Q: My wife and I were residents of New York City for most of our lives. Since moving to Florida five years ago our friends at the club have told us that because we filed an Affidavit of Domicile here and have our Florida driver’s licenses, that the only thing we need to worry about is making sure we are not in New York for more than six months a year. What are the rules and how can we be sure that we do not get trapped by the New York tax auditors?

A: Leaving New York for tax purposes is not as easy as many New Yorkers seem to think. (By the way, many of the northeastern states like Massachusetts, Connecticut, New Jersey, etc. have either the same or very similar rules on residency.)

The first thing you should understand is that your former state of residence has a strong economic motivation in trying to maintain that you are, in fact, still a resident. For example, way back in 1989 the New York Department of Taxation and Finance conducted an audit program which resulted in increased tax revenues of approximately $120 million dollars with an average of about $100,000 per taxpayer audited.

The second thing you need to know is that the burden of proof rests on you. In other words, New York does not have to prove you are still a resident of New York, you have to prove that you are not.

What factors are considered depends on certain factual questions. For example, if you still maintain a “place of abode” in New York State, the auditors may then conduct an audit to ascertain whether or not you have spent 183 days within the state. A place of abode is any dwelling to which you have access, even if it is owned by someone (or something) else, as long as it is capable of being occupied year-round (so an unheated cabin in the Adirondacks would not be a problem).

The 183-day rule for the Statutory Residency Test is where many ex-New Yorkers get the idea that as long as they do not spend six months in their former state, they have nothing for which to be concerned. Keep in mind, when calculating the 183-day test, any part of a day counts as a day. So, if you arrive at the airport in New York at 11:40 p.m., by the time you get your luggage at 12:05 a.m. you have already spent two days in New York.

In addition to the statutory test for residency, however, the Domiciliary Test also is used. Under the Domiciliary Test, the auditors generally will consider five factors: (1) maintenance of a home; (2) active business involvement; (3) time spent in the state (i.e. if you spend four months in Florida, five months in New York, and the balance of the year traveling to various locations, Europe, California, Canada, etc., this factor could indicate New York residency even though less than 183 days were spent in New York); (4) location of “near and dear” items (auditors look for both items of significant value as well as sentimental value); and (5) location of family.

Finally, you should be aware that the New York Department of Taxation and Finance has and uses the power to subpoena taxpayer records, including but not limited to; telephone records (including cellular phones), credit card records, EasyPass records, etc.

In summary, former residents of New York (as well as former residents of other northeastern states) should consult with an attorney who is familiar with the residency rules of their former state, so that the necessary steps which will withstand an audit for residency are properly considered.

Brian K. Duffey is a Senior Counsel in the Estates & Trusts Practice Group at the law firm of Hodgson Russ LLP in Boca Raton. His practice focuses on estate planning, probate, trust administration and real estate. He may be reached at bduffey@hodgsonruss.com. The above Question & Answer is provided for general informational purposes only and should not be considered as legal advice as to any specific matter. You should not act solely upon this information without consulting legal or other professional advisors.