Florida Residency How you know you have it, and what you may want to do if another state says you don’t

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Maintenance vs. Use – The 2012 Audit Guidelines, citing Matter of Panico (ALJ August 17, 1990), state that a taxpayer would not have the requisite relationship to a dwelling that he owns, but which is used exclusively by others. In Matter of Gaied (TAT June 16, 2011), the Tribunal found that an apartment owned by the taxpayer, but occupied by his parents, was a permanent place of abode for the taxpayer. The Tribunal first found that the apartment was NOT a permanent place of abode of the taxpayer. However, on reargument, the Tribunal withdrew its prior decision, finding that it had incorrectly added an additional element to the definition of permanent place of abode that is not contained in either the statute or regulations—that a dwelling place must have a bedroom or bed to qualify as a permanent place of abode. The Tribunal stated that “where the taxpayer has a property right to the subject premises, it is neither necessary nor appropriate to look beyond the physical aspects of the dwelling place to inquire into the taxpayer’s subjective use of the premises.” In other words, there is no requirement that the taxpayer maintain the premises for his/her own use. Here, the taxpayer had purchased a property in New York that included several rental units and the first floor was occupied by the taxpayer’s parents. The parents relied fully on the taxpayer for financial support and the taxpayer occasionally spent the night in the apartment due to the parents’ medical needs. Additionally, the taxpayer kept keys to the other units inside his parent’s apartment—a fact which led the Tribunal to conclude that it would be “incredible” to believe that the taxpayer did not have unfettered access to the parent’s apartment.

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