy Farm Fibers
    Pearisburg, VA
    --> Too many people, too few sheep <--
     
    Bernie Cosell, Feb 21, 2008
    #12
  13. Bernie Cosell

    Mike Guest

    Mark Bole wrote:
    > John A. Weeks III wrote:
    >> 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..:eek:)) Where would he vote? in NYS or
    >>> absentee ballot in VA?]

    >
    > [...]
    >> 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.

    >
    > True, but you can still only visit a physical ATM and walk into a
    > physical bank lobby with physical tellers at a specific physical
    > location, and those transactions are recorded (physically...).


    But that wouldn't show where you lived. I could live in Florida and yet
    fly to NY every morning on business, got to an ATM or a bank and get
    cash for the strippers (er, I mean the entertainment hostesses at the
    business meeting<g>) and then fly back each evening and never sleep in
    NY at all.
     
    Mike, Feb 22, 2008
    #13
  14. Bernie Cosell

    Stan Brown Guest

    Thu, 21 Feb 2008 07:42:39 -0500 from Bernie Cosell
    <>:
    > my dad is in a nursing home, and what i guess I was really
    > wondering is whether the nursing home is now his 'legal residence'
    > or if his residence is with me.


    My sympathies for your position. It must be difficult to have a
    beloved parent in care several hundred miles away from you.

    Legally, though, I don't see that this is so complicated. Where did
    he live before he went into the home? If it was New York, then he has
    no residential connection with Virginia. If it was Virginia, I'd
    still bet dollars to donuts that his legal residence is New York
    because that's where he sleeps each night.

    > in addition to New York State taxes,
    > there is also a New York _City_ income tax!


    You know, I imagine, that you can get forms on line at
    http://www.tax.state.ny.us/forms/default.htm . I don't believe you
    have to file a separate form for NYC tax -- as far as I can recall
    there are extra lines on the state form for city residents. But of
    course that's something you'll want to check on your own.

    > I'll be dealing with four tax setups instead of just two


    I don't understand. He has no earned or unearned income in Virginia
    and he doesn't live there. Why would Virginia taxes enter into it?

    --
    If you e-mail me from a fake address, your fingers will drop off.

    I am not a lawyer; this is not legal advice. When you read anything
    legal on the net, always verify it on your own, in light of your
    particular circumstances. You may also need to consult a lawyer.

    Stan Brown, Oak Road Systems, Tompkins County, New York, USA
    http://OakRoadSystems.com
     
    Stan Brown, Feb 22, 2008
    #14
  15. Bernie Cosell

    Seth Guest

    In article <>,
    Bernie Cosell <> wrote:

    > From the comments it
    >appears that, indeed, the nursing home is his "residence" now [which is
    >fine, just means, for example, I'll be dealing with four tax setups instead
    >of just two [most of you know that in addition to New York State taxes,
    >there is also a New York _City_ income tax!],


    It's only a couple of lines on the New York State tax form (and some
    more money, of course).

    Seth
     
    Seth, Feb 23, 2008
    #15
  16. Bernie Cosell

    Katie Guest

    On Feb 22, 4:26=A0am, Mike <> wrote:
    > > [...]
    > >> 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.

    >
    > > True, but you can still only visit a physical ATM and walk into a
    > > physical bank lobby with physical tellers at a specific physical
    > > location, and those transactions are recorded (physically...).

    >
    > But that wouldn't show where you lived. I could live in Florida and yet
    > fly to NY every morning on business, got to an ATM or a bank and get
    > cash for the strippers (er, I mean the entertainment hostesses at the
    > business meeting<g>) and then fly back each evening and never sleep in
    > NY at all.-


    But if you didn't maintain a permanent place of abode in NY, you would
    not be a NY resident even if you were there every day. If your
    domicile is outside NY, you are a nonresident unless you BOTH maintain
    a permanent place of abode AND spend more than 183 days of the taxable
    year there.

    Of course if you work in NY, you would have NY source income that
    would be subject to state income tax. The NYC income tax applies only
    to residents (and the city definition of a resident is the same as the
    state's).

    With respect to the OP's father, if he was a VA domiciliary (or
    domiciled in any state other than NY) before he went into the NY
    nursing home, whether he is a NY resident as a result of his stay
    there depends on whether he is incompetent. There are NY cases
    holding that a person whose presence in NY is involuntary, such as an
    incompetent person (e.g., an Alzheimer's patient), is not a resident
    by virtue of being in a NY nursing home. And vice versa: a NY
    domiciliary who is incompetent and is in a nursing home in another
    state does not become a nonresident. The reason is that a "permanent
    place of abode" is a place that is chosen voluntarily by the
    taxpayer. (Richard I. Furman.) New York Advisory Opinion TSB-
    A-06(6)I, 08/28/2006; Ratkowsky v. Browne (1944) 47 NYS2d 905 , 267 AD
    643 .

    If the OP's father is domiciled in VA (or elsewhere) and is not
    incompetent, the nursing home is a permanent place of abode unless he
    is there for a temporary purpose, such as to recover from surgery,
    that can reasonably be expected to take a limited amount of time. If
    he expects to be there for the long term, he is a resident.

    If the OP's father was domiciled in NY before he went into the nursing
    home, he remains a NY domiciliary and a NY resident. He is not a
    resident of VA under any test, since he is not domiciled there and has
    not been present there. Having his son take care of his financial
    affairs in VA does not make him a resident.

    Katie in San Diego
     
    Katie, Feb 23, 2008
    #16
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