SALT TALK: NYS Tax Department Confirms You Can’t Take it With You When You Go

Posted by Wayne K. Berkowitz CPA, J.D., LL.M. on May 20, 2019 11:30:00 AM
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By now, my loyal readers are all well versed in the rules of residency. We are all aware what a difference a day makes and just as aware that days (specifically 184) are far from the only issue in determining residency status. The domicile test, separate and apart from the mechanical day counting attached to the statutory residency test, in and of its own can make you a resident.

New York has a highly developed as well as entertaining fact-specific body of case law examining the nuances attached to domicile determination. The most amusing of these tirades through the most intimate details of one’s personal life tend to revolve around the location of near and dear items.

We all know by now that New York auditors are going to look so closely at where your photo albums are located, where is the dog, your love interests, golf trophies, art collection, Trini Lopez records (stereo and mono[1]), and now even your trees?

I have a beautiful Japanese maple tree located in my front yard. Probably one of the reasons why my wife would never want to move, hence my domicile could never change, is the simple fact that she would never entrust the care of the tree to the subsequent owners. Well, apparently a Mrs. McManus had similarly strong feelings about her Copper Beech tree. Upon moving from their Katonah, New York home to Ridgefield, Connecticut, five trees, including the Copper Beech, were transplanted. Copper Beech trees can grow to over 100 feet tall, so this is no easy task.

Yet an Administrative Law Judge[2] (ALJ) held the uprooting was not sufficient to constitute a change of the McManus’s domicile. When reviewing a client’s plans to relocate near and dear items, I would certainly be impressed favorably by the relocation of five large trees. So why did the McManus’s domicile change fail? It all comes down to the taxpayer having the burden of proof and from the perspective of the ALJ, a lack of credibility through the presentation of vague testimony. “Near and dear items are personalty that can be transferred from one location to another location.” As the ALJ proclaimed taking it with you will not result in a change of domicile? I think not. Nevertheless, moving your dog, love interest, art and even 100 foot trees may not be enough.

If you have residency questions, contact me at

Wayne Berkowitz, a tax partner and head of the State and Local Tax Group at Berdon LLP, advises on the unique requirements of governments and municipalities across the nation

[1] Consider this reference a shout-out to a one-semester college roommate, whose name I cannot even remember, who had every single Trini Lopez record in both stereo and mono versions. Note the emphasis on one semester.

[2] In the Matter of the Petition of Thomas McManus DTA No. 827116, February 7, 2019.


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