New Jersey or new york resident

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

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

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 .

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

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

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

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

P.S.

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

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

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

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