Leaving New York for Florida: How New York Residency Audits Work

If you move from New York to Florida and start filing as a New York nonresident, there is a real chance New York will ask you to prove it. That request is a residency audit. In short, the state asks two questions: did you actually give up your New York domicile, and even if you did, did you keep a New York home and spend more than 183 days in the state? The person claiming the move carries the burden of proof, and the standard is "clear and convincing" evidence.

I am a Realtor, not a CPA or a tax attorney, and this is not tax advice. What follows is a plain-English walk through what the New York State Department of Taxation and Finance says in its own published Nonresident Audit Guidelines (December 2021 edition), so you know what the state looks at before you sit down with a professional. For the Florida side of the move (declaration of domicile, driver license, homestead), see my guide on how to establish Florida residency. This article is about the New York side.

Two Ways New York Can Call You a Resident

Under Section 605(b) of the New York Tax Law, as summarized in the audit guidelines, you are a New York resident for income tax purposes if either of these is true:

• You are domiciled in New York. Domicile is the place you intend to be your permanent home, the place you return to whenever you are away. You can own several residences, but you only have one domicile.
• You are a statutory resident. You are not domiciled in New York, but you maintain a permanent place of abode in the state and spend more than 183 days of the year there. This is the well-known 183-day rule.

These are separate tests, and an audit can look at both. The difference matters because, according to the Tax Department’s residency FAQ, residents pay New York tax on all of their income no matter where it is earned, while nonresidents pay only on New York source income.

The Five Primary Factors New York Weighs for Domicile

Domicile is about intent, and intent is proven by how you live, not by what you declare. The guidelines tell auditors to start with five primary factors and to compare your New York ties against your ties elsewhere, factor by factor and then all together:

1. Home. How you use and maintain your New York residence compared to your Florida one: size, value, how each is held, and how you actually use it. Keeping a New York house does not by itself defeat a move.
2. Active business involvement. Whether you are still actively running or managing a New York business. Passive investment is not the issue, but day-to-day control from Florida still counts.
3. Time. A comparison of how much of the year you spend in New York versus Florida. The guidelines specifically note that retirees "summering" in New York is consistent with a genuine move south.
4. Items "near and dear." Where you keep the things that matter most to you: family heirlooms, art, collections, photo albums, and pets. Leaving those in the old house sends a signal.
5. Family connections. Mainly your spouse or partner and minor children, and especially where minor children go to school.

The guidelines say the review of these primary factors will decide domicile in "virtually all cases." There is a reminder in there for Western New Yorkers, too: in a case the guidelines cite, a couple with a Florida home, Florida licenses, and Florida voter registration were still found to be Buffalo domiciliaries, with the tribunal calling their family ties to Buffalo "critical" to its decision.

Why Your Florida Paperwork Is Not Enough

Voter registration, driver license, car registration, and where your mail goes are listed in the guidelines as "other" factors. They are considered secondary because, as the guidelines put it, they are easy for a person to control. They only come into play if the primary factors point toward New York or are roughly balanced.

Do them anyway, since leaving New York versions active looks inconsistent. Just know they will not carry a case on their own. The Tax Department’s FAQ says it plainly: "It is not enough simply to file a certificate of domicile or register to vote in the new location."

The Burden of Proof Is on You

Under the guidelines, the person claiming a change of domicile has to prove it, and the evidence must be "clear and convincing." A few points worth knowing:

• Ties to both states can sink you. The guidelines quote a case where strong ties to both New York and Florida meant the move was not proven, because persuasive arguments could be made for either state.
• Not being audited is not approval. Years of unchallenged nonresident returns do not mean New York accepted your status.
• Motive does not matter. Moving to save on taxes is fine, as long as the move is real and your actions back it up.

Day Counting and the Records That Support It

If you keep a permanent place of abode in New York, you carry the burden of proving you were not in the state more than 183 days. The FAQ frames it as 184 days or more. Two rules surprise people:

• Any part of a day counts as a day. Driving in for lunch, shopping, or a grandchild’s game counts, and you do not need to be at your New York home for the day to count.
• Travel is a narrow exception. Presence solely to board a plane, train, ship, or bus to a destination outside New York, or simply passing through, is generally not counted.

The guidelines list records auditors typically request: diaries and calendars, credit card and bank statements, ATM receipts, phone and utility records for both homes, flight itineraries, hotel receipts, E-ZPass records, and moving bills. Credible testimony and affidavits can fill gaps, but a record kept as you go beats rebuilding a year from memory.

Keeping a Home in New York

Plenty of people keep the Rochester or Buffalo house, a lake camp, or an apartment near family. That can work, but go in with eyes open:

• It can make you a statutory resident. A permanent place of abode is generally a dwelling suitable for year-round use that you maintain, owned or not. A vacation home used only in summer can still qualify if it is suitable for year-round living. A camp or cottage suitable only for vacations generally does not.
• "Substantially all of the year" matters. The abode generally has to be maintained for substantially all of the tax year. Starting with tax year 2022, audit policy generally treats that as more than 10 months in the year you acquire or dispose of a home.
• The year you move can still be a resident year. The guidelines explain that if you keep the New York home for substantially all of the year and spend more than 183 days in New York, you can be taxed as a resident for the whole year even if your domicile changed partway through.
• It changes the Home factor. Shifting the New York house from year-round to seasonal use supports a move. Using it just as before undercuts one.

The guidelines do note that selling your only New York residence while acquiring a home elsewhere is an important signal of intent. If you are weighing sell versus keep, see my New York to Florida relocation guide.

What New York Can Still Tax After You Move

Even a clean move does not cut New York off completely. According to the instructions for Form IT-203, a nonresident’s New York source income includes income from:

• real or tangible property located in New York, such as rental income or gain from selling a New York property;
• services performed in New York; and
• a business, trade, profession, or occupation carried on in New York, including a New York S corporation you own shares in.

The same instructions say New York source income does not include certain pensions protected by federal law (4 U.S.C. section 114), qualifying annuities, or interest, dividends, and gains from intangible property like stocks, unless they are tied to a New York business.

Two more items worth flagging. If you work remotely from Florida and your primary office is in New York, the FAQ says your telecommuting days are generally treated as days worked in New York unless your employer has established a bona fide employer office at your location. And under Tax Law Section 663, cited in the guidelines, nonresidents selling New York real property are generally required to pay estimated tax on the gain at the time of sale.

For what changes on the Florida side, see my overview of Florida’s tax perks.

Practical Documentation Habits

None of this requires a law degree, but it does take a little discipline. Habits that line up with what auditors ask for:

• Keep a simple calendar of where you spend each day, and note travel days.
• Save flight confirmations and hotel receipts in one folder per year.
• Keep the movers’ bill of lading and a list of what went to Florida, especially sentimental items.
• If you still have a New York business role, document how your duties have changed.
• Keep utility bills for both homes; they show seasonal patterns.

If you are still deciding when to close, my Q4 closing timeline explains why the calendar matters on the Florida side as well.

Frequently Asked Questions

Does Spending More Than 183 Days in Florida Mean I Am Not a New York Resident?

Not by itself. Days in Florida help the Time factor, but domicile looks at all five primary factors. Separately, the 183-day statutory test turns on days spent in New York and whether you keep a New York abode.

Who Should I Talk To?

A CPA or tax attorney with specific New York residency audit experience, ideally before you move rather than after a letter arrives.

Planning a Move From New York?

I grew up in Rochester and made this move myself, and New York to Florida relocation is the core of what I do. I cannot give tax advice, but I can help you time the purchase, coordinate the sale up north, and connect you with professionals who handle New York residency questions. Reach out to me here and let’s talk about your plan.

More for New Yorkers Moving to Florida

This is part of my series on making the move from New York to Florida. Keep reading:

• Buying a Home in Florida vs. New York: How the Process Is Different
• The Complete New York to Florida Relocation Guide

Sources

NYS Department of Taxation and Finance, Nonresident Audit Guidelines (December 2021); NYS DTF, Frequently Asked Questions about Filing Requirements, Residency, and Telecommuting; NYS DTF, Instructions for Form IT-203, Nonresident and Part-Year Resident Income Tax Return. This article is general information, not legal or tax advice; consult a CPA or tax attorney experienced with New York residency for your situation.