How is legal residence determined?

Bernie Cosell · Joined: 18 Feb 2008 Posts: 2

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.. Surprised

)) Where would he vote? in NYS or
absentee ballot in VA?]

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

Archived from group: misc>legal>moderated

Mark Bole · Joined: 25 Aug 2007 Posts: 327

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.. Surprised

)) 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

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Timothy · Joined: 20 Jan 2008 Posts: 2

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.

ChenangoBusinessServices · Joined: 25 Aug 2007 Posts: 13

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

Dick Adams · Joined: 25 Aug 2007 Posts: 25

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.. Surprised

)) 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

nospam · Joined: 25 Aug 2007 Posts: 8

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.. Surprised

))
> 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.

Benjamin Yazersky CPA · Joined: 02 Jan 2008 Posts: 41

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.. Surprised

)) 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.

___________________________________
>>
-----> real address on hobokeni or hobokenx <-----

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R. Pile · Joined: 25 Aug 2007 Posts: 20

> 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?

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nospam · Joined: 25 Aug 2007 Posts: 8

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?

Bernie Cosell · Joined: 18 Feb 2008 Posts: 2

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
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

Stan Brown · Joined: 25 Aug 2007 Posts: 6

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

Seth · Joined: 25 Aug 2007 Posts: 177

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

Katie · Joined: 25 Aug 2007 Posts: 94

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) 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

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