[conesuslaker]

I am transferring my permanent residency from NYS to Florida this year. I believe one of the criteria for NYS tax purposes is to spend a minimum of 183 days within the tax year out of NYS. Would it be a minimum 183 days out of NYS or a minimum 183 days within Florida?

[AtlantaTaxExpert]

You will be taxed on ALL of your income by NY state until the date you leave NY state and establish residency in another state.

Example: You leave NY state on 1 September 2010, and move to Florida. If you rent an apartment or buy a house in Florida, and STAY THERE for the rest of the year and all of 2011, the NY state tax authorities will accept that 1 September 2010 was your last day in NY state and will allow you to pro-rate your income, taxing income from 1 January to 1 September 2010, and leaving the income from the rest of the year untaxed by NY state (and by Flordia, since Floroda has no state income tax).

What causes problems is when people move down to Florida, buy a house, get a driver's license, register to vote, etc. then COME BACK to New York for extended periods to work and live, yet argue that their primary residence and domicile are in Flordia and thus claim they are NOT subject to NY state income taxes. THAT argument will not fly with the NY state tax authorities.

At best, you will be taxed (as a non-resident) for income earned from NY state sources, such as from a job or for independent contract work done within NY state borders. At worst, NY state will determine that the house in Florida is merely a vacation home and that your domicile NEVER changed from New York to Florida, and thus tax ALL of your world-wide income as a New York state resident.

[ebaines]

One other point - the 183 day rule is used to determine your true state of residency. If you stay in FL at least 183 days you're home free, because clearly you spend more time there than anywhere else. But if you spend less than 183 days in FL, then the deciding factor is in which state did you spend the most time. For example, if you stay 160 days in your "vacation home" in NY, but only 150 days in FL, and 55 days elsewhere (cruisin' the Caribbean, perhaps?), then NY can claim you as a resident and require you to pay income tax to them. But if the numbers are changed to 160 days in FL, 150 days in NY, and 55 days elsewhere, then you can say you are a FL resident and NY is a vacation home. If you are contemplating spreading time around like this be sure to keep records of precisley how many days you spend where.

Also, just to clarify - the first year you move from NY to FL you will have to file a part-year resident return with NY, and will owe taxes to NY on income you made while still a NY resident.

[AtlantaTaxExpert]

ebaines raises some valid points.

One final point: The burden of proof on HOW MANY DAYS you spent in which state RESTS WITH YOU!

Given how strapped NY state is for income, I guarantee that they will NOT take your word for it when you state you spent 200 days in Florida and 160 days in NY state. They will demand unambiguous proof that you both worked and lived in Florida during your stated domicile period before allowing you to avoid paying the NY state income tax.