A Change in Domicile from New York to Florida Can Help Minimize Taxes

By Allan R. Lipman

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Retirees who have a substantial securities portfolio have benefited from the 15% federal income tax on stock dividends and capital gains. In contrast, both the dividends and capital gains are subject to New York income taxes at a rate as high as 7%. Similarly, Congress has increased the federal estate tax unified credit to $2 million, while New York continues to impose its estate tax on estates greater than $1 million. The failure of New York to give comparable tax relief has motivated many New Yorkers with homes in both New York and Florida to consider a change of domicile to eliminate New York income and estate taxes in their entirety.

Checklist to Determine Eligibility

Not all retirees who own homes in New York and Florida are eligible to elect Florida as their domicile. Domicile is characterized in the New York tax regulations as the place that an individual intends to be his permanent home and the place to which he intends to return whenever he may be absent. The regulations provide that, once established, a domicile continues until the person moves to a new location with the bona fide intention of making his fixed and permanent home there. A person’s declarations are given due weight, but they will not be conclusive if they are contradicted by conduct. For example, the regulations state that registering and voting in one place is important but not necessarily conclusive. Likewise, the length of time customarily spent at each location is important but not conclusive. A person can have only one domicile. If an individual has two or more homes, the domicile is the one regarded and used as the permanent home.

The leading case in New York was decided by the New York Court of Appeals in 1908 (Matter of Newcomb, 192 N.Y. 238). It remains “good law.” Mrs. Newcomb, during a 30-year period, and until she was 80, was domiciled in New York City. She generally resided during the winter in her home in New Orleans and resided during the summer in her residence in New York City. She wanted to make substantial bequests to Tulane University and was concerned that the will might be contested by her relatives. She consulted with a Louisiana attorney, who advised her to change her domicile by making an express declaration in writing to that effect. She signed a declaration stating that New Orleans was her permanent home and her place of domicile. It was argued that Newcomb resided in New York City and merely visited New Orleans, and that her later visits to New Orleans differed in no material respect from those made earlier. It was also argued that she sought to become a nominal resident of Louisiana merely for the purpose of making a Louisiana will and not for making a permanent home. The court rejected that approach and established the following rules for determining domicile when the retiree maintains two residences:

• There must be a present, definite, and honest purpose to give up the old place and take up the new place as the domicile.
• Every retiree may select and make his or her own domicile, but the selection must be followed by proper action. Motives are immaterial except as they indicate intention.
• A change of domicile may be made through caprice, whim, or fancy; for business, health, or pleasure; to secure a change of climate or a change of laws; or for any reason whatsoever, provided that there is an absolute and fixed intention to abandon one and acquire another and that the acts of the persons confirm this intention.
• A retiree may elect between a winter and summer residence and make a domicile of either, provided she acts in good faith.
• The right to choose implies the right to declare one’s choice, formally or informally, as he or she prefers, and even for the sole purpose of making evidence to prove what the choice was.
• No pretense or deception can be practiced, for the intention must be honest, the action genuine, and the evidence clear and convincing. The burden of proof rests upon the party who alleges a change of domicile.

Demonstrating Intent

Retirees who elect to make Florida their permanent residence should demonstrate such intention in a clear and convincing way by taking as many of the following steps as appropriate:

• File a declaration of domicile.
• File for a Florida homestead exemption.
• Obtain a Florida driver’s license and relinquish a New York license.
• Acquire Florida license plates and relinquish New York license plates.
• Register to vote in Florida and remove oneself from the New York voting rolls.
• File a nonresident, rather than a resident, New York income tax return if there is New York–source income.
• File a federal income tax return with the IRS Center in Atlanta.
• Transfer safe deposit box contents to Florida and close out a New York box.
• Open a Florida bank account.
• Change credit cards to the Florida address.
• Execute a new Florida will, Florida durable power of attorney, and Florida health care proxy.
• Refer to Florida residence in all trusts and other legal documents.
• Affiliate with Florida organizations and consider disaffiliation with New York ones.
• Have family gatherings and social activities centered in Florida rather than New York.
• Affiliate with a church or temple in Florida.
• If investing in real estate or businesses, focus on areas in Florida rather than New York.
• Transfer works of art, expensive furniture, heirlooms, and other valuable personal items to Florida.
• Consider acquiring cemetery plots in Florida.
• List the Florida residence as the primary residence on all homeowners insurance.
• Turn in any New York resident fishing or hunting licenses.
• License pets in Florida.
• If a retiree is a New York notary public, resign and become a Florida notary public.
• Cancel any New York real estate STAR exemption.
• Stay in Florida as long as practically possible each year.
• Consider acquiring a larger or more expensive home in Florida, or remodeling or redecorating it, and acquiring a smaller or less expensive home in New York, and document any steps taken in doing so.
• If a physician has advised that either extremely cold weather or hot, humid weather may be harmful to the retiree’s health, the physician should document the medical issues accordingly.

A change of domicile from New York to Florida will not save any New York income taxes if the retiree is present in New York in a calendar year for more than 183 days. Taxpayers will be considered “statutory residents” of New York only if they maintain a “permanent place of abode” in New York and are present in New York for more than 183 days. A diary should be kept, and a partial day is considered a full day. Therefore, if a retiree leaves New York at 6 a.m. on Friday morning and returns at 11 p.m. Sunday night, he will be considered absent from New York for only one day. In addition to a diary, the burden of proof as to the taxpayer’s physical presence can be onerous. The taxpayer should retain as much documentation as possible to support the entries in the diary. Failure to account for a day will be presumed by auditors to be a day inside New York. There are some exceptions to the general rule, such as when a retiree is confined to a New York hospital or is present in New York only to go to or from an airport.

Savings in New York Income Taxes

Certain income derived from, or connected with, New York sources will continue to be taxable in New York even if paid to the retiree after a change of domicile to Florida. For example, New York will tax items such as the distributable share of income from a former law or accounting partnership and rental income from New York real property. New York will not continue to tax income from annuities, dividends, and interest, even if from New York sources, unless the income is from property employed in a business, trade, profession, or occupation carried on in New York. In 1996, Congress passed legislation that prohibits New York from imposing its income tax on any retirement income of an individual who is no longer a resident or domiciliary of New York. To quantify the savings in New York income taxes, taxpayers may want to restate the most recent New York resident income tax return on a nonresident return and include only New York–source income.

Savings in New York Estate Taxes

The amount of New York estate tax is based on the net taxable estate as shown in the Exhibit. The following simplified examples illustrate the magnitude of the estate tax savings that will result from a change of domicile to Florida:

• If a former New Yorker has changed his domicile to Florida and dies with net assets of $10 million (none of which are in New York), his estate will pay federal estate taxes of approximately $3,680,000 and no New York estate taxes.
• If that same individual had not changed his domicile to Florida and all his assets are in New York, his estate will pay New York estate taxes of approximately $1,067,600. That amount will be deducted on the federal estate tax return and the federal estate taxes will be reduced from $3,630,890 to $3,190,000. Thus, the estate will pay a total of $4,257,600 versus a total of $3,680,000, a difference of $577,600.
• If that same individual has changed his domicile to Florida, but at the time of his death owned a home in New York valued at $1 million, his estate will pay a federal estate tax of $3,630,890 and a New York estate tax of $106,760 for a total of $3,737,650. Thus, the estate pays additional net estate taxes of $57,650 because the home is located in New York. Note the computation of the New York tax starts out with a calculation of a New York tax on all assets wherever located and then applies the applicable percentage (one-tenth of $1,067,600).
• A retiree dies in New York with an estate of $1,500,000. His estate will pay a New York estate tax of $64,400. There will be no federal estate taxes because of the $2 million threshold (i.e., equivalent to the federal unified credit). If the decedent had changed his domicile to Florida and had no assets in New York, there would be neither a federal estate tax nor a Florida estate tax. If the $1,500,000 included a New York home valued at $500,000, however, then there would be a New York estate tax of $21,465 (one-third of $64,400).

As indicated in the above examples, even if there is a change of domicile, New York will nevertheless impose a New York estate tax on real property and tangible personal property having any actual situs in New York. If retirees decide to change their domicile to Florida, it may be desirable to transfer the New York home to a limited liability company or other similar entity. Because shares of the limited liability company constitute intangible property, they should not be subject to New York estate taxes even though the entity owns real property in New York.

Marriage and Domicile Change

Most married couples have the same domicile. When a change of domicile occurs, both spouses change their domicile at the same time. The primary residence of one is the primary residence of the other. But consider the situation where they have a home in New York and a home in Florida and the wife stays in Florida from mid-October until mid-May and is not in New York for more than 183 days during a calendar year. On the other hand, the husband returns to their New York home one week a month for business reasons while his wife stays in Florida. As a result, he is in New York for more than 183 days in each calendar year, although his wife is not. The husband and wife file a joint federal income tax return. The husband files a resident New York tax return. The wife has no New York–source income and files no New York tax return. The wife has substantial income from her stocks and bonds. The Florida home is titled in the wife’s name. She files a declaration of Florida domicile, registers to vote in Florida, receives a homestead exemption on her Florida home, and follows many of the items on the checklist. As a result, there is a 3% cap on any increase in its assessment. A New York auditor claims she must pay New York income taxes on the dividends and interest she receives because she has not effectively changed her domicile. The auditor points out that her husband retained a significant tie to a New York business and, therefore, she cannot change her domicile to Florida. The auditor cites the New York tax regulations:

Husband and wife. Generally, the domicile of a husband and wife are the same. However, if they are separated in fact, they may each, under some circumstances, acquire their own separate domiciles even though there is no judgment or decree of separation. Where there is a judgment or decree of separation, a husband and wife may acquire their own separate domicile. [20 NYCRR 105.20(i)(5)]

This regulation should be changed. A 2005 decision of the New York Court of Appeals recognizes that spouses can each elect their own domicile (Glenbriar Co. v. Lipsman, 5 N.Y.3d 388). Although the case involved an issue related to a rent stabilized residence in New York City, its reasoning appears to sanction a change of domicile by one spouse while the other remains a New Yorker.

Caveat

A change of domicile makes the laws of Florida, rather than New York, applicable, including marital rights. Although a New Yorker may have the requisite intent to make a domicile change, if challenged, such intent must be demonstrated by clear and convincing evidence, which requires a high degree of proof. The lack of such evidence may result in not only an assessment, but also substantial interest and penalties. Where the result is uncertain, a change of domicile should not be attempted unless the taxes that will be saved are substantial. No change should be made without professional legal guidance.

Allan R. Lipman, JD, is a partner in the Buffalo, N.Y., law firm of Lipman & Biltekoff, LLP, and also has an office in Boca Raton, Fla. Some of the matters highlighted in this article are explored in more depth by the author at www.snowbirdguide.com where he also suggests how to respond to a domicile audit.