Ohio's New Residency Requirements for Individual Income Tax Purposes
On December 14, 2006, the Ohio General Assembly passed Sub. H.B. 73, which changed Ohio's residency requirements for Ohio income tax purposes (the so-called "snowbird" rules). Outgoing Ohio Governor Bob Taft signed the bill into law on January 2, 2007. It is effective for tax years after 2006. The Ohio Department of Taxation recently published the "Affidavit of Non-Ohio Domicile for Taxable Year 2007" form.
Why Does Residency Status Matter?
An Ohio resident must pay Ohio income tax on his or her worldwide income, subject to credits for taxes paid in other jurisdictions. A nonresident, however, only pays Ohio income tax on income earned or received in Ohio.
Who Is a Resident?
Under Ohio law, an individual is a "resident" for Ohio income tax purposes if he or she is "domiciled" in Ohio. Whether an individual is domiciled in Ohio depends upon the number of "contact periods" the individual has in Ohio during the taxable year (for most people, the calendar year). A contact period occurs when an individual is away from his or her out-of-state "abode" and spends a portion of two consecutive days in Ohio. ("Abode" typically means a place where one lives.) In most circumstances, this will be the number of nights spent in Ohio.
Under the old Ohio residency rules, an individual who had 120 or fewer contact periods during a taxable year and at least one abode outside Ohio during the entire taxable year was presumed not to be domiciled in Ohio for that taxable year. This presumption was irrebuttable (meaning it could not be challenged), unless the taxpayer received a request from the Ohio Tax Commissioner ("Commissioner") for a statement verifying facts concerning the individual's domicile, and the individual failed to submit the statement within 60 days of receipt. Failure to submit the requested statement resulted in a presumption that the individual was domiciled in Ohio for the entire taxable year. This presumption was rebuttable (or challengeable) by the individual upon presentation of sufficient evidence.
Moreover, Ohio domicile was presumed to exist for an individual with more than 121 contact periods with Ohio during the taxable year. The individual could rebut the presumption with sufficient evidence, but the burden of proof was much higher if the individual had more than 182 contact periods with Ohio during the taxable year.
Certain contact periods were exempt from these determinations. For instance, a contact period did not count for 2006 if the individual spent any portion of a contact period: (i) providing services or raising funds for a not-for-profit organization, (ii) attending to his or her own, or an immediate or extended family member's, medical hardship, or (iii) attending an immediate or extended family member's funeral.
Also, under prior law, an individual could elect nonresident status by filing a written statement with the Commissioner during the taxable year immediately preceding the taxable year to which the election applied. For instance, an individual who made this election in 2005 would have been considered a nonresident for all of taxable year 2006.
The new law increases the number of contact periods an individual can have with Ohio and still be presumed not to be domiciled in Ohio for income tax purposes from 120 to 182. Ohio domicile is presumed for individuals with more than 182 contact periods (and like the old law, this presumption can be rebutted by the individual, but the burden of proof is high).
The new law brings several other significant changes. It requires an individual wishing to take advantage of the non-Ohio domicile presumption for tax year 2007 to file Ohio Tax Form IT DA-NM (the "Form"), verifying that the individual is not domiciled in Ohio and specifying the location of each non-Ohio abode (in contrast, under the old law, such a statement was required only if requested by the Commissioner). The Form needs to be filed by May 30, 2008. Failure to file, or filing a false Form, will result in a presumption that the individual was domiciled in Ohio during tax year 2007. The individual would then need to rebut this presumption by presenting sufficient evidence to the contrary.
As was the case under the old law, only certain types of evidence regarding domicile will be considered by the Commissioner. For instance, the Commissioner will not consider: the location of financial institutions in which the individual has accounts, the location of professional services (accounting, legal, health care) utilized by the individual, the location or place of formation of a business entity with which the individual is associated, the place of residency or domicile listed in the individual's estate planning documents, and the location of not-for-profit organizations to which the individual makes contributions. On the other hand, the Commissioner will consider evidence of: the forwarding of mail from an Ohio address to a non-Ohio address by the individual, the use of club facilities outside of Ohio by the individual, utility shut-off notices related to the individual's Ohio residence, and the individual's out-of-state voting records.
Another important change is that the new law no longer includes the so-called "charitable," "medical hardship," or "funeral" exemptions from contact periods. Thus, individuals must now take into account all time spent in Ohio for purposes of computing contact periods. Lastly, under the new law, individuals can no longer affirmatively elect nonresident status in the current year for application in the subsequent year.
Residency for Ohio Estate Tax Purposes
The new law only applies for Ohio income tax purposes. For Ohio estate tax purposes, facts and circumstances are analyzed in order to determine where the decedent intended to have his or her domicile. An individual's domicile depends upon a variety of factors, including location(s) of the individual's home(s), location(s) of the individual's valuable possessions and personal property, where the individual votes, where the individual is involved in civic activities, etc.
Under the new law, "snowbirds" can spend more time in Ohio while maintaining a presumption of nonresidency status for Ohio income tax purposes, but they must file the requisite Form with the Commissioner. (Although the Form is valid only for tax year 2007, presumably the Ohio Department of Taxation will publish a similar form for subsequent tax years.) Also, individuals must now take into account time spent in Ohio for charitable or medical reasons, or to attend a funeral. For individuals wishing to establish residency outside Ohio, or wishing to establish nonresidency for estate tax purposes, it is still important to take steps such as forwarding mail, changing Ohio club memberships from resident to nonresident status, and registering to vote outside of Ohio (and to keep good records of these steps), as they will provide evidence of nonresidency if needed.
For further information, please contact your principal Firm representative or one of the lawyers listed below. General e-mail messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com.
Kenneth G. Hochman
Lisa A. Roberts-Mamone
Michael J. Horvitz
Ellen E. Halfon
J. Joseph Korpics
Joseph F. Verciglio
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