Discussion:Military officer still NY resident?

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Discussion Forum Index --> Advanced Tax Questions --> Military officer still NY resident?


Discussion Forum Index --> Tax Questions --> Military officer still NY resident?

Biasinik (talk|edits) said:

25 March 2009
Client is an officer stationed in Fl since Oct 2005. Divorce was final during 2008 and client is ordered by the court to pay for the mortgage until May 2009. Client was removed from deed in 6/08 and ex owns property 100%. Not sure if client is still on the hook for the mortgage or if they were able to refi. Ex wife took mortgage interest deduction for 2008 and other assoc expenses. Client satisfies the requirements according to Pub 361 for not being a NY resident. My question is this - should I file as a part year resident through the time the house was transferred into ex-wife's name (6/08) or if he did not "maintain" the residence the entire year (even though he owned it for 6 months) does he qualify to get all NY withholding back? Client was under the impression that he had to pay NY tax on income until he changed residency through the military and thought he could not do that until he was no longer paying the mortgage payment. I'd appreciate any assistance! Thanks, Kathleen

Biasinik (talk|edits) said:

25 March 2009
I wanted to bring this to the top of the list. Any thoughts? Please??

Taxesido (talk|edits) said:

26 March 2009
California treats residents as non residents if they leave the state under permanent military orders. And non residents stationed in Calif. as non residents unless they adopt California domicile. Sorry I don't know much about other states. Check with the states Franchise Tax Board.

IDrinkYour Milkshake (talk|edits) said:

26 March 2009
An active duty military member's state of residence is the state from which they joined. They can change this while still in by filing the appropriate paperwork with the military admin section.

IDrinkYour Milkshake (talk|edits) said:

26 March 2009
Taxesido is wrong. CA treats military members stationed outside of CA (but still in US)as residents if they joined from CA. I know, I was a Marine once...

Taxesido (talk|edits) said:

26 March 2009
According to CCH California Guidebook

Military personnel are subject to special treatment with respect to residency. Under Legal Ruling No. 300, issued by the Franchise Tax Board in 1965, Califronia military personnel are treated as nonresidents when they leave the state under permanent military orders to serve at out-of-state posts of duty.

Biasinik (talk|edits) said:

26 March 2009
I spoke with NY and they agreed that my client was not a resident of NY and in fact had no reason to file a NY return as of the date of his transfer of the marital home to his ex wife. The pmt of the mortgage is not maintaining the home. But they could not point me to any documentation. I know my client did not file anything with the military but NY said that was OK. So does it make sense to file as a part year resident until the house was out of his name? I think that's conservative. Am I doing my client a disservice if he truly did not maintain the home at all in 2008? Should I find out if there was a separation agreement, maybe, with more detail about when the home was given to the wife? I guess it may have happened in a prior year depending on how long they were separated... I don't know if NY has a formal separation but does that matter?

Taxesido (talk|edits) said:

26 March 2009
I looked in pub 361 for New York State military personal and it states. If you did not maintain a place of abode in New York and you maintained a place of abode in another state and you did not spend more than (I beleve it said 30 days but double check that) in New York than you do not need to file a New York return. I am not sure maybe someone else has an opinion, but I believe an abode is a home you live in. Not just pay the mortgage on.

Biasinik (talk|edits) said:

27 March 2009
Thanks! Yes, this is exactly what I discussed with NY when I called. My client qualifies for those 3 items in group A of pub 361. But I did not get into the timing of when he was divorced, when the house was transferred out of his name, etc. So you don't think all that matters though?

Taxesido (talk|edits) said:

27 March 2009
California is a community property state, New York is not so I am not up on New York. In California when a couple is separated with no intention of resuming the relationship than their earnings are separate property. So in California I would say no problem.

RoyDaleOne (talk|edits) said:

27 March 2009
So you don't think all that matters though? <----- I agree at least for 2006, 2007, 2008 per the facts as stated. Stationed in Florida Oct. 2005, does not need to file NY tax return and should be entitled to a refund of taxes paid to New York for those periods.

Biasinik (talk|edits) said:

27 March 2009
Thank you both so much for your thoughts. My client should be very happy!

IDrinkYour Milkshake (talk|edits) said:

29 March 2009
A ruling in 1965... I can assure you members who are CA residents when they join maintain their residency, even under PSC orders to other states.

Jdanielle (talk|edits) said:

29 March 2009
Read NYS Pub 361 -

You ae correct as long as he maintains a home in Florida and doesn't live on base. Base housing is considered temporary residence and doesn't change your abode.

Taxesido (talk|edits) said:

29 March 2009
Milkshake,

Not to beat a dead horse but, take a look at California Publication 1032 page 3 under heading C which states.

An individual domiciled in California when entering the military is considered to be a:

Resident while stationed in California.

Resident while stationed in California on permanent change of station (PCS) orders and temporary duty (TDY) assignments outside California.

Nonresident while stationed outside California on PCS orders.

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