New York to Texas: Proving the Job Really Moved Too

New York’s Department of Taxation and Finance publishes the IRS state-to-state migration data, and the New York to Texas column is smaller than people assume. In the 2022 to 2023 data the department reports, 12,961 individual income tax returns moved from New York to Texas and 9,433 moved the other way, a net outflow of 3,528 returns. Florida takes six times that net, New Jersey nearly five times. Texas is not the volume corridor. It is the corridor people take for a job.

That is the whole problem in one sentence. The Florida movers in the next column over are usually moving a life: a retirement, a second home that became a first home, a family. The Texas movers are disproportionately moving a career, to Dallas, Austin or Houston, and a large share of them are moving a career that is still, on paper, attached to a New York employer.

The Texas half of this corridor is genuinely easy. Texas does not merely decline to tax your income, it is constitutionally barred from doing so. The November 2019 Proposition 4 added Article 8, Section 24-a to the Texas Constitution: "The legislature may not impose a tax on the net incomes of individuals, including an individual’s share of partnership and unincorporated association income." It passed with 74.4 percent of the vote. There is no Texas day-count test, no statutory residency test, and no Texas residency audit, because there is no Texas income tax to audit.

The New York half is where this corridor actually breaks, and it breaks in a place most movers never look. This article is informational and is not legal or tax advice; work through your own facts with a qualified CPA or tax attorney.

Tax Law section 605(b)(1) defines a resident individual two ways. Subparagraph (A) is domicile, subject to a narrow foreign safe harbor. Subparagraph (B) is the statutory residency test, which reaches an individual not domiciled in New York "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." The Tax Department states the practical version plainly: you are a resident if you keep a permanent place of abode for substantially all of the taxable year and spend "184 days or more in New York State," and "any part of a day is a day for this purpose."

Both of those you can eventually escape. Sell or surrender the New York dwelling and the abode prong fails. Stay under 184 days and the day prong fails. Build a clear and convincing domicile record in Texas and subparagraph (A) fails too. Someone moving from New York to Texas who does all three has genuinely stopped being a New York resident.

And New York can still tax most of their salary.

That is because the third mechanism is not a residency rule at all. It is a sourcing rule, it applies to nonresidents by design, and it does not care where you live. It cares where your job is.

The regulation governing how a nonresident employee allocates wages reads, in the portion the Tax Department itself quotes: "If a nonresident employee . . . performs services for his employer both within and without New York State, his income derived from New York State sources includes that proportion of his total compensation for services rendered as an employee which the total number of working days employed within New York State bears to the total number of working days employed both within and without New York State. . . . However, any allowance claimed for days worked outside New York State must be based upon the performance of services which of necessity, as distinguished from convenience, obligate the employee to out-of-state duties in the service of his employer."

That last sentence is the convenience of the employer test. Read it as an allocation rule and the effect is clear: a day you work from your Austin kitchen is only an Austin day if working from Austin was a necessity of your employer, not a preference of yours. If it was your preference, it is a New York working day, and the wages for it are New York source income.

TSB-M-06(5)I, the Tax Department memorandum of May 15, 2006 that still governs this, spells out the default. Where the taxpayer’s assigned or primary office is in New York State, "normal work days spent at home are considered days worked in New York State." The memo also quotes the Form IT-203-B instruction that qualifying out-of-state duties "are those which, by their very nature, cannot be performed at the employer’s place of business."

By their very nature. That is a demanding standard, and it is the reason the convenience rule catches so many remote workers who assumed a Texas address settled the question.

TSB-M-06(5)I does give an escape route, and it is worth knowing precisely because so few people meet it by accident. For tax years beginning on or after January 1, 2006, a normal work day spent at a home office outside New York is treated as a day worked outside the state if that home office is a bona fide employer office. The memo says an office qualifies if it meets either the primary factor, or at least 4 of the 6 secondary factors and 3 of the 10 other factors.

The primary factor is narrow on purpose: "The home office contains or is near specialized facilities." The memo’s own example is an employee whose duties require a test track to test new cars, where no test track exists at the employer’s New York City offices but one is available near the employee’s home. If the specialized equipment could physically be set up at the New York office, the factor is not met. Very few knowledge workers clear this.

So most people are working the secondary list. The six secondary factors are: the home office is a requirement or condition of employment; the employer has a bona fide business purpose for the home office location; the employee performs some of the core duties of employment at the home office; the employee meets with clients, patients or customers on a regular and continuous basis at the home office; the employer does not provide designated office space or other regular work accommodations at one of its regular places of business; and the employer reimburses substantially all home office expenses, which the memo defines as 80 percent or more.

The ten other factors are more clerical and, for that reason, more achievable: a separate employer telephone line and listing for the home office, the home office address and phone number on the employer’s letterhead or business cards, a specific area of the home used exclusively for the employer’s business and separate from the living area, inventory or product samples kept at the home office where the employer sells at wholesale or retail, employer business records stored at the home office, a sign at the home office indicating a place of business of the employer, employer advertising showing the home office as one of its places of business, business insurance coverage or a business rider on the homeowner policy, an actually claimed federal home office deduction, and the employee not being an officer of the company.

Read that list as a document checklist rather than a legal argument and the planning becomes obvious. Four of six and three of ten is a paperwork threshold. A written employment agreement naming the Texas location, an employer with a real business reason to be in Dallas or Austin, no designated New York desk, reimbursed home office costs, an exclusive room, business records on site, and a claimed federal deduction is a combination a cooperative employer can actually produce. None of it can be produced retroactively two years into an audit.

Here is the part specific to this corridor, and it is the reason a New York to Texas move can look like a worse financial outcome than a New York to New Jersey move for the same salary.

When a nonresident pays New York tax on New York source wages, the usual relief is a resident credit from the state where they now live. A New Jersey resident with New York source wages pays New York and then claims a credit against New Jersey tax for the tax paid to New York. The convenience rule still stings, but most of it is absorbed.

Texas has nothing to credit. There is no Texas income tax, so there is no Texas liability for a New York credit to offset. Every dollar of New York tax the convenience rule generates is a dollar of real, unrecovered cost. The same is true for anyone moving from New York to Florida or moving from California to Texas who keeps the employer behind.

This inverts the arithmetic people run before the move. New York’s brackets top out at 10.9 percent at the state level, with New York City residents adding up to 3.876 percent more, and New York taxes capital gains as ordinary income. The projected savings from swapping that for a 0 percent state only exist if the wages actually stop being New York source income. If the assignment did not move, they do not. Running a day count checker tells you about residency. It does not tell you about sourcing, and on this corridor sourcing is usually the larger number.

A great deal of New York to Texas movement happened in and after 2020, and a lot of people carried a reasonable-sounding assumption with them: that when an employer closed its offices, remote work stopped being a convenience and became a necessity. That assumption has now been litigated to a conclusion.

In Matter of Edward A. and Doris Zelinsky, DTA Nos. 830517 and 830681, the New York State Tax Appeals Tribunal decided on May 9, 2025, for tax years 2019 and 2020, that the Division properly allocated all of a Connecticut-resident law professor’s Cardozo wages to New York under 20 NYCRR 132.18(a). The taxpayer spent less than 10 percent of his working days in the state. The Tribunal upheld the administrative law judge and rejected the arguments put to it, including the contention that changes in technology and business practice since the earlier precedent warranted revisiting the rule, the due process and dormant Commerce Clause challenges, and the attempt to distinguish pandemic office closures from the specialized-facilities framework the memorandum actually sets out. On the Commerce Clause point the Tribunal reasoned that the taxpayer availed himself of the state’s economic market through his New York employer, and that uniform application of the rule across states would avoid double taxation.

Hodgson Russ, whose Noonan’s Notes blog has followed both rounds of this case, criticized the reasoning and noted that the real question in the COVID cases is whether the employer required the work, not whether the employee found it convenient. Fair criticism, and it does not change where the law currently sits. Zelinsky has announced plans to appeal further.

The operating conclusion for anyone on this corridor: an employer office closure, by itself, is not an answer to the convenience rule. A documented bona fide employer office is.

The best illustration on this exact corridor is a case New York lost. Matter of Gregory Blatt, DTA No. 826504, decided by an administrative law judge on February 2, 2017, canceled a notice of deficiency of $430,065.00 for 2009 and 2010 and found a change of domicile from New York City to Dallas.

Blatt was general counsel of IAC when he became CEO of Match, which was headquartered in Dallas. The determination is unusually explicit about the structure of the move because the structure changed midstream, and the change is the lesson. Under the original Term Sheet, executed roughly eight months earlier, he kept his IAC titles, negotiated to work principally from IAC’s New York office, retained his New York apartment, and committed to spend only between one-third and one-half of his time in Dallas. On those facts, the job had not moved.

Then it did. An Amended and Restated Employment Agreement effective November 6, 2009 left him a single title, CEO of Match, and, in the determination’s words, "listed petitioner’s principal place of employment as Match’s offices in Dallas, Texas. This, too, was a significant change from the Term Sheet, which specified that petitioner was based in New York, New York." He relinquished his IAC corporate titles and the roughly $600,000 of bonus tied to them, stopped completing New York continuing legal education, did not renew his New York State Bar membership, and listed the New York apartment for sale. The judge described this as eliminating "the pillars of the safety net that he had so carefully constructed only months before." Three colleagues, including Barry Diller, submitted affidavits confirming he was based in Dallas.

The personal record was built alongside it: a Dallas lease in March 2009, a Texas-leased car, a Dallas gym and Dallas doctors in April 2009, over $10,000 spent furnishing the Dallas home between March and June, a Texas driver’s license in April 2010 and Texas voter registration in May 2010, voting there that November. And in November 2009 he moved his dog, a large senior dog whose relocation he had been putting off, having written to a friend that October: "Dog is the final step." The judge held that "petitioner’s dog was his near and dear item which reflected his ultimate change in domicile to Dallas," and fixed the change of domicile at November 2009.

Two cautions on reading this case. First, Blatt was a domicile case, not a convenience rule case; the determination also records that he was not within New York State or City for more than 183 days in either year, and the judge expressly declined to adopt the parties’ detailed day counts. Second, the Hamptons boat and the New York apartment he kept during part of the period did not sink him, but that was a finding on his particular pattern of use, not a general rule that retained property is safe.

What transfers to the convenience rule is the shape of the evidence. The document that mattered most was an employment agreement naming Texas as the principal place of employment, executed before the tax years in dispute closed, backed by economic consequences he actually accepted. That is the same document a bona fide employer office analysis wants to see, for the same reason.

Per our Texas residency guide, establishing Texas is a four-item checklist. A Texas driver’s license within 90 days of establishing residency, with an out-of-state license valid to drive during that window under Transportation Code section 521.029. Vehicle registration within 30 days. Voter registration at least 30 days before the election you want to vote in. And the residence homestead exemption, filed with the county appraisal district by April 30 of the tax year. Texas has no Declaration of Domicile filing of the kind Florida offers, so intent is built from the combination of those four records rather than one recorded document.

The homestead exemption carries more weight than its dollar value suggests. A chief appraiser is barred from granting it unless the address on the applicant’s driver’s license or state ID matches the homestead property. That forced match is a useful piece of evidence in a New York audit, because it is a third party requiring your documents to agree with each other.

The one genuine Texas trap runs the other direction, for people who later leave. A Texas homestead exemption kept on a property that is no longer your principal residence is cancelable once discovered under Tax Code section 11.43(h), and an exemption erroneously allowed in any of the five preceding years is added back to the appraisal roll as escaped property under section 11.43(i). Appraisal districts cross-check homestead rolls against driver’s license and voter registration addresses, and against other states’ principal-residence exemption data to catch dual claims. Texas Tax Code sections 11.13 and 11.43 are explicit that a person may hold only one homestead exemption at a time, in Texas or any other state. That is worth knowing on day one, because a stale Texas homestead is the kind of contradiction a future auditor in a third state will find.

Per our New York residency guide, New York rates a 5 out of 5 on both audit aggressiveness and exit stickiness, and practitioners consistently name it alongside California as the most aggressive exit-audit state in the country. The standard triggers are the ones this corridor produces: a high earner whose New York income drops sharply in the year of a claimed move, day counts near the line, and a New York home that stayed.

The evidence the state pulls is not limited to what you hand over. Published enforcement methods include cell phone location records, EZ-Pass and toll records, credit and debit card statements, medical, dental and veterinary records, airline and travel booking records, the STAR exemption cross-check against nonresident filing status, utility and cable bills, club, gym and religious institution membership records, and neighbor and informant tips. Hodgson Russ describes the process as document-intensive and commonly 12 to 24 months from first contact to resolution, and New York practitioners describe a contested case as running well into five figures in professional fees.

The clock is longer than people expect. Under Tax Law section 683, the general assessment period is three years from filing, it extends to six years where an individual omits from New York adjusted gross income an amount in excess of 25 percent of the amount stated on the return, and there is no limit at all where no return was filed or a false or fraudulent return was filed with intent to evade tax. A nonresident who simply stops filing a New York return after moving to Texas, rather than filing Form IT-203 and allocating, has not started a clock running.

And on domicile the burden is yours. The Tax Department’s guidance is direct: "your New York domicile does not change until you can demonstrate with clear and convincing evidence that you have abandoned your New York domicile." It adds that "it is not enough simply to file a certificate of domicile or register to vote in the new location."

Settle the employment question first, in writing, and settle it before the year closes. Get the assigned or primary work location changed in an executed employment agreement or a written employer policy, not in an email thread. Walk the bona fide employer office factors with your employer and decide deliberately which ones you can meet, aiming at the primary factor if the work genuinely allows it and at four of six plus three of ten if it does not. If the employer will not put the Texas location in writing, treat the convenience rule as applying and model your savings accordingly, because that is the position New York will take.

Deal with the New York dwelling on a calendar, not on sentiment. The abode prong is the one prong of statutory residency you fully control, and the disposal or lease-termination date is a tax decision as much as a real estate one.

Count days from January 1 on an any-part-of-a-day basis, and know that 184 is the failing number in New York. Anyone commuting back to Dallas from a New York office, or back to a New York office from Dallas, accumulates New York days quickly without feeling like a New Yorker.

File Form IT-203 for the move year. Remove the STAR exemption the week the move is real. Build the Texas record in the first 90 days while the deadlines are running anyway. And expect deferred compensation and stock options tied to services performed while you were a New York resident or working in New York to remain New York source income after you leave, because they do.

The Mobility Map records days and nights by state as they happen. On this corridor the relevant count is New York days on an any-part-of-a-day basis across the full calendar year, with 184 as the line, and it is far cheaper to keep contemporaneously than to reconstruct against a state that will pull your toll records and flight bookings and compare them to whatever you produce.

Evidence Vault holds what this corridor’s audit actually asks for: the executed employment agreement or written employer policy naming the Texas work location, any employer documentation supporting the bona fide employer office factors, the closing or lease-termination documents for the New York dwelling with their dates, the STAR removal, the Texas driver’s license, vehicle registration and voter registration, the county homestead exemption approval, and the Form IT-203 for the move year.

AuditIQ surfaces the contradictions this corridor produces most often: a New York employer with no documented employer-necessity basis for remote work, a New York abode still maintained past the substantially-all-the-year line, a New York day count approaching 184, an active STAR exemption after the claimed move, and a Texas homestead exemption whose address does not match the driver’s license on file.

ResidencyIQ organizes records and highlights potential exposure factors. It is not a law firm or an accounting firm and does not provide legal or tax advice; work with a qualified CPA or tax attorney on your own domicile, filings, and state exposure.

The two-part definition of a resident individual, with domicile in subparagraph (A) and the statutory residency test in subparagraph (B) reaching 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," is in N.Y. Tax Law section 605(b)(1): https://www.nysenate.gov/legislation/laws/TAX/605.

The Tax Department’s statement of the test as a permanent place of abode maintained for substantially all of the taxable year plus "184 days or more in New York State," the rule that "any part of a day is a day for this purpose" and that you need not be present at the abode for the day to count, the clear and convincing evidence standard for abandoning a New York domicile, and the caution that "it is not enough simply to file a certificate of domicile or register to vote in the new location," are on the department’s nonresident and part-year resident guidance: https://www.tax.ny.gov/pit/file/nonresident-faqs.htm.

The text of 20 NYCRR 132.18(a) quoted here, including the working-day allocation fraction and the requirement that any allowance for days worked outside New York rest on services which "of necessity, as distinguished from convenience, obligate the employee to out-of-state duties," the Form IT-203-B instruction that such duties "by their very nature, cannot be performed at the employer’s place of business," the default that normal work days spent at home are New York work days where the assigned or primary office is in New York, the bona fide employer office standard of either the primary factor or at least 4 of 6 secondary factors and 3 of 10 other factors, and the full text of the primary, secondary and other factors, are in TSB-M-06(5)I, Income Tax, dated May 15, 2006: https://tax.ny.gov/pdf/memos/income/m06_5i.pdf.

Matter of Edward A. and Doris Zelinsky, DTA Nos. 830517 and 830681, decided by the New York State Tax Appeals Tribunal on May 9, 2025 for tax years 2019 and 2020, upholding the allocation of all of the taxpayer’s New York employer wages to New York under 20 NYCRR 132.18(a) despite fewer than 10 percent of working days in the state, and rejecting the due process and dormant Commerce Clause challenges, is summarized at https://www.currentfederaltaxdevelopments.com/blog/2025/5/22/navigating-new-yorks-convenience-rule-insights-from-matter-of-zelinsky-2025. Hodgson Russ’s criticism of the Tribunal’s reasoning on employer-mandated pandemic remote work, and the note that a further appeal is planned, are at https://www.hodgsonruss.com/Noonans-Notes-Blog/strike-two-in-zelinsky-ii-tax-appeals-tribunal-upholds-the-convenience-rule-again. The determination itself is at https://www.dta.ny.gov/pdf/determinations/830517.det.pdf.

Matter of Gregory Blatt, DTA No. 826504 (Determination, Feb. 2, 2017) is the source of the $430,065.00 notice of deficiency dated June 4, 2013 and its cancellation, the finding that petitioner was not within New York State or City for more than 183 days in either year, the Term Sheet that based him in New York against the Amended and Restated Employment Agreement effective November 6, 2009 that "listed petitioner’s principal place of employment as Match’s offices in Dallas, Texas," the relinquished IAC titles and roughly $600,000 bonus reduction, the lapsed continuing legal education and New York State Bar membership, the affidavits from Barry Diller, Mandy Ginsberg and Gregg Winiarski, the March 2009 Dallas lease, Texas-leased car, April 2009 Dallas gym and doctors, over $10,000 of furnishings, the April 2010 Texas driver’s license and May 2010 voter registration, the October 2009 "Dog is the final step" email, the holding that the dog "was his near and dear item which reflected his ultimate change in domicile to Dallas," and the conclusion that domicile changed to Dallas in November 2009: https://www.dta.ny.gov/pdf/determinations/826504.det.pdf.

The Texas constitutional ban on an individual income tax, added as Article 8, Section 24-a by Proposition 4 in November 2019 and reading "The legislature may not impose a tax on the net incomes of individuals, including an individual’s share of partnership and unincorporated association income," together with the 74.4 percent approval margin, is documented at https://ballotpedia.org/Texas_Proposition_4,_Prohibit_State_Income_Tax_on_Individuals_Amendment_(2019).

The 12,961 returns moving from New York to Texas against 9,433 moving the other way for a net outflow of 3,528, and the comparative net outflows to Florida, New Jersey, North Carolina, Pennsylvania and Connecticut, are from the Department of Taxation and Finance’s migration page reporting IRS state-to-state data for 2022 to 2023: https://www.tax.ny.gov/data/stats/taxfacts/migration.htm.

The three-year general assessment period, the six-year period where an individual omits from New York adjusted gross income an amount in excess of 25 percent of the amount stated on the return, and assessment at any time where no return is filed or a false or fraudulent return is filed with intent to evade tax, are in N.Y. Tax Law section 683, at subdivisions (a), (d) and (c)(1): https://www.nysenate.gov/legislation/laws/TAX/683.

The New York audit aggressiveness and exit stickiness ratings, the enforcement method list including cell phone location records, EZ-Pass and toll records, card statements, medical, dental and veterinary records, airline records, the STAR cross-check, utility and cable bills, membership records and informant tips, the 12 to 24 month audit duration and five-figure defense cost description drawn from Hodgson Russ’s published nonresident audit guidance, the 10.9 percent state top rate and 3.876 percent New York City top rate with capital gains taxed as ordinary income, the Form IT-203 apportionment mechanics, and the treatment of deferred compensation and stock options as continuing New York-source income, are from our New York residency guide, which cites https://www.hodgsonruss.com/assets/htmldocuments/1_2_1/Alerts/2012/Residency%20Audit%20Handbook%202012_030612.pdf, https://www.tax.ny.gov/forms/html-instructions/2024/it/it203i-2024.htm and https://www.tax.ny.gov/enforcement/audit/pub-130-d.htm.

The Texas 90-day driver’s license window under Transportation Code section 521.029, the 30-day vehicle registration deadline, the 30-day voter registration deadline, the April 30 residence homestead exemption filing deadline and the requirement that the driver’s license or state ID address match the homestead property, the absence of a Texas Declaration of Domicile, the cancellation of an improper homestead exemption under Tax Code section 11.43(h) with back assessment of any of the five preceding years as escaped property under section 11.43(i), the appraisal district cross-checks against license, voter and other states’ principal-residence exemption data, and the one-homestead-at-a-time rule in Tax Code sections 11.13 and 11.43, are from our Texas residency guide, which cites https://comptroller.texas.gov/taxes/property-tax/exemptions/, https://www.votetexas.gov/register-to-vote/index.html, https://codes.findlaw.com/tx/transportation-code/transp-sect-521-029/ and https://www.txdmv.gov/sites/default/files/body-files/ChecklistForNewTexans.pdf.