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Posted by Katie on March 19, 2008, 5:06 pm
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> Thanks for your responses.
>
> Katie, the problem I have is in determining, or being able to
> demonstrate, the specific state we intend to return to. We are not
> estranged, and our long-distance arrangement is currently indefinite,
> but we intend it to be temporary since one of us will return to the
> first state we can both find jobs in. This could be TX or CA, but I
> don't see a way to document or demonstrate this intent. As a result,
> I
> really can't determine the specific domicile based on "intent to
> return".
>
> We have met the three requirements you mentioned to change domicile
> from NY, maintain no residence or other demonstrable ties there, and
> have no intent to return there. And since there's no way to
> demonstrate that one of us intends to move to join the other, it
> would
> seem that we could only claim to be domiciled in our current resident
> states.
>
> Also, as your responses indicate, a domicile in either TX or CA would
> be equivalent for tax purposes. Even if my wife were to claim to be
> domiciled in TX, half of my income for the period she is resident in
> CA would still be taxable there. The only difference I can tell in
> this case is that we would be able to file MFS, but this doesn't seem
> to be a major advantage.
>
> Please let me know if you think that claiming to be domiciled in our
> current resident states seems incorrect or inadvisable.
>
Under the circumstances, considering yourselves domiciled in your
current states of residence may be appropriate; but it doesn't appear
that either of you has really settled with the intention of making a
permanent home. Changing domicile is not just a matter of not
intending to go back to the old place; it's a matter of moving to a
new place with the intention of staying there. Until you've done
that, your domicile hasn't changed -- and you are still both domiciled
in NY.
It does make a difference because NY is a separate property
jurisdiction. Retaining your NY domicile won't make you NY residents
as long as you (a) maintain no place of abode in NY; (2) do maintain a
place of abode somewhere else (in CA and TX respectively); and (3)
have spent no more than 30 days of the taxable year in NY. The
advantage of NY domicile is that CA would have no claim on any of your
TX compensation.
I would advise you to get professional help with this, preferably from
a tax attorney. Remember that free advice is worth what you pay for
it <G>.
Katie in San Diego
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