The snowbird domicile fight
You can move to Florida and still owe New York. Domicile and residency are two different tests, states apply both, and auditors decide the first one by asking where you keep the things you would grab in a fire — the photographs, the jewellery, the dog. One Illinois couple fought a $1.8 million assessment over a fourteen-day difference and won.
Florida's constitutional promise is short. Article VII, Section 5(a) bars the state from taxing estates, inheritances, or the income of natural persons beyond whatever federal credit might exist — and no such credit does. No state income tax. No state estate tax.
That promise is why a substantial share of the northeast winters here, and why three state revenue departments in particular have built serious practices around not letting people leave.
The first thing to understand is that domicile and residency are different tests, and losing either one costs you. Domicile is your one true permanent home — the place you intend to return to, of which you can have exactly one. Statutory residency is arithmetic: in New York, New Jersey, and most states that use it, maintaining a permanent place of abode in the state plus spending more than 183 days there makes you a full resident even if your domicile is unquestionably Florida.
So a family can win the domicile argument outright, be Floridians in every sense a court would recognize, and still owe New York income tax on their worldwide income because they kept the apartment and stayed 184 nights.
What auditors actually look at
New York's nonresident audit guidelines are published, which makes New York the most legible of the departure states. Its domicile analysis turns on five primary factors: the home, active business involvement, time, family connections, and near-and-dear items.
That last one is the famous one, and practitioners call it the teddy bear test. Auditors ask where you keep the things whose value is sentimental rather than monetary — family photographs, the art, the heirlooms, the jewellery, the pets. Insurance riders on scheduled personal property are pulled precisely because they say where the valuable objects physically are. If the wedding album and the Labrador are still in Scarsdale, that is evidence about intent, and it is evidence a spreadsheet cannot rebut.
The rest of the file is mundane and comprehensive:
- Day counts, reconstructed from your own data. Credit-card settlements, E-ZPass records, cell-phone tower data, airline itineraries, and building-entry logs. A partial day in the state generally counts as a full day.
- Voter registration. Where you are registered, and — more damaging — where you actually voted.
- Driver's licence and vehicle registration. Including which state's insurance rates you are paying.
- Physicians, dentists, and specialists. Illinois's current regulation lists healthcare provider locations expressly. Continuing to fly north for every appointment is a fact.
- Homestead and property-tax exemptions. Claiming an owner-occupied exemption in the departure state is close to fatal, and Florida's own homestead exemption requires permanent residence — so the two are mutually exclusive by design.
- Professional licences, club memberships, religious affiliations, safe deposit boxes, and where the mail actually goes.
None of these is individually decisive. That is the point of a factor test, and it is also why these audits take years.
Cain v. Hamer: a near-even split, and the taxpayers win
The best-documented snowbird case in the country is Illinois's, and the taxpayers won it.
Tyler and Talbot Cain had lived and worked in Illinois from 1964 until 1995 and filed as Illinois residents the whole time. In November 1995 they executed and filed a Florida declaration of domicile renouncing Illinois residency. They obtained Florida permanent-resident identification cards, Florida driver's licences, registered and voted in Florida, received Florida jury summonses, and bought burial plots in Florida. Mr. Cain held a Florida firearm licence and carried a Florida-area-code mobile phone.
They also kept the Illinois house and kept coming back. The day counts are the astonishing part. In 1996: 159 days in Florida, 161 in Illinois, 45 elsewhere. In 2004: 170 in Florida, 171 in Illinois, 24 elsewhere. Across 1996 through 2005: 1,700 days in Florida, 1,666 in Illinois — a difference of thirty-four days over a decade.
The Illinois Department of Revenue assessed $1,842,582 in tax and penalties for 1996 through 2004. The circuit court granted summary judgment for the Cains, calling them mere seasonal visitors. On July 16, 2012, the Appellate Court of Illinois affirmed in Cain v. Hamer, 2012 IL App (1st) 112833.
The reasoning is the useful part. Spending roughly equal time in two states did not make the Illinois presence anything other than temporary or transitory, because the other evidence of intent — the declaration, the licences, the voting, the accounts, the burial plots — pointed decisively one way. Time is a factor. It is not the factor.
Gaied: the abode has to be yours
New York's statutory-residence test caught people who did not think of themselves as having a New York home at all — until 2014.
In Matter of Gaied v. New York State Tax Appeals Tribunal, 22 N.Y.3d 592, decided February 18, 2014, the taxpayer owned a multi-family building on Staten Island. His parents lived in one apartment; he leased the other two to tenants and stayed at his parents' place occasionally to attend to their medical needs. The Department treated the building as his permanent place of abode, which — combined with his day count — made him a New York statutory resident.
The New York Court of Appeals, the state's highest court, reversed. Reading the statute against its purpose of taxing people who are in fact residents, it held that for a dwelling to be a permanent place of abode the taxpayer must himself have a residential interest in the property. Owning it is not enough. Paying for it is not enough. There has to be evidence the taxpayer actually used it as a residence.
Gaied is now the case cited whenever a departure state points at a property a taxpayer owns but does not live in — a child's apartment, a rental, a family building. It is a genuine limit, and a narrow one. It does nothing at all for the person who keeps a real apartment and simply stays too long.
The same two doors
New Jersey runs the identical structure. Under N.J.S.A. 54A:1-2(m), an individual who is not domiciled in New Jersey is nonetheless a resident if they maintain a permanent place of abode there and spend more than 183 days of the taxable year in the state. Domicile is the separate test, defined the ordinary way: the place you consider your permanent home and intend to return to.
Which means the escape has two conditions, and both must hold. Change your domicile, and either give up the northern home or stay under the day count. Doing one without the other buys nothing.
Timeline
- 1968Fla. Const. Art. VII, §5(a) bars the state from taxing estates, inheritances, or the income of natural persons beyond a federal credit that no longer exists.
- Nov 1995Tyler and Talbot Cain file a Florida declaration of domicile under §222.17, renouncing Illinois residency, and begin a decade of near-even day splits.
- 1996–2004The Illinois Department of Revenue assesses $1,842,582 in income tax and penalties against them.
- Jul 16, 2012Cain v. Hamer, 2012 IL App (1st) 112833: the Appellate Court affirms summary judgment for the taxpayers. Equal time in two states does not defeat clear evidence of Florida intent.
- Apr 19, 2013Illinois amends 86 Ill. Adm. Code §100.3020, adding two rebuttable presumptions of Illinois residency that require clear and convincing evidence to overcome.
- Feb 18, 2014Matter of Gaied, 22 N.Y.3d 592: a dwelling is a permanent place of abode only if the taxpayer has a residential interest in it. Bare ownership is not enough.
- As of Aug 2026New York, New Jersey, and Illinois continue to run residency audit programs against departing residents. The two-test structure — domicile plus the 183-day statutory rule — is unchanged.
What actually went wrong
- Treating the move as a paperwork exercise. A declaration of domicile, a driver's licence, and a voter card are necessary and nowhere near sufficient. The Cains won because they had all of that and burial plots, bank accounts, jury service, and a decade of consistency — not because they filed a form.
- Winning domicile and losing residency. These are separate tests. Keeping the northern apartment and spending 184 days there makes you a full resident of that state regardless of where your domicile is. Both boxes have to be ticked.
- Keeping the homestead exemption in the old state. In Illinois it now creates a rebuttable presumption of residency requiring clear and convincing evidence to rebut. Florida's own homestead exemption requires permanent residence here, so claiming both is not a strategy — it is an admission.
- Leaving the near-and-dear things behind. The photographs, the art, the jewellery, the pets. Auditors pull insurance riders precisely because scheduled property has a stated location. This is the factor people never think to move.
- Not counting days contemporaneously. Audits are reconstructed from credit cards, toll transponders, phone records, and flight data — usually years later, and usually more accurately than memory. A partial day generally counts as a whole one. The only defence is a contemporaneous log.
Would it have gone that way in Florida?
Florida will take you gladly. Getting the other state to let go is the entire job — and it is evidentiary, not procedural.
Florida's side of the transaction is genuinely simple. Fla. Const. Art. VII, §5(a) prohibits a state tax on estates, inheritances, or the income of natural persons beyond a federal credit that no longer exists. There is nothing to apply for and nothing to owe.
The formal filing is §222.17, the declaration of domicile. Subsection (1) lets a person who has established a Florida domicile file a sworn statement with the clerk of the circuit court in their county. Subsection (2) covers the exact snowbird case: a person domiciled in Florida who also maintains a place of abode elsewhere may declare that the Florida home is their predominant and principal home, which they intend to continue permanently. Subsection (3) requires the declaration to state the person's Florida address, the former residence, and any other place where they maintain an abode. The declaration is sworn and recorded by the clerk.
Two things it is not. It is not conclusive — §222.17(7) expressly preserves every other existing method of proving and evidencing domicile, which means an out-of-state auditor may weigh it alongside everything else and is not bound by it. And it is not one-way: §222.17(4) lets a person domiciled outside Florida file a counter-declaration in any Florida county where they own property, stating their intent to keep their existing domicile so that owning here does not imply otherwise. Snowbirds who genuinely do not intend to change domicile should know that provision exists.
The domicile question also decides where the estate is administered. §733.101 places venue for a Florida-domiciled decedent in the county of domicile; for a decedent domiciled elsewhere, in any county where the decedent's property is located, and failing that, where a debtor resides. Get domicile wrong and the family inherits an ancillary administration in one state on top of a primary administration in another — plus, potentially, a departure state's estate tax where Florida would have charged nothing.
The honest caveat: no filing wins an audit. Cain v. Hamer was won on a decade of consistent, documented behaviour, and the taxpayer's evidence had to be strong enough to carry a clear-and-convincing burden. Illinois then changed its regulation so that the same facts would face a presumption today. New York's Gaied limit protects only the person who does not actually use the northern property as a residence. There is no clever structure here. There is only the record you build, month by month, and whether it says what you say it says.
The practical instruction, and it is specific. Do six things in the first ninety days and then keep a calendar. File the §222.17 declaration with your Florida county clerk. Apply for the Florida homestead exemption and formally surrender the one in the departure state. Get the Florida driver's licence and register the cars here. Register to vote here and then actually vote. Move the primary-care physician, dentist, and specialists. Move the near-and-dear property — the albums, the art, the jewellery, the animals — and update the insurance riders so the schedules say Florida. Then log every day you spend in the departure state, contemporaneously, for as long as you own property there.
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Further reading
Third-party sites. Not ours, not endorsed, not kept current by us — just the places worth going next.
Sources
- Cain v. Hamer, 2012 IL App (1st) 112833 — opinion — Illinois Courts, Jul 2012
- Cain v. Hamer (2012) — FindLaw Caselaw
- Illinois tries to ensnare snowbirds (again) — Illinois State Bar Association, Aug 2013
- Matter of Gaied v. New York State Tax Appeals Tribunal, 22 N.Y.3d 592 (2014) — Justia / New York Court of Appeals, Feb 2014
- Matter of Gaied v. New York State Tax Appeals Tribunal — 2014 NY Slip Op 01101 — New York Official Reports
- What to expect in a residency audit — Hodgson Russ LLP
- Establishing Florida residency for tax purposes: departure state audits and the 183-day rule — Alper Law
- Changing your residency — it's harder than you think — Riker Danzig (New Jersey)
- Fla. Stat. §222.17 — Manifesting and evidencing domicile in Florida — The Florida Senate
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Nearly every case in this archive turned on something ordinary — an unwitnessed page, a stale beneficiary line, a document nobody could find. Those are cheap to fix while you're alive and expensive to fix afterward.