Leaving New York: domicile, the statutory resident test and part-year returns

Figures are for tax year 2026. This Guide is for a New York resident who is moving to Florida, Texas or another state, for someone who already lives outside New York but works for a New York employer, and for their adviser. It covers the two ways New York treats you as a resident, how the Department of Taxation and Finance audits a claimed move, the part-year return for the move year, the convenience of the employer rule, and New York City tax. The rules come from tax.ny.gov pages and from the New York regulations as mirrored on law.cornell.edu, read on 3 October 2026. The newest IT-203 instructions on tax.ny.gov on that date are the 2025 edition; the 2026 edition was not yet published, so check the form rules against it when it appears. This is a working method for an adviser, not a filed position.

For the general multi-state method (resident credits, sourcing rules in other states, the destination state's own tests), use us-multi-state-residency-and-allocation. For the full-year resident return, use ny-it-201-resident-return. For federal residency of non-citizens, use us-tax-residency. For the Florida side of the move, use fl-moving-to-florida-domicile. This Guide stops at New York's edge.

The method, step by step

1. Fix the facts for each tax year separately: every dwelling the client and spouse can use in New York and elsewhere, the date each was bought, leased, sold or given up, and a day-by-day location record. New York decides residency year by year; the Department's audit guidelines say "It is very possible that the decisions reached concerning an individual's domicile in one year will not be the same as the conclusions reached in another." See the Nonresident Audit Guidelines (December 2021).
2. Test domicile first. A New York domicile continues until the client shows, with clear and convincing evidence, that they abandoned it and set up a new domicile outside New York. Weigh the five primary factors in the section below. See the residency FAQ and 20 NYCRR 105.20 on law.cornell.edu.
3. If the client is domiciled outside New York for the whole year, or for the part of the year after the move, run the statutory resident test for the year: a permanent place of abode in New York maintained for substantially all of the year and 184 days or more in New York. If both are met, the client is a resident for the whole year, even in the year the domicile changed. See Income tax definitions and TB-IT-690, Permanent Place of Abode.
4. Choose the return. Full-year resident: Form IT-201 (see ny-it-201-resident-return). Part-year resident or nonresident: Form IT-203, with Form IT-203-B where Item H is answered Yes. See the IT-203 instructions and the part-year resident filing page.
5. For a resident-to-nonresident move, apply the special accrual rule on the resident-period return, or post the bond or security that defers it. See 20 NYCRR 154.10 and 20 NYCRR 154.11.
6. For the nonresident period, source wages to New York day by day, applying the convenience of the employer rule to days worked at home for a New York office. See TSB-M-06(5)I. Check income received after the move that relates to work previously done in New York. See TSB-M-10(9)I.
7. Run the same domicile and statutory tests for New York City (and Yonkers) separately. A part-year city resident completes Form IT-360.1. See New York City and Yonkers income tax and the IT-360.1 instructions.
8. Build the audit file before anyone asks: the records list in the audit section below, kept for every year in which the client still has a New York dwelling or claims a change of domicile.

Two ways to be a New York resident

Source for this section: Income tax definitions and the residency FAQ.

Route	Who it catches	Test, in the Department's words
Domicile	Anyone whose domicile is New York State	"your domicile is New York State" (subject to the domiciliary exception below)
Statutory resident	Anyone domiciled elsewhere (other than an individual in active service in the Armed Forces, 105.20(a)(2))	"you maintain a permanent place of abode in New York State for substantially all of the taxable year and spend 184 days or more in New York State during the taxable year, whether or not you are domiciled in New York State for any portion of the taxable year"

Both statutory conditions must be met (AND, not OR). The regulation states the same day threshold as "more than 183 days" (20 NYCRR 105.20(a)(2)). 183 days is not enough; 184 is.

A part-year resident is someone who meets the definition of resident, or of nonresident, for only part of the year. A nonresident is someone who was not a resident for any part of the year (Income tax definitions).

Domicile: what the Department weighs

Domicile is "your permanent and primary residence that you intend to return to or remain in after being away". You can have several residences but only one domicile. Your New York domicile "does not change until you can demonstrate with clear and convincing evidence that you have abandoned your New York domicile and established a new domicile outside New York State". The FAQ adds: "It is not enough simply to file a certificate of domicile or register to vote in the new location." (residency FAQ). Both halves are needed: leaving New York, and landing somewhere new with the intention of staying. Under the regulation, no change of domicile results from a move "if the intention is to remain there only for a limited time", even if the old home was sold (20 NYCRR 105.20(d)(2)).

The Nonresident Audit Guidelines divide the evidence into five primary factors and "other" factors. The auditor analyses the primary factors first and, the guidelines say, "In virtually all cases the review of primary factors will result in a decision on domicile."

Primary factor	What the auditor compares (guidelines, section V.A)
Home	"The individual's use and maintenance of a New York residence compared to the nature and use patterns of a non-New York residence." Owned or rented does not matter.
Active business involvement	The pattern of employment and compensation in the year, active participation in a New York trade, business or profession, and substantial investment in and management of a New York closely held business.
Time	"a quantitative analysis of where the individual spends his time during the tax year", compared between New York and the other locations. Time alone does not decide domicile.
Items "near and dear"	Where the items of significant sentimental value are kept: family heirlooms, works of art, collections, a family photo album, and pets.
Family connections	Normally the individual, "the spouse or partner", and any minor children. The guidelines say where minor children attend school "can be one of the most important factors".

The "other" factors include where cars, boats and planes are registered, the driver's licence, voter registration and how the client actually votes, and where safe deposit boxes are kept. The guidelines quote the Tax Appeals Tribunal that formal declarations such as voter and car registration "are less persuasive than informal acts which demonstrate an individual's 'general habit of life.'" A Florida declaration of domicile, a Texas driver's licence and a new voter card help; they do not win a case on their own.

Who carries the burden

• A person asserting a change of domicile carries the burden. The guidelines: "The burden of proving a change of domicile is upon the party asserting the change. The evidence to effect a change of domicile must be 'clear and convincing'." The regulation puts the burden on "any person asserting a change of domicile to show that the necessary intention existed"; the clear and convincing standard comes from the guidelines and the residency FAQ (20 NYCRR 105.20(d)(2)).
• When the Department says a non-domiciliary moved INTO New York, the Department carries the burden (Nonresident Audit Guidelines, section D).
• A person domiciled outside New York who keeps a permanent place of abode in New York and claims to be a nonresident "must keep and have available for examination ... adequate records to substantiate the fact that such person did not spend more than 183 days" in New York (20 NYCRR 105.20(c)).

The domiciliary exception

A New York domiciliary is still taxed as a nonresident for a year in which they meet ALL three conditions of 20 NYCRR 105.20(b)(1): no permanent place of abode in New York during the year, a permanent place of abode outside New York for the entire year, and not more than 30 days in New York in the year. A second route, 105.20(b)(2), needs at least 450 days in a foreign country within a 548-consecutive-day period, with the further day limits in the regulation; it does not apply to a move to another state. The domiciliary must prove the conditions are met (20 NYCRR 105.20(b)). Few people leaving for Florida meet the first route in the move year, because they lived in New York before the move.

The statutory resident test

Counting days

• "Any part of a day is a day for this purpose, and you do not need to be present at the permanent place of abode for the day to count as a day in New York." (residency FAQ). A morning meeting in Manhattan followed by an evening flight to Miami is a New York day.
• Exception in the regulation: presence may be disregarded "if such presence is solely for the purpose of boarding a plane, ship, train or bus for travel to a destination outside New York State, or while traveling through New York State to a destination outside New York State" (20 NYCRR 105.20(c)).
• Medical days: under Audit policy, "confinement to a medical institution for any reason in New York (serious or otherwise), does not constitute a day spent in New York" (Nonresident Audit Guidelines, section on medical days). The policy is stated for confinement to a medical institution.

Permanent place of abode

A permanent place of abode is a residence "you maintain, whether you own it or not" that is "suitable for year-round use"; it "generally includes a residence your spouse owns or leases". A structure not suitable for year-round use and used only for vacations is not one. You maintain an abode you do not own or lease if you contribute to the household "in the form of money, services, or other contributions", and "If you maintain a place of abode that meets the physical characteristics described above, and you can stay there whenever you want, you are maintaining a permanent place of abode, even if you only stay there occasionally." An employer's apartment maintained primarily for your or your family's use counts; a shared, first-come-first-served corporate apartment does not (TB-IT-690). The Court of Appeals in Gaied held that the taxpayer must have a "residential interest" in the dwelling: "there must be some basis to conclude that the dwelling was utilized as the taxpayer's residence" (Nonresident Audit Guidelines). A pied-a-terre the client uses at will is an abode; a relative's home owned or paid for by the client is an abode only if the client has that residential interest.

"Substantially all of the taxable year"

The two official statements differ, and the adviser needs both:

• TB-IT-690 (page updated April 2026): "Generally, you maintain a permanent place of abode for substantially all of the tax year if you maintain it for more than eleven months during the year." It gives the year you first lease or buy, and the year you end the lease or sell, as examples of years when you may not reach that.
• Nonresident Audit Guidelines (December 2021): "Beginning with tax year 2022, Audit Division policy will define 'substantially all of the year' to generally mean a period exceeding 10 months." This "10-month rule" applies "in tax years where a taxpayer either acquires or disposes of their residence". In other years, the guidelines treat a home rented out "for a few months each summer" as still maintained because "it is available for use on a regular, continuing basis but for occasional or brief absences including short term rentals". TB-IT-690 Example 4 treats a home rented out for six months, which the owner cannot use, as not a permanent place of abode for that year.

For a client who sells or gives up the New York abode during 2026, plan on the stricter audit policy: maintaining it for more than 10 months of 2026 can make it an abode for substantially all of the year.

The abode need not be the same dwelling all year: the guidelines say "the same permanent place of abode need not be maintained", so a client who sells one New York home and rents another is still tested on the combined period.

The trap in the move year

The audit guidelines state that if the client meets the statutory test, "he will be taxed for the entire year even though his domicile may have changed during the year", and quote Tax Law § 605(b)(1)(B): "whether or not domiciled in this state for any portion of the taxable year". The guidelines cite Smith v STC, where a couple moved to Florida in July but kept the New York home, furniture and utilities into the next year (Nonresident Audit Guidelines, section on substantial part of the year). Moving in March while keeping the Manhattan apartment all year, and coming back often enough to reach 184 New York days for the year, turns a part-year return into a full-year resident return. The worked hypothetical below shows the count.

The part-year resident return (IT-203)

• Who files: a part-year resident files Form IT-203 if they had any income in the resident period, or New York source income in the nonresident period, and New York adjusted gross income (federal amount column) exceeds the New York standard deduction, or in the other cases on the part-year resident filing page.
• What is taxed: for part-year residents, New York source income is the income reported for the resident period plus the New York source income for the nonresident period, "with adjustments for special accruals" (IT-203 instructions). Tax is first computed as if the client were a full-year resident, then multiplied by an income percentage based on "your New York source income and your federal income" (residency FAQ).
• Item H: "All IT-203 filers must complete item H", which asks whether the client or spouse maintained living quarters in New York State; a Yes requires Schedule B of Form IT-203-B, where the client enters the address of each set of living quarters available in New York State during the year (IT-203 instructions; Form IT-203). A Yes here tells the Department the client kept a place in New York.
• Spouses: if you filed a joint federal return and one spouse was a New York State resident and the other a nonresident or part-year resident, the IT-203 instructions require separate New York returns: the resident on IT-201, the other on IT-203 if required to file. If both choose a joint New York return on Form IT-201, the instructions say "both spouses' income will be taxed as full-year residents" for New York State tax purposes (IT-203 instructions, filing status section). The regulation says the domicile of a married couple is "generally" the same (20 NYCRR 105.20(d)(5)(i)): one spouse staying in New York weakens the other's claimed move.

Special accruals on leaving

When resident status changes from resident to nonresident, the client must, "regardless of the method of accounting normally employed", accrue on the resident-period return any items of income, gain, loss or deduction accruing before the change, that is, everything that would be included "if a Federal income tax return were being filed for the same period on the accrual basis" (20 NYCRR 154.10(a)). The regulation's example: a business sold for installments before the move; the client "must accrue ... the entire amount of the gain remaining unpaid from such installment obligations". A gain not recognized for federal purposes need not be accrued solely because of the move (154.10(c)).

Relief: the resident-period return may be filed without the special accruals if the client files a surety bond or other acceptable security, in an amount not less than the additional New York tax that would otherwise be payable, conditioned on reporting the deferred items on later nonresident returns. A surety bond is filed with the resident-period return and accompanied by Form IT-260 (20 NYCRR 154.11).

Income from New York work received after the move

Since tax years beginning on or after 1 January 2010, New York source income of a nonresident includes income "related to a business, trade, profession, or occupation previously carried on within the state, whether or not as an employee", including covenants not to compete and termination agreements (Tax Law § 631(b)(1)(F), TSB-M-10(9)I). If the work was carried on wholly in New York, the entire amount is New York source income. Severance, non-compete payments and similar amounts paid after the move are not freed by the move. The rule "does not apply to income received from pension and other retirement plans described in section 114 of Title 4 of the US Code" (see us-multi-state-residency-and-allocation). Where the work was carried on partly in New York, the memo sets an allocation fraction: apply the memo or refer. Deferred compensation, options and restricted stock allocation is beyond this Guide: refer (see below).

Remote work for a New York employer: the convenience of the employer rule

This applies to a nonresident, or a part-year resident in the nonresident period, whose assigned or primary work location is in New York State and who works some days at a home office outside New York (TSB-M-06(5)I).

• Any allowance for days worked outside New York "must be based upon the performance of services which, because of necessity (not convenience) of the employer, obligate the employee to out-of-state duties".
• "normal work days spent at home are considered days worked in New York State, and days spent working at home that are not normal work days are considered to be nonworking days."
• The exception, for tax years beginning on or after 1 January 2006: a normal work day at the home office is a day outside New York if the home office is a "bona fide employer office". The residency FAQ puts it plainly: "In general, unless your employer specifically acted to establish a bona fide employer office at your telecommuting location, you will continue to owe New York State income tax on income earned while telecommuting" (residency FAQ).
• If the assigned or primary work location is a bona fide employer office outside New York, the rule does not reach the home days: they are days outside New York.

The home office is a bona fide employer office if it meets the primary factor, OR at least 4 of the 6 secondary factors and 3 of the other factors in the memo (TSB-M-06(5)I).

Item	Value	Note (verbatim)
Source	all figures below	https://www.tax.ny.gov/pdf/memos/income/m06_5i.pdf
Secondary factor 6, employer reimbursement of home office expenses: "substantially all"	80%	"For purposes of this factor, substantially all of the expenses means 80% or more of the expenses."

Primary factor: "The home office contains or is near specialized facilities." Secondary factors: (1) the home office is a requirement or condition of employment; (2) the employer has a bona fide business purpose for the home office location; (3) the employee performs some core duties there; (4) the employee meets clients, patients or customers there on a regular and continuous basis; (5) the employer provides no designated office space or other regular work accommodations at its regular places of business; (6) the employer reimburses substantially all home office expenses (as in the table above), or pays a fair rental value for the home office space and furnishes or reimburses substantially all supplies and equipment. The ten other factors include a separate business phone line, the home address on the employer's letterhead or cards, an exclusive business area, inventory or business records kept there, a sign, advertising, business insurance cover, the employee is entitled to and actually claims a federal home office deduction, and the employee is not an officer of the company. The employee's own preference to work from home is not one of the factors.

New York City tax ends with city residency

New York City income tax is a resident tax. The residency FAQ: "If you are a nonresident, you are not liable for New York City personal income tax but may be subject to Yonkers nonresident earning tax if your income is sourced to the city of Yonkers." (residency FAQ).

• City residency uses the same two tests at city level: domicile in New York City, OR a permanent place of abode there and 184 days or more in the city. City domicile changes on the same clear and convincing standard (residency FAQ).
• A nonresident of the city who works for a New York City employer owes no New York City tax on those wages, including days counted as New York State days under the convenience rule: "Nonresidents of New York City are not liable for New York City personal income tax" (residency FAQ). Yonkers is different: the convenience rules apply to the Yonkers nonresident earnings tax (TSB-M-06(5)I).
• A client who moves from Manhattan to Westchester stops paying New York City tax but stays a New York State resident.
• A part-year city resident completes Form IT-360.1, Change of City Resident Status, and submits it with Form IT-201 or Form IT-203 (New York City and Yonkers income tax). On leaving the city, IT-360.1 also includes items that would be reportable at the time of the change under an accrual method (IT-360.1 instructions).
• Rates and city credits: see ny-it-201-resident-return.

What an audit asks for, and the records that win

The audit has three parts: domicile, statutory residency and income allocation. The guidelines say depth depends on the facts: a non-domiciliary with no New York abode who works in New York "might only be asked to verify the allocation of income", while someone with "a long-established pattern of maintaining a 'home' in New York would be questioned concerning their resident status" (Nonresident Audit Guidelines, section III). The tax.ny.gov pages read for this Guide do not publish a list of audit-selection triggers; the facts the Department sees on the return include the IT-203 residency period, Item H (living quarters in New York) and the Schedule B addresses.

Day logs: "The auditor should accept a taxpayer's credible and consistent account of routine travel." To back a diary, or where none exists, the client may be asked for "credit card receipts, phone bills, or other information". The guidelines' list of personal records typically requested (Nonresident Audit Guidelines, chapter VIII):

• personal diaries and calendars, written or electronic;
• credit card statements and receipts;
• bank records, including statements, canceled checks and ATM receipts;
• telephone records for both the New York and non-New York residences;
• utility bills for both residences;
• homeowner's insurance policies showing where valuable items are kept;
• itineraries for commercial flights or flight logs for private carriers;
• hotel receipts;
• EZ Pass records;
• moving bills showing furniture and other items moved to the new residence;
• security or swipe cards for office buildings.

Business records listed: business logs or diaries, corporate card statements, corporate minutes, employment contracts and expense vouchers. The auditor "should make every attempt to visit the New York place of abode", including names on the mailbox and interviews with the doorman or superintendent if necessary.

The guidelines also warn auditors about "false" indicators, such as "credit card purchases in New York by children, phone calls by housekeepers": the client should keep the evidence that explains them.

Move checklist with dates (2026 move, hypothetical dates)

When	Action	Why (source)
Before the move	Decide whether the New York dwelling is sold, the lease ended, or kept. If kept, plan the 2026 New York day count to stay at 183 or fewer days for the whole year.	Statutory test (TB-IT-690)
Before the move	Start a daily location log and keep phone, card and EZ Pass records from 1 January 2026.	Records list (audit guidelines)
Move date	Move the items near and dear (art, heirlooms, collections, pets) and keep the moving bills.	Primary factor 4 and records list (audit guidelines)
Move date	Children's school, spouse or partner: where they live is a primary factor.	Primary factor 5 (audit guidelines)
Within weeks	Driver's licence, car registration, voter registration, declaration of domicile in the new state (Florida: see fl-moving-to-florida-domicile). Helpful but not enough alone.	Other factors (audit guidelines; residency FAQ)
Before the move	Ask the New York employer in writing where the assigned or primary office will be, and whether the employer will set up a bona fide employer office at home.	Convenience rule (TSB-M-06(5)I)
Before the move	List installment sales, bonuses earned and other items accrued before the move; decide on accrual or a bond with Form IT-260.	Special accruals (20 NYCRR 154.10, 154.11)
If the New York dwelling is given up in 2026	Close or sell it so that it is not maintained for more than 10 months of 2026, if relying on not maintaining it for substantially all of the year.	10-month audit policy (audit guidelines)
2026 return season (2027)	File IT-203 (and IT-360.1 if leaving New York City), answer Item H truthfully, complete Schedule B of IT-203-B if Yes.	IT-203 instructions
Each later year with a New York abode	Keep the log and records again; the test is run each year.	20 NYCRR 105.20(c)

Worked hypothetical: a day count

Hypothetical. Dana is single, domiciled in Manhattan, and works for a Manhattan firm. She buys a house in Miami, moves her art, dog and car there, gets a Florida licence, and leaves New York on 31 March 2026. She spends every day from 1 January to 31 March 2026 in New York: that is 90 days (31 + 28 + 31). She claims her domicile changed on 1 April 2026.

Case A, the Manhattan apartment is sold on 15 August 2026. She maintained it for about seven and a half months of 2026, which is not more than 10 months. The statutory test cannot apply for 2026, because the abode was not maintained for substantially all of the year, whatever her day count, and she keeps no other New York dwelling. If the domicile change on 1 April holds up, she files IT-203 as a part-year resident (resident 1 January to 31 March), with IT-360.1 for New York City, and accrues the items in 154.10. Her post-move workdays in the Manhattan office are New York source days; her home days in Miami are also New York days unless her Miami home office is a bona fide employer office.

Case B, she keeps the Manhattan apartment all year as a pied-a-terre and returns for business and family. After 1 April she logs 94 days in New York, counting every day she was in the state for any part of the day. 90 + 94 = 184. She meets both statutory conditions (abode for substantially all of the year and 184 days or more), so she is a New York State resident for all of 2026 and files IT-201, even if her domicile did change on 1 April. If the days were in New York City, the same count makes her a city resident too.

Case B boundary: with 93 post-move days, 90 + 93 = 183. That is not 184 or more, so the statutory test is not met, and she is back to Case A's part-year analysis. One extra day decides the year: a day trip, a late-night arrival, or a dinner in Manhattan before an evening flight all count. A connection through JFK to a destination outside New York, without leaving the airport for another purpose, can be disregarded under 105.20(c). Days confined in a New York hospital do not count under Audit policy.

In both cases the Department can still argue she never changed domicile at all. Keeping the apartment, the job in Manhattan and frequent New York days are the facts the audit guidelines weigh against her under home, business involvement and time.

Ask the client first

• Do you, your spouse or partner, or a company you control keep any dwelling in New York that you can use whenever you want, and on what dates in 2026 was each one bought, leased, sold or given up?
• How many days, counting any part of a day, were you in New York State in 2026, and how many in New York City? What records support each day?
• Where do your spouse or partner and minor children live, and where do the children go to school?
• Where is your assigned or primary office, and has your employer done anything to make your home office a bona fide employer office (written requirement, reimbursement of 80% or more of home office expenses, client meetings at home)?
• Do you keep an active role or a substantial investment in a New York business, or will you receive severance, non-compete, deferred pay, options or installment sale proceeds after the move?
• Where are your art, heirlooms, collections and pets now, and when did they move?

When to refuse or refer

• A client who keeps the New York home, the New York job and the family in New York, and wants a nonresident return because of a Florida licence and voter card. The pages say formal declarations are less persuasive than the habit of life; do not prepare the return on that basis without an accountant's sign-off.
• A day count within a few days of 183 with no contemporaneous log. Refer to a New York professional before filing.
• Any open residency audit, Notice of Deficiency or conciliation conference: refer to a New York professional.
• Stock options, restricted stock, deferred compensation, carried interest or partnership interest sales spanning the move: allocation rules beyond this Guide; refer.
• Moves abroad (the 548-day rule), military members, and full-time undergraduate students: special rules in 105.20 and TB-IT-690 not worked through here; refer.
• Trusts and estates changing residence: 154.10 has separate rules; refer.

Sources

• New York State Department of Taxation and Finance, Frequently Asked Questions about Filing Requirements, Residency, and Telecommuting, updated 24 October 2025.
• Income tax definitions, updated 6 May 2025.
• Nonresident Audit Guidelines, December 2021.
• TB-IT-690, Permanent Place of Abode, issued 15 December 2011, page updated 7 April 2026.
• TSB-M-06(5)I, convenience of the employer test, 15 May 2006.
• TSB-M-10(9)I, income related to a business previously carried on in New York, 31 August 2010.
• Filing information for part-year residents.
• New York City and Yonkers income tax, updated 30 June 2026.
• IT-203-I instructions (2025 edition), Form IT-203 (2025), IT-360.1-I instructions (2025 edition).
• 20 NYCRR 105.20, 154.10 and 154.11, Legal Information Institute mirror of the New York regulations.

This Guide is a working method for professional use. It is not legal or tax advice for any person's situation; residency turns on facts that need a professional's review.