New Jersey or new york resident


M

MARTIN

Taxpayer used to live in NY
Continuosly operated a business in NYC

In 2000 moved in with Girl friend in NJ
In 2003 Moved in with brother in NJ

on or about October/ November 2004 moved back to NY

always operated a business in NY

Slept in NJ

Never changed drivers license as business was in NY

Has daily toll receipts and gas receipts in NJ

Is he NY or NJ residence for 2004 tax year

Thank you for the advice.
 
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B

Bob Sandler

MARTIN said:
Taxpayer used to live in NY
Continuosly operated a business in NYC
In 2000 moved in with Girl friend in NJ
In 2003 Moved in with brother in NJ
on or about October/ November 2004 moved back to NY
always operated a business in NY
Slept in NJ
Never changed drivers license as business was in NY
Has daily toll receipts and gas receipts in NJ

Is he NY or NJ residence for 2004 tax year
I expect that you will get varying opinions on this. My vote
is that for 2004 he was a full-year NY resident, and not a
NJ resident. I assume that you have read the definitions of
a resident and nonresident for both states.

The key question is domicile. I believe that his domicile
was NY. The continuous business connection is evidence of
this, and his intention to return to NY is evidenced by the
fact that he did return.

Since his domicile was NY, he was a NY resident. He does not
meet the exception under which someone whose domicile is NY
can be considered a nonresident because he spent much more
than 30 days in NY. Part of a day counts as a day, so every
day that he went to work is a day he spent in NY.

He was not a New Jersey resident because NJ was not his
domicile and he did not maintain a permanent home in NJ.
(You could argue about the permanence of the home with the
girlfriend, but we are talking about 2004. Moving into his
brother's home for less than two years, presumably because
he needed a place to go when the relationship broke up,
seems like a temporary expedient, not a permanent home.)

Note that if he did have a permanent home in NJ, he would be
a NJ resident, at least for the part of the year that he had
the home, while also still being a NY resident. The
definitions of a resident are not mutually exclusive.

Bob Sandler
 
K

Katie

Taxpayer used to live in NY
Continuosly operated a business in NYC

In 2000 moved in with Girl friend in NJ
In 2003 Moved in with brother in NJ

on or about October/ November 2004 moved back to NY

always operated a business in NY

Slept in NJ

Never changed drivers license as business was in NY

Has daily toll receipts and gas receipts in NJ

Is he NY or NJ residence for 2004 tax year

Thank you for the advice.
I agree with Bob Sandler. Taxpayer did not sever his ties with NY,
nor did he establish sufficient ties with NJ to change his domicile.
Therefore his domicile, and his tax residence, remained in NY
throughout the 2000-2004 period.

It does not appear that taxpayer maintained a permanent place of abode
in NJ, although depending on the facts, living with either the
girlfriend or the brother might qualify. Did either GF or B own the
property? If not, whose name was on the lease? If t/p's name was on
a lease in NJ, the state would have a case that he maintained a place
of abode there. Whether it was permanent depends on the purpose of
his living there -- i.e., was it an indefinite arrangement, or was it
for the purpose of completing a particular project or another
temporary purpose?

If either the abode with the GF or with the brother was a permanent
place of abode of t/p, he would be a resident of NJ if he was present
in the state for more than 183 days of a taxable year. Of course he
would have been a part-year resident of NJ in 2004, since he moved
back to NY before the end of the year.

Katie in San Diego
 
K

Katie

I agree with Bob Sandler. Taxpayer did not sever his ties with NY,
nor did he establish sufficient ties with NJ to change his domicile.
Therefore his domicile, and his tax residence, remained in NY
throughout the 2000-2004 period.

It does not appear that taxpayer maintained a permanent place of abode
in NJ, although depending on the facts, living with either the
girlfriend or the brother might qualify. Did either GF or B own the
property? If not, whose name was on the lease? If t/p's name was on
a lease in NJ, the state would have a case that he maintained a place
of abode there. Whether it was permanent depends on the purpose of
his living there -- i.e., was it an indefinite arrangement, or was it
for the purpose of completing a particular project or another
temporary purpose?

If either the abode with the GF or with the brother was a permanent
place of abode of t/p, he would be a resident of NJ if he was present
in the state for more than 183 days of a taxable year. Of course he
would have been a part-year resident of NJ in 2004, since he moved
back to NY before the end of the year.

Katie in San Diego- Hide quoted text -

- Show quoted text -
Wow, that's the fastest I ever saw a post to m.t.m. show up! Dick
must be at his computer as we speak <G>.

I should also have reiterated Bob Sandler's observation that it is
entirely possible, and happens quite frequently, that an individual is
a domiciliary resident of one state and a statutory resident of
another state at the same time. Fortunately NJ would allow credit for
all of the tax paid to NY, regardless of the source of the income
(limited, of course, to the NJ tax on the same income).

Katie in San Diego
 
B

Bob Sandler

Katie said:
Wow, that's the fastest I ever saw a post to m.t.m. show up! Dick
must be at his computer as we speak <G>.
Robomoderation has gone live. Maybe you are on the approved
list, so your posts go through automatically.

Bob Sandler
 
K

Katie

Robomoderation has gone live. Maybe you are on the approved
list, so your posts go through automatically.

Bob Sandler
Oh, you're probably right. Somehow I didn't expect it so soon.

Katie
 
S

Seth

I expect that you will get varying opinions on this. My vote
is that for 2004 he was a full-year NY resident, and not a
NJ resident. I assume that you have read the definitions of
a resident and nonresident for both states.

The key question is domicile. I believe that his domicile
was NY. The continuous business connection is evidence of
this, and his intention to return to NY is evidenced by the
fact that he did return.
I believe that in order to retain NY residence, the taxpayer must
maintain a "permanent place of abode" to which he intends to return.
OP said nothing about maintaining a NY residence. Merely operating a
business (or having a job) in NY does not make one a resident.

It might well be argued that OP's _intent_ was to remain with his
girlfriend permanently.

So I would say that in 2004 he was part-year in each state.

Seth
 
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K

Katie

I believe that in order to retain NY residence, the taxpayer must
maintain a "permanent place of abode" to which he intends to return.
OP said nothing about maintaining a NY residence. Merely operating a
business (or having a job) in NY does not make one a resident.

It might well be argued that OP's _intent_ was to remain with his
girlfriend permanently.

So I would say that in 2004 he was part-year in each state.

Seth- Hide quoted text -

- Show quoted text -
In order to become a nonresident of NY, the t/p would have to have
changed his domicile to NJ. It didn't sound to me as if he had
severed his ties with NY, or created sufficient ties with NJ, to have
done that. Of course it depends on all of the facts and
circumstances, which we don't have.

Katie in San Diego
 
K

Katie

I believe that in order to retain NY residence, the taxpayer must
maintain a "permanent place of abode" to which he intends to return.
OP said nothing about maintaining a NY residence. Merely operating a
business (or having a job) in NY does not make one a resident.

It might well be argued that OP's _intent_ was to remain with his
girlfriend permanently.

So I would say that in 2004 he was part-year in each state.

Seth- Hide quoted text -

- Show quoted text -

P.S. <G>

The "permanent place of abode" requirement has to do with statutory
residence, i.e., the definition of a resident who is domiciled
elsewhere. There is no requirement that a person maintain a permanent
place of abode in order to retain a domicile. Until a new domicile is
established, the former domicile continues, even if the individual has
severed all ties to it.

Generally, in order to change domicile, one must meet ALL of three
requirements: (1) abandon the previous domcile (physically move away
from it); (2) move to and reside in a new location; and (3) intend to
remain in the new location permanently or indefinitely. Depending on
all of the facts and circumstances, it is possible that the t/p in
this example did meet all of those requirements and did acquire a new
domicile in NY. The facts given, however, suggest that he may not
have done so.

Katie in San Diego
 
S

Seth

[/QUOTE]
Generally, in order to change domicile, one must meet ALL of three
requirements: (1) abandon the previous domcile (physically move away
from it); (2) move to and reside in a new location; and (3) intend to
remain in the new location permanently or indefinitely. Depending on
all of the facts and circumstances, it is possible that the t/p in
this example did meet all of those requirements and did acquire a new
domicile in NY. The facts given, however, suggest that he may not
have done so.
Which do you think he might have missed? He clearly met (1) and (2).
I think if he hadn't met (3), meaning he planned to move away from his
girl friend, he'd have had plenty of time to arrange a place to live
rather than with his brother.

Seth
 
K

Katie

Which do you think he might have missed? He clearly met (1) and (2).
I think if he hadn't met (3), meaning he planned to move away from his
girl friend, he'd have had plenty of time to arrange a place to live
rather than with his brother.

Seth- Hide quoted text -

- Show quoted text -
Well, you may be right at that, Seth. Both these arrangements sounded
temporary to me, but we don't know what his intentions or expectations
were.

Katie
 
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M

Mark Bole

Generally, in order to change domicile, one must meet ALL of three
requirements: (1) abandon the previous domcile (physically move away
from it); (2) move to and reside in a new location; and (3) intend to
remain in the new location permanently or indefinitely. Depending on
all of the facts and circumstances, it is possible that the t/p in
this example did meet all of those requirements and did acquire a new
domicile in NY. The facts given, however, suggest that he may not
have done so.
Which do you think he might have missed? He clearly met (1) and (2).
I think if he hadn't met (3), meaning he planned to move away from his
girl friend, he'd have had plenty of time to arrange a place to live
rather than with his brother.[/QUOTE]

It's not a matter of him planning in advance to move away from his girl
friend after a few years, it's a matter of this: what actions did he
take to indicate he did *not* plan to move away from NJ and did *not*
plan to move back to NY. Intent alone is not sufficient to establish a
new domicile.

Like Katie I believe in the end it will be a matter of facts and
circumstances we don't have knowledge of. Did he sever his existing
ties to NY in 2000 (clearly, not all of them)? Did he establish new
ties to NJ over the next few years (not many, that we know of)? At what
point do you think the strength of his overall ties to NJ become greater
than those to NY, or vice versa?

Keeping a NY driver's license because one works in NY yet lives
elsewhere does not make any sense to me as a valid rationale -- what was
the address on his driver's license? Where was the vehicle registered?
Where were state and local taxes paid? Where was his personal or real
property located? Where were voting registration, doctors, churches,
banks, and so on located? Nowadays, physical addresses rather than P.O.
boxes are often required for such things.

Simply living with a girlfriend/boyfriend (no children) probably does
not carry as much weight as living with a spouse/RDP (registered
domestic partner) when it comes to determining domicile. Let's say his
wife and children were still living in a house they owned together in
NY, while he was off living with his girlfriend in NJ -- that would not
really indicate a change of domicile. (Oh, he didn't say anything about
a wife and children? My point is, what else don't we know?)

-Mark Bole
 

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