Florida vs. New York Residency: Resolving State Tax Audits for High Net Worth Movers

Last Updated: October 5, 2026

Next Scheduled Review: October 2027

Key Takeaways

New York taxes former residents as statutory residents under N.Y. Tax Law § 605(b)(1)(B) if they maintain a permanent place of abode in New York for substantially all of the year and spend more than 183 days in the state, even after changing domicile to Florida.
New York‘s December 2021 Nonresident Audit Guidelines changed the “substantially all of the year” standard from 11 months to 10 months for tax years beginning on or after January 1, 2022.
Florida imposes no state income tax and has no residency test of its own, meaning the audit risk for high-net-worth movers comes exclusively from the former state of residence, not from Florida.
Florida domicile requires more than filing a Declaration of Domicile under Fla. Stat. § 222.17; taxpayers must prove by clear and convincing evidence that they abandoned New York domicile, as demonstrated in Matter of Hoff and Ocorr-Hoff, DTA No. 850209 (N.Y.S. Tax Appeals Trib. Oct. 9, 2025).
A permanent place of abode in New York includes any residence available for personal use, regardless of ownership, under 20 NYCRR § 105.20(e)(1), and the New York Court of Appeals in Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d 592 (2014), clarified that the abode must be suitable for residential use.

Direct answer: A Florida vs. New York residency audit involves a challenge by the New York State Department of Taxation and Finance to a taxpayer’s claim that they changed domicile from New York to Florida under N.Y. Tax Law § 605(b)(1). Florida has no income tax and no audit program, while New York enforces strict domicile and statutory residency tests using the 2021 Nonresident Audit Guidelines and the “clear and convincing evidence” standard.

Cite This Article

Goldstein, A. (2026). Florida vs. New York Residency: Resolving State Tax Audits for High Net Worth Movers. [Publication Name].

Alan Goldstein, “Florida vs. New York Residency: Resolving State Tax Audits for High Net Worth Movers,” [Publication Name] (Oct. 5, 2026).

Introduction

High-net-worth individuals moving from New York to Florida face a stark asymmetry in state tax enforcement. Florida imposes no personal income tax and operates no residency audit program, while New York aggressively audits former residents who claim Florida domicile. The New York State Department of Taxation and Finance employs sophisticated data analytics, subpoenas cell phone records, and applies a rigorous five-factor domicile test under the 2021 Nonresident Audit Guidelines. The controlling authorities are N.Y. Tax Law § 605 and 20 NYCRR § 105.20 for New York, and Fla. Stat. § 222.17 for Florida’s Declaration of Domicile. The New York Tax Appeals Tribunal’s 2025 decision in Matter of Hoff and Ocorr-Hoff, DTA No. 850209, exemplifies how formal Florida documentation alone—voter registration, driver’s licenses, and a declaration of domicile—is insufficient to overcome continued New York ties. Federal constitutional limits under the Due Process and Commerce Clauses constrain state taxing authority, but the operative residency rules are creatures of state law.

[Internal Link: New York Residency Audit Guide]
[Internal Link: Florida Domicile Planning Guide]

What Is a Florida vs. New York Residency Audit?

Direct answer: A Florida vs. New York residency audit is a challenge by the New York State Department of Taxation and Finance to a taxpayer’s claim that they changed domicile from New York to Florida. Florida has no income tax and does not audit residency claims, so the audit risk comes exclusively from New York, which tests whether the taxpayer abandoned New York domicile under N.Y. Tax Law § 605(b)(1)(A) and whether they remain a statutory resident under § 605(b)(1)(B).

Statutory Basis

Direct answer: New York defines a resident under N.Y. Tax Law § 605(b)(1)(A) as one domiciled in New York unless maintaining no permanent place of abode, maintaining a permanent place of abode elsewhere, and spending not more than 30 days in the state; and under § 605(b)(1)(B) as one not domiciled but maintaining a permanent place of abode and spending more than 183 days in the state. Florida’s Declaration of Domicile is governed by Fla. Stat. § 222.17.

New York defines a resident individual under N.Y. Tax Law § 605(b)(1)(A) as one domiciled in New York unless the individual maintains no permanent place of abode in the state, maintains a permanent place of abode elsewhere, and spends not more than 30 days of the taxable year in the state. N.Y. Tax Law § 605(b)(1)(B) defines a statutory resident as one not domiciled in the state but maintaining a permanent place of abode for substantially all of the taxable year and spending more than 183 days in the state. 20 NYCRR § 105.20(e)(1) provides that a permanent place of abode includes any dwelling place that the taxpayer maintains for more than 11 months of the year, whether or not owned by the taxpayer. Florida‘s Fla. Stat. § 222.17 allows a person to file a Declaration of Domicile with the clerk of the circuit court, stating that they reside in and maintain a place of abode in the county and recognize it as their permanent home.

Historical Development

Direct answer: New York issued its first Nonresident Audit Guidelines in 1971 and substantially revised them in December 2021, changing the “substantially all of the year” standard from 11 months to 10 months for tax years beginning on or after January 1, 2022. The 2025 Tax Appeals Tribunal decision in Matter of Hoff and Ocorr-Hoff reinforced the clear and convincing evidence standard for domicile changes.

New York first issued its Nonresident Audit Guidelines in 1971 and revised them in June 2014 and again in December 2021 [citation requires verification]. The 2021 Guidelines changed the definition of “substantially all of the year” for statutory residency purposes from a period exceeding 11 months to a period exceeding 10 months, effective for tax years beginning on or after January 1, 2022. The 2021 Guidelines also provide that the 10-month rule will be applied in tax years in which a taxpayer either acquires or disposes of a residence. The New York Tax Appeals Tribunal decision in Matter of Hoff and Ocorr-Hoff, DTA No. 850209 (Oct. 9, 2025), sustained a domicile assessment against a couple who had taken formal steps to establish Florida residency, reinforcing that substance controls over documents.

Current Scope

Direct answer: The current scope of Florida vs. New York residency audits includes challenges to domicile changes, statutory residency determinations, and the sufficiency of Florida documentation. New York audits approximately 3,000 residency cases per year, applying a five-factor domicile test and the clear and convincing evidence standard.

New York conducts approximately 3,000 residency audits per year, examining domicile, statutory residency, and income allocation under the 2021 Nonresident Audit Guidelines. The five factors examined in a New York domicile audit are: (1) home—the size, value, and use of residences; (2) active business involvement—where business is conducted and income earned; (3) time—where the majority of days are spent; (4) items near and dear—location of personal and sentimental belongings; and (5) family connections—where immediate family resides. Florida has no income tax and does not audit residency claims, meaning the audit risk comes exclusively from New York. Florida’s Declaration of Domicile under Fla. Stat. § 222.17 and homestead exemption under Fla. Stat. § 196.031 provide evidentiary support but do not independently establish domicile.

Entity Reference Table

Entity	Full Name	Type	Binding Effect	Role in This Article
NYS DTF	New York State Department of Taxation and Finance	State administrative agency	Binds New York taxpayers; persuasive in NY courts	Audits and determines New York residency
NY DTA	New York State Division of Tax Appeals	State tribunal	Binds NYS DTF on remand; persuasive in NY courts	Hears New York tax appeals
NY Tax Appeals Tribunal	New York State Tax Appeals Tribunal	State appellate tribunal	Binds NYS DTF and NY DTA; persuasive in NY courts	Reviews NY DTA decisions
FL DOR	Florida Department of Revenue	State administrative agency	Binds Florida taxpayers on non-income tax matters	Administers Florida taxes other than income tax
N.Y. Tax Law	New York Tax Law	Primary statutory authority	Binds all New York taxpayers and agencies	Source of residency rules under § 605
20 NYCRR	New York Codes, Rules and Regulations, Title 20	Primary regulatory authority	Binds NYS DTF; subject to judicial review	Implements residency rules
Fla. Stat.	Florida Statutes	Primary statutory authority	Binds Florida taxpayers and agencies	Source of Declaration of Domicile under § 222.17
U.S. Constitution	United States Constitution	Federal constitutional authority	Binds all state taxing authorities	Limits state taxation under Due Process and Commerce Clauses

Binding Effect and Legal Weight

Direct answer: N.Y. Tax Law § 605 is primary statutory authority binding on the New York State Department of Taxation and Finance, all New York taxpayers, and New York courts. 20 NYCRR § 105.20 is primary regulatory authority. The 2021 Nonresident Audit Guidelines are secondary authority binding on audit staff but not on courts. Fla. Stat. § 222.17 is primary statutory authority in Florida. New York Tax Appeals Tribunal decisions are binding on the NYS DTF and Division of Tax Appeals.

Who Is Bound

Direct answer: New York’s residency statutes bind the NYS DTF and all New York taxpayers. The 2021 Nonresident Audit Guidelines are binding on New York audit staff but not on courts or taxpayers. Florida’s Declaration of Domicile statute binds Florida courts and agencies but does not bind New York tax authorities.

N.Y. Tax Law § 605 binds the NYS DTF and all New York taxpayers. 20 NYCRR § 105.20 binds the NYS DTF and is subject to judicial review. The 2021 Nonresident Audit Guidelines are without legal force or effect but are generally binding on New York State audit staff, who are expected to follow the rules and procedures set forth in the guidelines when conducting an audit. Fla. Stat. § 222.17 binds Florida courts and agencies but does not bind New York tax authorities. The New York Tax Appeals Tribunal decisions are binding on the NYS DTF and the Division of Tax Appeals under N.Y. Tax Law § 2016.

Precedential Value

Direct answer: New York Tax Appeals Tribunal decisions are binding on the NYS DTF and Division of Tax Appeals but persuasive only in New York courts. The Appellate Division reviews Tribunal decisions under N.Y. Tax Law § 2016 and Article 78 of the CPLR. Florida court decisions on domicile are persuasive in New York but not binding.

The New York Tax Appeals Tribunal decisions are binding on the NYS DTF and the Division of Tax Appeals under N.Y. Tax Law § 2016, which provides that a decision of the Tax Appeals Tribunal shall be reviewable in accordance with the provisions of Article 78 of the CPLR. The Appellate Division reviews the Tribunal’s findings for substantial evidence and its legal conclusions for errors of law. Florida court decisions on domicile, including those applying the clear and convincing evidence standard, are persuasive in New York but not binding.

Primary vs. Secondary Authority

Direct answer: N.Y. Tax Law § 605 and 20 NYCRR § 105.20 are primary authority. Fla. Stat. § 222.17 is primary authority in Florida. The 2021 Nonresident Audit Guidelines are secondary authority. New York Tax Appeals Tribunal decisions are primary authority as administrative adjudications. Florida Department of Revenue Technical Assistance Advisements are secondary authority.

N.Y. Tax Law § 605 and 20 NYCRR § 105.20 are primary authority. Fla. Stat. § 222.17 is primary authority in Florida. The 2021 Nonresident Audit Guidelines are secondary authority, providing a useful basis for challenging aspects of a personal residency audit and a useful indicator of what facts and circumstances an auditor will consider determinative. New York Tax Appeals Tribunal decisions are primary authority as administrative adjudications. Florida Department of Revenue Technical Assistance Advisements addressing domicile for intangible tax purposes are secondary authority.

Key Authorities and Cases

Direct answer: The controlling authorities for Florida vs. New York residency audits are N.Y. Tax Law § 605(b)(1), 20 NYCRR § 105.20, and the 2021 Nonresident Audit Guidelines for New York, and Fla. Stat. § 222.17 for Florida. Key cases include Matter of Hoff and Ocorr-Hoff (2025), Matter of Gaied (2014), and Matter of Obus (2022).

New York Statutory Authority

N.Y. Tax Law § 605(b)(1)(A) defines a resident individual as one domiciled in New York unless the individual maintains no permanent place of abode in the state, maintains a permanent place of abode elsewhere, and spends not more than 30 days of the taxable year in the state. N.Y. Tax Law § 605(b)(1)(B) defines a statutory resident as one not domiciled in the state but maintaining a permanent place of abode for substantially all of the taxable year and spending more than 183 days in the state. N.Y. Tax Law § 605(b)(1)(A) requires taxpayers asserting a change of domicile to prove the change by clear and convincing evidence.

New York Regulations and Guidance

20 NYCRR § 105.20(e)(1) provides that a permanent place of abode includes any dwelling place that the taxpayer maintains for more than 11 months of the year, whether or not owned by the taxpayer. 20 NYCRR § 105.20(d)(2) provides that a domicile once established continues until the individual moves to a new location with the bona fide intention of making such individual’s fixed and permanent home there. The 2021 Nonresident Audit Guidelines changed the “substantially all of the year” standard from 11 months to 10 months for tax years beginning on or after January 1, 2022. The Guidelines also address the 548-day rule for foreign country presence, holding that a taxpayer who worked in London during the time he was separated from his New York-based spouse failed the rule because he was not legally separated from her.

Florida Statutory Authority

Fla. Stat. § 222.17 allows a person to file a Declaration of Domicile with the clerk of the circuit court, stating that they reside in and maintain a place of abode in the county and recognize it as their permanent home. The statute expressly covers people who keep homes in other states: the declarant asserts that their Florida abode is their predominant and principal home. Fla. Stat. § 196.031 provides for homestead exemption, claiming the Florida home as permanent residence for property tax purposes, which doubles as a domicile marker because the taxpayer must swear the home is their permanent residence.

Judicial and Tribunal Decisions

Matter of Hoff and Ocorr-Hoff, DTA No. 850209 (N.Y.S. Tax Appeals Trib. Oct. 9, 2025), sustained a 2018 and 2019 domicile assessment against a couple who had registered to vote in Florida, obtained Florida driver’s licenses, filed a declaration of domicile, executed Florida estate planning documents, and spent less time in New York than in Florida during one of the years at issue. The Tribunal found that the Hoffs spent 186 days in New York, 131 days in Florida, and 48 days in other locations in 2018, and 164 days in New York, 153.5 days in Florida, and 47.5 days in other locations in 2019. The Tribunal emphasized that “had other manifestations, such as a comparison of homes, business and social ties and the amount of time spent in each place been more consistent with a change of domicile, these offers of documentary proof might be more persuasive”.

Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d 592 (2014), held that a taxpayer’s ownership of a residence and presence in New York for more than 183 days established statutory residency. The Court of Appeals clarified that a “permanent place of abode” must be suitable for residential use and the taxpayer must have the right to reside there.

Matter of Obus v. New York State Tax Appeals Trib., 206 A.D.3d 1511 (3d Dep’t 2022), affirmed that petitioners who spent more than 183 days in New York and maintained a vacation home in Northville, Fulton County, were statutory residents under N.Y. Tax Law § 605(b)(1)(B), even though they were domiciled in New Jersey.

Summary Table of Authorities

Authority	Full Citation	Type	Jurisdiction	Key Holding
NY Domicile Statute	N.Y. Tax Law § 605(b)(1)(A)	Statute	New York	Defines domicile-based residency and 30-day exception
NY Statutory Residency	N.Y. Tax Law § 605(b)(1)(B)	Statute	New York	Defines 183-day statutory residency test
NY Permanent Place of Abode	20 NYCRR § 105.20(e)(1)	Regulation	New York	Defines permanent place of abode
NY Nonresident Audit Guidelines	2021 Guidelines (Dec. 2021)	Agency guidance	New York	10-month standard for “substantially all of the year”
FL Declaration of Domicile	Fla. Stat. § 222.17	Statute	Florida	Process for filing declaration of domicile
FL Homestead Exemption	Fla. Stat. § 196.031	Statute	Florida	Homestead exemption as domicile marker
Hoff v. NY Tax Appeals Trib.	DTA No. 850209 (Oct. 9, 2025)	Tribunal	New York	Formal FL documents insufficient without substance
Gaied v. NY Tax Appeals Trib.	22 N.Y.3d 592 (2014)	Case	New York	Permanent place of abode must be suitable for residential use
Obus v. NY Tax Appeals Trib.	206 A.D.3d 1511 (3d Dep’t 2022)	Case	New York	Vacation home constituted permanent place of abode

Practical Application in Tax Practice

Direct answer: In practice, Florida vs. New York residency audits require taxpayers to prove by clear and convincing evidence that they abandoned New York domicile and established Florida domicile, and that they do not meet the statutory residency test. New York examines five primary factors: home, active business involvement, time, items near and dear, and family connections.

Research

Direct answer: Researching Florida vs. New York residency requires consulting N.Y. Tax Law § 605, 20 NYCRR § 105.20, the 2021 Nonresident Audit Guidelines, and Fla. Stat. § 222.17. Key cases include Matter of Hoff (2025), Matter of Gaied (2014), and Matter of Obus (2022).

Start with N.Y. Tax Law § 605 and 20 NYCRR § 105.20. Then consult the 2021 Nonresident Audit Guidelines for audit procedures and the five-factor domicile test. For Florida documentation, consult Fla. Stat. § 222.17 and Fla. Stat. § 196.031. The New York Tax Appeals Tribunal decisions and Division of Tax Appeals decisions provide interpretive guidance. The Florida Department of Revenue Technical Assistance Advisements address domicile for intangible tax purposes.

Audit

Direct answer: A New York residency audit typically begins with a questionnaire requesting detailed information about domicile, day counts, and Florida connections. The NYS DTF uses cell phone records, credit card statements, E-ZPass records, and flight histories to reconstruct the taxpayer’s year. The taxpayer bears the burden of proving domicile change by clear and convincing evidence.

The NYS DTF conducts residency audits through its Income Franchise Field Audit Bureau. The audit typically begins with a questionnaire and a request for documentation spanning multiple years. The NYS DTF uses Verizon statements and other cell phone records to establish the number of days spent in each location, as demonstrated in the Hoff case where the Tribunal used the taxpayers’ Verizon statements to establish day counts. The 2021 Nonresident Audit Guidelines require auditors to examine the five primary factors: home, active business involvement, time, items near and dear, and family connections. The taxpayer bears the burden of proving a change of domicile by clear and convincing evidence.

Appeals

Direct answer: A taxpayer may appeal a NYS DTF residency determination by filing a Petition with the New York State Division of Tax Appeals. The petition must be filed within 90 days of the Notice of Deficiency. The Administrative Law Judge issues a determination, which may be appealed to the Tax Appeals Tribunal under N.Y. Tax Law § 2006.

The NYS DTF’s audit process results in a Notice of Deficiency if additional tax is due. The taxpayer may protest the determination by filing a Petition with the Division of Tax Appeals under 20 NYCRR § 3000.3. The Administrative Law Judge issues a determination, which may be appealed to the Tax Appeals Tribunal under N.Y. Tax Law § 2006. The Tribunal’s decision is reviewable by the Appellate Division under N.Y. Tax Law § 2016 and Article 78 of the CPLR.

Litigation

Direct answer: Tax Appeals Tribunal decisions may be reviewed by the New York Appellate Division under N.Y. Tax Law § 2016 in accordance with Article 78 of the CPLR. The Appellate Division reviews the Tribunal’s decision on the administrative record. Questions of law are reviewed de novo.

Judicial review of Tribunal decisions is governed by N.Y. Tax Law § 2016, which provides that a decision of the Tax Appeals Tribunal shall be reviewable in accordance with the provisions of Article 78 of the CPLR. The Appellate Division reviews the Tribunal’s findings for substantial evidence and its legal conclusions for errors of law. The New York Court of Appeals may grant leave to appeal.

Planning Strategies

Direct answer: HNWIs considering a move from New York to Florida should consider seven primary planning strategies: (1) selling or genuinely disposing of the New York residence; (2) limiting New York days to 183 or fewer; (3) changing all formal registrations including voter registration, driver’s license, and estate planning documents; (4) moving “near and dear” items to Florida; (5) shifting business ties and income sources to Florida; (6) maintaining contemporaneous day-count records; and (7) documenting the business purpose of any New York activities.

Key planning strategies include: (1) Sell or genuinely dispose of the New York residence—the Hoffs’ continued, unrestricted use of their New York home during the audit period contributed to the Tribunal’s finding that they had not abandoned New York domicile. (2) Limit New York days to 183 or fewer to avoid statutory residency under N.Y. Tax Law § 605(b)(1)(B)—the Hoffs spent 186 days in New York in 2018, exceeding the threshold. (3) Change all formal registrations including voter registration, driver’s license, vehicle registration, and estate planning documents, though these are secondary factors. (4) Move “near and dear” items—family heirlooms, art, and personal effects—to Florida to support the domicile change. (5) Shift business ties and income sources to Florida—Mr. Hoff’s continued salary from his New York S corporation supported the Tribunal’s finding that domicile remained in New York. (6) Maintain contemporaneous day-count records using cell phone records, credit card statements, and calendar entries. (7) Document the business purpose of any New York activities to support sourcing determinations.

Interaction with Other Authorities

Direct answer: N.Y. Tax Law § 605 controls over inconsistent NYS DTF guidance and the 2021 Nonresident Audit Guidelines. Federal constitutional limits under the Due Process and Commerce Clauses constrain New York’s taxing authority but do not preempt state residency rules that are rationally related to a legitimate state interest. Florida’s Declaration of Domicile statute under Fla. Stat. § 222.17 is binding only in Florida.

Higher Authority

Direct answer: The U.S. Constitution is the highest authority, followed by the New York Constitution and N.Y. Tax Law. The Due Process Clause requires a minimum connection between New York and the taxpayer. The Commerce Clause prohibits state taxes that discriminate against or unduly burden interstate commerce.

Under the Due Process Clause, New York may tax an individual’s income only if the individual has sufficient minimum contacts with the state. The Commerce Clause prohibits state taxes that discriminate against interstate commerce or impose undue burdens on it. New York’s residency rules apply evenhandedly to residents and nonresidents and are generally upheld. The New York Court of Appeals in Gaied clarified the statutory definition of “permanent place of abode” and its application to nonresidents.

Lower Authority

Direct answer: The 2021 Nonresident Audit Guidelines, NYS DTF publications, and form instructions are lower authority than N.Y. Tax Law § 605 and 20 NYCRR § 105.20. The Guidelines are binding on audit staff but not on courts or taxpayers. Florida’s Declaration of Domicile under Fla. Stat. § 222.17 is persuasive evidence of Florida domicile but does not bind New York.

The 2021 Nonresident Audit Guidelines are without legal force or effect but are generally binding on New York State audit staff and provide a useful basis for challenging aspects of a personal residency audit. NYS DTF publications and form instructions provide agency interpretation but lack the force of law. Florida’s Declaration of Domicile under Fla. Stat. § 222.17 is persuasive evidence of Florida domicile but does not independently establish domicile or bind New York tax authorities.

Conflict Resolution

Direct answer: When the 2021 Nonresident Audit Guidelines conflict with N.Y. Tax Law § 605, the statute controls. When the Guidelines conflict with a New York court decision, the court decision controls. When Florida law conflicts with New York law on domicile, each state applies its own law to determine tax liability.

The resolution rule is that legislative enactments supersede administrative rules and guidance. N.Y. Tax Law § 605 controls over any inconsistent provision in the 2021 Nonresident Audit Guidelines. 20 NYCRR § 105.20 controls over inconsistent agency guidance, but is subject to the statute. New York court decisions interpreting § 605 are binding on all parties. Florida law applies to Florida tax obligations, but New York applies its own law to determine New York tax liability.

Sunset and Transition Rules

Direct answer: New York’s residency statute under N.Y. Tax Law § 605 has no scheduled sunset. The 2021 Nonresident Audit Guidelines’ 10-month standard is effective for tax years beginning on or after January 1, 2022, with no scheduled sunset. Florida’s Declaration of Domicile under Fla. Stat. § 222.17 has no scheduled sunset.

New York‘s residency statute has no scheduled sunset. The 2021 Nonresident Audit Guidelines‘ 10-month standard is effective for tax years beginning on or after January 1, 2022, with no scheduled sunset. Florida‘s Declaration of Domicile under Fla. Stat. § 222.17 has no scheduled sunset. The 548-day rule under 20 NYCRR § 105.20(b)(2) remains in effect for taxpayers claiming a change of domicile while working in a foreign country.

Common Errors and Pitfalls

Assuming Florida documentation alone establishes domicile. In Matter of Hoff, the Tribunal held that formal declarations such as voter registration and driver’s licenses are secondary factors and “have lost their importance in recent years as courts have recognized their self-serving nature”. The Hoffs registered to vote, obtained Florida driver’s licenses, and filed declarations of domicile, yet still lost their domicile case.
Failing to sell or genuinely dispose of the New York residence. The Hoffs’ continued, unrestricted use of their New York home during the audit period contributed to the Tribunal’s finding that they had not abandoned New York domicile.
Spending more than 183 days in New York. The Hoffs spent 186 days in New York in 2018, exceeding the statutory residency threshold under N.Y. Tax Law § 605(b)(1)(B). Presence for any part of a calendar day counts under 20 NYCRR § 105.20(c).
Retaining business ties to New York. Mr. Hoff’s continued salary from his New York S corporation in 2018 and 2019 supported the Tribunal’s finding that domicile remained in New York.
Failing to move “near and dear” items. The location of personal and sentimental belongings is a key factor in New York’s domicile analysis. Items left in New York suggest the taxpayer intends to return.
Underestimating New York’s data-gathering capabilities. The NYS DTF uses cell phone records, credit card statements, E-ZPass records, and flight histories to reconstruct the taxpayer’s year. The Hoff Tribunal used Verizon statements to establish day counts.
Ignoring the 10-month standard for statutory residency. The 2021 Nonresident Audit Guidelines changed the “substantially all of the year” standard from 11 months to 10 months for tax years beginning on or after January 1, 2022. Taxpayers who maintain a New York abode for more than 10 months risk statutory residency.
Failing to document day counts contemporaneously. Taxpayers who cannot produce contemporaneous records of days spent in each state face significant difficulty rebutting New York’s reconstructed day counts.

What This Article Does Not Cover

New York estate tax. New York imposes a separate estate tax with its own domicile rules. This article addresses only income tax residency audits.
Florida intangible tax. Florida’s intangible tax on assets owned by Florida domiciliaries under Fla. Stat. § 199.175 is separate from income tax residency.
New York City income tax. New York City imposes its own personal income tax on residents under N.Y. Admin. Code § 11-1701. City-level taxation is beyond the scope of this article.
Federal income tax residency. Federal residency under IRC § 7701(b) is separate from state domicile rules.
Criminal tax evasion. This article addresses civil residency audits and appeals, not criminal investigations.
Other states. This article focuses on Florida and New York. Other states with significant audit programs include California, Connecticut, New Jersey, and Massachusetts.

How to Verify This Article

Primary sources for verification:

New York State Department of Taxation and Finance: N.Y. Tax Law § 605, 20 NYCRR § 105.20, 2021 Nonresident Audit Guidelines, available at tax.ny.gov.
New York State Division of Tax Appeals and Tax Appeals Tribunal: Decisions available at dta.ny.gov.
New York Courts: Matter of Obus v. New York State Tax Appeals Trib., 206 A.D.3d 1511 (3d Dep’t 2022); Matter of Gaied v. New York State Tax Appeals Trib., 22 N.Y.3d 592 (2014), available at nycourts.gov.
Florida Legislature: Fla. Stat. § 222.17, Fla. Stat. § 196.031, available at leg.state.fl.us.
Florida Department of Revenue: Technical Assistance Advisements on domicile, available at floridarevenue.com.
Cornell Legal Information Institute: 20 NYCRR § 105.20 available at law.cornell.edu.

Query Fan-Out Answer Map

Fan-Out Question	Answered In	Answer Unit (verbatim)
What is a Florida vs. New York residency audit?	H2: What Is a Florida vs. New York Residency Audit?	A Florida vs. New York residency audit is a challenge by the New York State Department of Taxation and Finance to a taxpayer’s claim that they changed domicile from New York to Florida.
What is domicile for New York tax residency?	H2: Key Authorities and Cases > H3: New York Statutory Authority	N.Y. Tax Law § 605(b)(1)(A) defines a resident individual as one domiciled in New York unless the individual maintains no permanent place of abode in the state, maintains a permanent place of abode elsewhere, and spends not more than 30 days of the taxable year in the state.
What is the 183-day rule in New York?	H2: Key Authorities and Cases > H3: New York Statutory Authority	N.Y. Tax Law § 605(b)(1)(B) defines a statutory resident as one not domiciled in the state but maintaining a permanent place of abode for substantially all of the taxable year and spending more than 183 days in the state.
How does Florida define residency?	H2: Key Authorities and Cases > H3: Florida Statutory Authority	Florida has no income tax and no residency test of its own. Fla. Stat. § 222.17 allows a person to file a Declaration of Domicile with the clerk of the circuit court, stating that they reside in and maintain a place of abode in the county and recognize it as their permanent home.
How does a New York residency audit begin?	H2: Practical Application in Tax Practice > H3: Audit	A New York residency audit typically begins with a questionnaire and a request for documentation spanning multiple years, with the NYS DTF using cell phone records, credit card statements, and flight histories to reconstruct the taxpayer’s year.
What factors does New York examine in a domicile audit?	H2: What Is a Florida vs. New York Residency Audit? > H3: Current Scope	The five factors examined in a New York domicile audit are: home, active business involvement, time, items near and dear, and family connections.
What is the burden of proof for a New York domicile change?	H2: Key Authorities and Cases > H3: Judicial and Tribunal Decisions	The taxpayer bears the burden of proving a change of domicile by clear and convincing evidence, as stated in Matter of Bodfish v. Gallman, 50 A.D.2d 457 (3d Dep’t 1975).
What happened in Matter of Hoff and Ocorr-Hoff?	H2: Key Authorities and Cases > H3: Judicial and Tribunal Decisions	In Matter of Hoff and Ocorr-Hoff, DTA No. 850209 (Oct. 9, 2025), the Tribunal sustained a domicile assessment against a couple who had taken formal steps to establish Florida residency, finding that substance controls over documents.
How do you prove domicile change to New York?	H2: Practical Application in Tax Practice > H3: Planning Strategies	To prove a change of domicile to New York, a taxpayer must demonstrate by clear and convincing evidence that they abandoned New York domicile, including selling or genuinely disposing of the New York residence, limiting New York days to 183 or fewer, and shifting business ties to Florida.
How do you appeal a New York residency determination?	H2: Practical Application in Tax Practice > H3: Appeals	A taxpayer may appeal a NYS DTF residency determination by filing a Petition with the New York State Division of Tax Appeals within 90 days of the Notice of Deficiency.
Which courts hear New York residency disputes?	H2: Practical Application in Tax Practice > H3: Litigation	Tax Appeals Tribunal decisions may be reviewed by the New York Appellate Division under N.Y. Tax Law § 2016 in accordance with Article 78 of the CPLR.
Did New York residency rules change after 2025?	H2: Interaction with Other Authorities > H3: Sunset and Transition Rules	The 2021 Nonresident Audit Guidelines’ 10-month standard for “substantially all of the year” is effective for tax years beginning on or after January 1, 2022.
What planning strategies reduce New York audit risk?	H2: Practical Application in Tax Practice > H3: Planning Strategies	HNWIs should sell or genuinely dispose of the New York residence, limit New York days to 183 or fewer, change all formal registrations, move “near and dear” items to Florida, and shift business ties to Florida.
Can Florida documents alone establish domicile?	H2: Common Errors and Pitfalls	In Matter of Hoff, the Tribunal held that formal declarations such as voter registration and driver’s licenses are secondary factors and have lost their importance in recent years as courts have recognized their self-serving nature.
What records does New York use in audits?	H2: Common Errors and Pitfalls	The NYS DTF uses cell phone records, credit card statements, E-ZPass records, and flight histories to reconstruct the taxpayer’s year.

Frequently Asked Questions

What is a Florida vs. New York residency audit?

Direct answer: A Florida vs. New York residency audit is a challenge by the New York State Department of Taxation and Finance to a taxpayer’s claim that they changed domicile from New York to Florida. Florida has no income tax and does not audit residency claims, so the audit risk comes exclusively from New York, which tests whether the taxpayer abandoned New York domicile under N.Y. Tax Law § 605(b)(1)(A) and whether they remain a statutory resident under § 605(b)(1)(B).

What is the 183-day rule in New York?

Direct answer: Under N.Y. Tax Law § 605(b)(1)(B), an individual who is not domiciled in New York but maintains a permanent place of abode in the state for substantially all of the taxable year and spends more than 183 days in the state is a statutory resident and is taxable on all income. Presence for any part of a calendar day counts as a day spent in the state under 20 NYCRR § 105.20(c).

How do you prove domicile change to New York?

Direct answer: To prove a change of domicile to New York, a taxpayer must demonstrate by clear and convincing evidence that they abandoned New York domicile and established Florida domicile. The strongest evidence includes selling or genuinely disposing of the New York residence, limiting New York days to 183 or fewer, shifting business ties to Florida, and moving “near and dear” items to Florida. In Matter of Hoff, the Tribunal held that formal declarations such as voter registration and driver’s licenses are secondary factors.

What factors does New York examine in a domicile audit?

Direct answer: New York examines five primary factors in a domicile audit: (1) home—the size, value, and use of residences; (2) active business involvement—where business is conducted and income earned; (3) time—where the majority of days are spent; (4) items near and dear—location of personal and sentimental belongings; and (5) family connections—where immediate family resides.

How do you appeal a New York residency determination?

Direct answer: A taxpayer may appeal a NYS DTF residency determination by filing a Petition with the New York State Division of Tax Appeals within 90 days of the Notice of Deficiency under 20 NYCRR § 3000.3. The Administrative Law Judge issues a determination, which may be appealed to the Tax Appeals Tribunal under N.Y. Tax Law § 2006, and then to the Appellate Division under N.Y. Tax Law § 2016 and Article 78 of the CPLR.

Can Florida documents alone establish domicile?

Direct answer: No. In Matter of Hoff and Ocorr-Hoff, DTA No. 850209 (Oct. 9, 2025), the Tribunal held that formal declarations such as voter registration, driver’s licenses, and a Declaration of Domicile are secondary factors and have lost their importance in recent years as courts have recognized their self-serving nature. Had other manifestations, such as a comparison of homes, business and social ties, and the amount of time spent in each place, been more consistent with a change of domicile, the documentary proof might have been more persuasive.

Conclusion

Florida vs. New York residency audits present a unique dynamic for high-net-worth movers: Florida imposes no income tax and does not audit residency claims, while New York aggressively audits former residents who claim Florida domicile. New York’s two-part test under N.Y. Tax Law § 605 examines both domicile and statutory residency, with the 183-day rule under § 605(b)(1)(B) and the 10-month standard under the 2021 Nonresident Audit Guidelines. The 2025 Tax Appeals Tribunal decision in Matter of Hoff and Ocorr-Hoff underscores that formal Florida documentation—voter registration, driver’s licenses, and a Declaration of Domicile under Fla. Stat. § 222.17—is insufficient to establish domicile change without substantive abandonment of New York ties. Successful navigation requires selling or genuinely disposing of the New York residence, limiting New York days to 183 or fewer, shifting business ties and income sources to Florida, moving “near and dear” items, and maintaining contemporaneous day-count records. HNWIs considering a Florida move should anticipate the possibility of a New York residency audit and plan accordingly before changing domicile.

Author Bio

Alan Goldstein is an Enrolled Agent and researcher with 26 years of experience in federal and state tax controversy. He advises high-net-worth families and closely held businesses on income-shifting strategies, charitable planning, and IRS audit defense.

Author sameAs: [LinkedIn URL], [Professional Profile URL], [Published Works URL]

Last Updated: October 5, 2026

Next Scheduled Review: October 2027

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. THE INFORMATION MAY BE OUTDATED AND YOU ARE NOT TO RELY ON IT. CONTACT YOUR PROFESSIONAL TO GUIDE YOU BASED ON YOUR CURRENT SITUATION, OR WHAT MAY APPLY TO PREVIOUS YEARS. THIS ARTICLE IS ONLY MEANT TO PROVIDE GENERAL INFORMATION AND NOT A SPECIFIC ANSWER. YOU ARE NOT OUR CLIENT AND WE HAVE NOT ADVISED YOU.

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Author: agoldstein