Why does a residency audit look different in a statutory residency state than in a presumptive residency state?

Two models built from the same two concepts

Every state discussed here starts from domicile, the one place a person treats as the permanent home. The models differ in what else makes a person a resident.

California's statute treats as a resident "every individual who is in this state for other than a temporary or transitory purpose" and "every individual domiciled in this state who is outside the state for a temporary or transitory purpose" (Rev. and Tax. Code section 17014(a); FTB Residency and Sourcing Technical Manual section 2100, rev. Jan. 2026). Its only general day rule is a presumption: an individual "who spends in the aggregate more than nine months of the taxable year within this state shall be presumed to be a resident," and the presumption "may be overcome by satisfactory evidence that the individual is in the state for a temporary or transitory purpose" (Rev. and Tax. Code section 17016; RSTM section 2400). The statute supplies no converse presumption of nonresidence. The Franchise Tax Board describes residency as "primarily a question of fact" and states that the strength of the taxpayer's ties, not their number, is what counts (FTB Publication 1031 (2025)), and the Office of Tax Appeals applies the rule that "the state with the closest connections during the taxable year is the state of residence" (Appeal of Bracamonte, 2021-OTA-156P).

Illinois uses the same structure in nearly the same words: a resident is an individual who "is in this State for other than a temporary or transitory purpose during the taxable year" or who "is domiciled in this State but is absent from the State for a temporary or transitory purpose" (35 ILCS 5/1501(a)(20)(A)). The Department of Revenue's regulation says whether a purpose is temporary or transitory "will depend upon the facts and circumstances of each particular case," and it lists two presumptions: an individual receiving a homestead exemption for Illinois property, and an individual who was an Illinois resident in one year and in the next year is present in Illinois for more days than in any other state. Those presumptions "are not conclusive and may be overcome by clear and convincing evidence to the contrary" (86 Ill. Adm. Code 100.3020(c), (f)). California asks for satisfactory evidence to rebut its presumption; Illinois asks for clear and convincing evidence. The library's articles on California's six-month and nine-month rules and on Illinois residency take those presumptions apart.

The statutory model adds a test that needs no finding about purpose. New York taxes as a resident an individual "who maintains a permanent place of abode in this state" and "spends in the aggregate more than one hundred eighty-three days of the taxable year in this state," whether or not domiciled there (Tax Law section 605(b)(1)(B)). New York's highest court has described the two routes this way: "An individual may be taxed as a 'resident' in one of two ways," by domicile or by the statutory test, and the statutory test "is intended to discourage tax evasion by New York residents" (Matter of Gaied v. New York State Tax Appeals Tribunal, 22 NY3d 592 (2014)). Connecticut's text is close to New York's: a person "not domiciled in this state" who "maintains a permanent place of abode in this state and is in this state for an aggregate of more than one hundred eighty-three days of the taxable year" (Conn. Gen. Stat. section 12-701(a)(1)(B)). Massachusetts uses the same abode and more-than-183-day test and adds that the count includes "days spent partially in and partially out of the commonwealth" (Mass. Gen. Laws ch. 62, section 1(f)(2)).

Maryland shows that the statutory states are not uniform. Its statute reaches an individual who, "for more than 6 months of the taxable year, maintained a place of abode in this State, whether domiciled in this State or not," with no day count in the statutory text (Md. Code, Tax-Gen. section 10-101(k)(1)). The Comptroller's regulation pairs that abode test with a second element, spending "in the aggregate, 183 days or more within this State," and defines a day to include "any part of a day," while "a continuous period of 24 hours or less may not constitute more than 1 day" (COMAR 03.04.02.01B(1), (7)). Among these four states the threshold is "more than" 183 days in three and "183 days or more" in one, only Maryland's statute fixes in its own text how long the abode must be maintained, and partial days are addressed in different places. Each state's text has to be read.

The mechanical approach extends to the domicile side. New York and Connecticut treat a domiciliary as a nonresident who maintains no permanent place of abode in the state, maintains one elsewhere, and spends not more than 30 days of the year there (Tax Law section 605(b)(1)(A); Conn. Gen. Stat. section 12-701(a)(1)(A)). A California domiciliary's exit is a factual finding that the absence was for other than a temporary or transitory purpose, or the 546-day employment contract rule covered in the library's article on that safe harbor.

Who has to prove what

The burden rules follow the models. In California, the Franchise Tax Board's "determinations of residency are presumptively correct," the taxpayer "bears the burden of showing error in those determinations," and "unsupported assertions are insufficient to satisfy a taxpayer's burden of proof" (Appeal of Bracamonte, 2021-OTA-156P). The burden of proving a change of domicile rests on "the party asserting such change," which put the burden on the Franchise Tax Board where it contended that a taxpayer had moved into California (Appeal of Beckwith, 2022-OTA-332P), and if doubt remains after the facts are presented, "domicile must be found to have not changed" (RSTM section 2500). Examiner and taxpayer argue one question, how the connections weigh, and the taxpayer must show they were weighed wrongly.

In a statutory case the question splits. On the statutory residency track, "it is the taxpayer's burden to establish that he or she was not a statutory resident of New York during the relevant tax year" (Matter of Ruderman v. Tax Appeals Tribunal, 170 AD3d 1442 (3d Dept 2019)). In Ruderman, a Florida domiciliary with a New York apartment lost because his testimony and affidavits lacked specificity and he "failed to prove that he was not in New York for more than the requisite 183 days." The abode element can still be disputed: in New York it requires a "residential interest in the property," not mere maintenance (Gaied). On the domicile track, the party asserting a change of domicile must prove it by clear and convincing evidence (Matter of Campaniello v. New York State Division of Tax Appeals Tribunal, 161 AD3d 1320 (3d Dept 2018)).

A statutory audit therefore runs two examinations at once, one built from documents of presence and one from evidence of intent and ties, and a taxpayer who wins the second can still lose the first.

Days decide one case; connections decide the other

In a statutory case, intent does not enter the residency test. Once an abode exists, the count is arithmetic, and every day the taxpayer cannot place outside the state is at risk. A retired executive domiciled in Florida who keeps a Boston condominium and spends 190 days in Massachusetts, partial days included, meets the Massachusetts test whatever the strength of the Florida ties, because the statute asks about an abode and days and nothing else. The deciding evidence is the abode record (acquisition, use, disposition) and a day-by-day account of presence anchored to third-party records. The library's article on New York's 183-day test covers New York's counting rules and the records that prove a count.

In a facts-and-circumstances case, the same 190 days decide nothing by themselves. If the same executive spends 190 days in California, less than nine months, no statutory presumption arises. The question becomes whether the presence was for a temporary or transitory purpose, judged against the closest connections. Days still matter, because "physical presence is a factor of greater significance than mental intent" and outweighs "the formalities that tie one to a particular state" (Appeal of Bracamonte, 2021-OTA-156P). But they are weighed alongside the home, the family, the registrations, the professional relationships and where financial life is conducted, and the Franchise Tax Board states that no one factor is determinative (FTB Publication 1031 (2025)). A day log that would end a statutory case is one exhibit here. The library's articles on the FTB's evaluation of a claimed change of residency and on California day counts describe that weighing.

Domicile does not change character between models. California requires actual physical residence in a new place and an intent to remain there permanently or indefinitely, with intent gathered from the individual's acts (Appeal of Beckwith, 2022-OTA-332P). New York defines domicile through "physical presence in a particular locality coupled with the intent to remain," and in Campaniello the Appellate Division weighed Florida business ties, a Florida driver's license and Florida days against a retained New York condominium, New York business and family and medical ties, and 169 New York days. The domicile half of a New York audit therefore looks like a California audit. What the statutory states add is a second test that can make the domicile answer irrelevant to the tax.

Resident of two states at once

The two models can operate on the same person in the same year. Consider an engineer domiciled in California whose spouse and children stay in the family home while the engineer takes a twelve-month project assignment in New York beginning in January, leases an apartment there for the year, flies home most weekends, and spends 200 days in New York. California can treat the engineer as a resident on a finding that the absence is temporary or transitory, a facts question. New York treats the engineer as a resident because of the apartment and the day count, with no finding needed at all. Each state then taxes all of the engineer's income.

The resident credit, the usual cure for overlapping tax, is built for income earned in one state and taxed by another. New York allows its residents a credit for another state's tax only "upon income both derived therefrom and subject to tax under this article" (Tax Law section 620(a)), which the Appellate Division reads as income "earned in the other [s]tate" (Chamberlain v. New York State Department of Taxation and Finance, 166 AD3d 1112 (3d Dept 2018)). The Franchise Tax Board states that California residents may claim its credit "only if the income taxed by the other state has a source within the other state," and that "income from intangible personal property (such as interest and dividends) generally has a source where the owner resides" (FTB 2025 Instructions for Schedule S). Illinois measures its credit by the base income "that would be allocated or apportioned to other states if all other states had adopted the provisions in Article 3 of this Act" (35 ILCS 5/601(b)(3)), that is, by Illinois's own sourcing rules. Wages earned in New York have a New York source, so the ordinary credit is where relief on them is found. Interest, dividends and capital gains on securities have no source in the other state, and neither credit is written to reach them.

New York's courts have upheld the result. The Court of Appeals sustained New York's tax on statutory residents "who, as domiciliaries of New Jersey, were subject to resident income tax in New Jersey on certain income also taxed by New York," because "each tax was permissibly imposed under a different theory" (Matter of Zelinsky v. Tax Appeals Tribunal, 1 NY3d 85 (2003), describing Matter of Tamagni v. Tax Appeals Tribunal, 91 NY2d 530 (1998)). After the United States Supreme Court decided Comptroller of the Treasury of Maryland v. Wynne, Connecticut domiciliaries taxed as New York statutory residents renewed the challenge. The First Department held that Wynne did not abrogate Tamagni, because Wynne involved neither domiciliaries taxed as statutory residents of another state nor "intangible investment income," which "has no identifiable situs" (Edelman v. New York State Department of Taxation and Finance, 162 AD3d 574 (1st Dept 2018)). The Third Department agreed in Chamberlain, affirming summary judgment for the state on an assessment of about $2.7 million on interest, dividends and capital gains. The exposure falls hardest on a taxpayer with a large investment gain in a year when a statutory test is met.

Documenting a planned move under each model

A move out of a statutory state is documented around two facts the statute names. The first is the abode: the date the residence stopped being maintained (a closing, a lease termination, a tenant's possession) and how much of the year it was maintained, measured against that state's duration element, which in Maryland is more than six months and in New York is substantially all of the year as the library's articles on New York explain. The second is the calendar: a contemporaneous log of days, anchored to records made for other purposes, with partial days counted the way that state counts them. The domicile track still needs its leave-and-land record, but only the abode and calendar records can end the statutory question outright.

A move out of a presumptive residency state is documented around ties. The record that carries the case shows the connections shifting together: the family relocated, the former home sold or leased, the driver's license, vehicle registrations and voter registration changed, new physicians and advisers engaged, accounts serviced from the new state, and a calendar that shows the new state as the center of life. In Illinois, two items deserve attention because each triggers a presumption: the homestead exemption on any retained Illinois property, and the following year's days, since a resident of one year who is present in Illinois more days than in any other state in the next year is presumed to remain a resident (86 Ill. Adm. Code 100.3020(f)). In California, more than nine months in the state raises the presumption, and the day record also feeds the weighing below that line.

Arriving in a statutory state while the domicile stays behind needs its own plan. Leasing or buying a dwelling is what makes the day count operative, so the count is best projected before the lease is signed, and a liquidity event in a year both states may claim residence warrants a computation of both resident taxes and both credits before it closes.

Practice notes

Begin by identifying which model each involved state uses, then read each state's own text for the abode element, its duration, the day threshold and the partial-day rule; small differences in wording produce large differences in result. In a statutory audit, separate the response into the abode-and-days record and the domicile record, and concede nothing on one track by arguing the other. In a facts-and-circumstances audit, build the comparison of ties first and present the day record as support for it, not as the case itself. For any client domiciled in one state with access to a dwelling in a statutory state, track the days monthly, and test any year with a large investment gain against both states' resident taxes and credits before the year closes, since the New York courts have rejected the constitutional challenge to double taxation of intangible income. G&G State Tax Group provides multistate residency planning and residency audit representation alongside its state and local tax practice.