New York City residents have the highest State and City tax burden in the country (it's over 15% at the top level, recently overtaking California). It's no surprise that New Yorkers are constantly strategizing around their tax burden and potential moves to other states- especially for high earners or those looking to sell a business.
But a lot of New Yorkers suffer from 'advice by cocktail party" and many misconceptions float around as people assume that being out of NY for more than 183 days is "enough". Getting out of New York's tax grip is a lot more complicated than that.So we’re going to one of the top experts in the field, MARK KLEIN of HODGSON RUSS.Mark is Partner and Chairman of the Firm and concentrates his practice in New York State and New York City tax matters. He has more than 35 years of experience with federal, multistate, state and local taxation –He may be best known for his public speaking on tax topics. Mark splits his time between the Firm's New York City and Buffalo offices.For New Yorkers listening, you are going to learn a lot on how to arrange your affairs when for state tax purposes. We're also going to talk a little bit about the "Convenience Rule" which is impacting a lot of New Yorkers who have "relocated" due to Covid.What do New Yorkers face?-Income and Capital Gains Tax that is the highest in the nation (Over 15%)-Estate TaxWhat are the typical options when reducing the tax bill? What do you have to show?When moving to a non-tax state, what does a client have to think about?
What about the new normal with COVID? What if I'm not working in NYC anymore?
Mark and his team at HODGSON neatly sums up the issues here:
https://www.hodgsonruss.com/what-to-expect-in-a-new-york-residency-audit.html
WHAT TO EXPECT IN A RESIDENCY AUDIT
A New York State residency audit is one of the most difficult, intrusive, and document-intensive of all personal income tax audits. And the New York Tax Department has one of the most sophisticated and aggressive residency-audit programs in the country. This handbook follows a question-and-answer format that should tell you everything—ok, almost everything—you need to know about what happens in these audits. You’ll have to call us if you want to know everything!
WHAT IS A RESIDENCY AUDIT?
A residency audit is designed to determine whether you correctly filed as a nonresident or part-year resident of New York. Because New York residents are subject to tax on their worldwide income while nonresidents are subject to tax only on that portion of their income attributable to (“sourced toâ€) New York, the difference in tax liability can be significant, particularly if you have substantial investment income.
If there is a possibility that you were also a New York City resident, the difference in potential tax can be even more significant since New York City residents also pay tax on their worldwide income while New York City nonresidents pay no tax to the City at all, even if they work there.
The audit will generally cover three areas. First, the auditors will focus on the first residency test, called the “domicile†test. Second, the auditors will look to the alternative residency test, called “statutory residency.†And finally, even if you are able to establish nonresidency, the audit will also examine whether you properly “allocated†your sourced income to New York on your tax return.
We usually don’t see the New York auditors examining other underlying components of a tax return—such as the income and deductions reported. But in more recent years, as auditors have become better trained (and more aggressive), there has been more of a shift in focus to the ENTIRE tax return, so you should be ready for such questions as well.
HOW LIKELY IS IT THAT I WILL BE AUDITED?
Very likely. If you are a high-income taxpayer claiming a move into or out of New York, it’s a near certainty you will be audited. The Tax Department is sophisticated and aggressive. Consider some of the numbers:
The tax department has ten district offices located across the State (and in Chicago).There are more than 300 auditors who focus on theseOver the past five years, the Tax Department has conducted over 15,000 of theseThese audits have generated over $1 billion in revenue over this time
In short, there are a billion reasons why the New York Tax Department watches these issues carefully. If you claim a move from New York, expect to get audited.
HOW IS RESIDENCY DETERMINED?
There are TWO residency tests.
The auditor will first attempt to establish whether you are domiciled in New York. That’s the first test.
The second test is more black and white. Under the second test— called “statutory residencyâ€â€”a taxpayer who is domiciled in another state can still be taxed as a resident if they maintain a permanent place of abode in New York and spend more than 183 days in New York during the year.
If you meet either of these tests, you are a resident. So we have to be mindful of both issues.
HOW IS DOMICILE DETERMINED?
A domicile audit usually is concerned with change: Did the taxpayer move into or out of New York during the audit period? We are often looking to tie that change to a change in lifestyle or some life-changing event, like a marriage, retirement, new job, and so forth. And despite what many taxpayers and practitioners believe, the inquiry is not really focused on where the taxpayer is registered to vote, maintains a driver’s license, or registers his cars. It is a much more subjective inquiry, based on long-standing common-law principles that are often difficult to apply. The general standard from the case law is that “the test of intent with respect to a purported new domicile [depends on] whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it.â€
Critically, the party asserting a change of domicile has the burden to prove, by clear and convincing evidence, that the taxpayer abandoned his or her historic domicile and moved to the new location with the intent to remain there permanently. Don’t take the burden of proof concept lightly. “Clear and convincing†evidence is not defined, but we’re sure it means better than 51/49. If a taxpayer has the burden of proof in a domicile audit and the case is a close one, a tie will go the New York Tax Department. Of course, if the Department is asserting a change-of-domicile into New York, the burden goes the other way, and the Department must prove, by clear and convincing evidence, that the taxpayer intended to change his domicile to New York.
Overall, though, the domicile inquiry has to do with a taxpayer’s feelings and intentions, which can be difficult to quantify. The nonresident audit guidelines that the Department has put together are of great value in assisting auditors (and practitioners) in working through the issues that come up during a residency audit.
Under the guidelines, the auditor is instructed to analyze the taxpayer’s lifestyle, using five “primary†factors to determine where the taxpayer’s domicile—his or her one, true home—is actually located. An assessment of these “five factors,†and a series of less significant “other†factors as necessary, is used by the Tax Department as an objective means to a subjective end: on balance, the place where the factors most heavily favor is likely the taxpayer’s domicile.
THE FIVE FACTORS
HOME
The home factor reviews the use and maintenance of the taxpayer’s New York residence as compared with the nature and use patterns of the non-New York residence. In other words, does the taxpayer behave as though the non-New York residence is her “home� That is particularly crucial when a New York residence is acquired by a taxpayer whose domicile is in another state or when a residence in New York is retained after a move to another state. So questions about timing, and which residence was owned or occupied first, are often important. But other questions often arise. Is one residence owned but the other a rental? What is the value and sizeof each residence? What actions did the taxpayer take to remove herself from the old community? Has she established roots in the new community? Where does the family spend holidays and special occasions? Those are the questions practitioners have to ask -- because we know the auditor will.
ACTIVE BUSINESS INVOLVEMENT
This factor considers the pattern of employment and the compensation derived from that employment. It will also examine the taxpayer’s active business involvement other than employment. Ongoing participation in decision-making and frequent communication with a business, even after official retirement, can be viewed as the most significant evidence of one’s domicile. For this factor, we would be looking to determine where the taxpayer actually worked on a day-to-day basis as well as the location of his primary office. If the taxpayer is a partner or shareholder in a New York business, the level of participation in the day-to-day management of the business can be looked at as well.
Often, of course, the taxpayer is retired, so this is a nonfactor in some cases. Sometimes a taxpayer moves from New York City out to Westchester County, Long Island, or another City suburb. The taxpayer will continue to work in New York City after the move, only as a commuter, and not a resident. Auditors are instructed to be reasonable in this situation, and not inflate the value of this factor vis-à -vis a taxpayer’s otherwise strong non-New York City connections.
TIME
Time is often the most important factor in a domicile case. Generally, an individual is going to spend the majority of time at his “home.†So the residency audit is naturally focused on this question,...