IT 2007-08 — Personal Income Tax: Residency Guidelines - Tax
Imposed on Resident and Nonresident Individuals for Post-2006
Taxable Years — Issued December 2007; Revised July 2008
This information release discusses how Ohio personal income
tax is imposed on resident and nonresident individuals for
taxable years beginning after December 31, 2006. This
information release does not apply to taxable years beginning
before January 1, 2007.(1)
Who is subject to the Ohio personal income tax?
Ohio imposes personal income tax on individuals(2)
residing in this state, earning or receiving income in this
state, or earning or receiving certain lottery winnings,
prizes, or awards from the Ohio Lottery Commission. Each such
individual (or married couple who file a joint federal
return) with federal adjusted gross income exceeding the
amounts specified in the instructions for the Ohio individual
income tax return, form IT 1040, must file an Ohio income tax
return. This filing requirement also applies to each
nonresident individual whose federal adjusted gross income
includes any income earned or received in Ohio by a
pass-through entity unless the entity files a composite Ohio
return on behalf of its nonresident owners. The filing
requirement applies even if an individual is allowed a
nonresident or resident credit under Ohio Revised Code
section (“R.C.”) 5747.05(A) or (B), respectively, that
eliminates most or all Ohio individual income tax.
Who is a resident?
R.C. 5747.01(I) defines a “resident” of Ohio for purposes of
the Ohio income tax. A “resident” is an individual who is
domiciled in this state, subject to R.C. 5747.24. A
“nonresident” is an individual that is not a resident. While
the tax law does not specifically define who is domiciled in
this state, there is substantial case law on the
determination of “domicile” for tax and other purposes.
However, Ohio Adm. Code 5703-7-16 does provide some factors
that the Tax Commissioner cannot consider in making a
determination of domicile.(3)
As the case law shows, an individual can have only one
domicile at any given point in time. Most individuals retain
their domicile throughout the taxable year, even if they
spend all or a substantial portion of the year away from that
domicile during the year.(4) For example, an
individual who regularly spends spring and summer in Ohio and
autumn and winter in Florida may be domiciled either in Ohio
or Florida for the entire year, depending on what the
relevant facts demonstrate, and would be away from that
domicile while in the other state. The contact period test of
R.C. 5747.24, discussed below, applies for purposes of
determining whether or not that individual was a resident of
Ohio for the taxable year. That individual has not switched
domiciles back and forth between states during the year and
is not a part-year resident of Ohio, but remains either a
full-year resident or nonresident under the contact period
test of R.C. 5747.24.
In contrast, there are situations where an individual changes
domicile during the taxable year. For example, an individual
domiciled in Ohio may retire and move to another state, or an
individual domiciled in another state may move to Ohio for
employment. R.C. 5747.01(J) provides in pertinent part: “An
individual who is a resident for only part of a taxable year
is a nonresident for the remainder of that taxable year.”
Such an individual is a part-year resident.
Why is residency important?
Ohio imposes income tax on all income of resident individuals
but only imposes tax on the income of nonresident individuals
that is earned or received in Ohio. While residents receive a
credit under R.C. 5747.05(B) for income subjected to tax in
another state, the credit cannot exceed the tax paid to the
other state on that income. In contrast, nonresidents receive
a credit under R.C. 5747.05(A) to eliminate tax on income not
earned or received in Ohio. So, for example, if the income is
from a state that imposes no tax, a resident will get no
credit but a nonresident will. However, if the income is from
Ohio, both the resident and the nonresident will be subject
to Ohio tax.
The contact period test
R.C. 5747.24 contains a contact period test for determining
whether an individual is a resident of Ohio for purposes of
the Ohio personal income tax. The test examines an
individual’s “contact periods” in Ohio during the taxable
year to arrive at a presumption of whether or not that
individual is an Ohio resident for that taxable year. Since
the test is based on contact periods (not days) during the
entire year to arrive at a presumption for that entire year,
it does not apply to part-year residents as previously
noted. An individual has a contact period with the
state when the individual is away overnight from the
individual’s abode located outside this state(5) and
while away overnight from that abode spends at least some
portion, however minimal, of two consecutive days in this
state. [R.C. 5747.24(A)(1)(a)].
For example, an individual spending any portion of two
consecutive days in Ohio (e.g., portions of Monday and
Tuesday) has one contact period in Ohio, but an individual
spending any portion of each of two nonconsecutive days in
Ohio, (e.g., Monday and Wednesday, but not Tuesday) has
no contact period in Ohio for those two days.
The presumptions under the contact period test depend on the
number of contact periods in Ohio during the taxable year. If
the Tax Commissioner challenges number of contact periods an
individual claims to have in Ohio during the taxable year,
the individual must verify the number claimed by a
preponderance of the evidence. The individual is presumed to
have a contact period for any period the individual does not
prove was not a contact period. R.C. 5747.24(E).
Individuals presumed not to be domiciled in Ohio(6)
An individual is irrebutably presumed not to be domiciled in
Ohio for any portion of the taxable year if the
individual meets all five of the following criteria:
(i) The individual has less than 183 contact periods in
Ohio during the taxable year,
(ii) The individual has at least one abode outside this
state during the entire taxable year (the law does not define
(iii) The individual did not change domicile from or to
Ohio during the taxable year (referred to as a part-year
resident in the instructions to the form IT
(iv) By May 30 of
the immediately succeeding calendar year the individual files
the affidavit of non-Ohio domicile,(7) and
(v) The affidavit does not contain any false
If the individual did not change domicile from or to Ohio
during the taxable year (i.e., the individual was
not a part-year resident of Ohio) and does not meet criteria
(i), (ii), (iv) and (v) above, the individual is presumed to
be a full-year Ohio domiciliary.
Who should file the affidavit?
• Any taxpayer who during the previous taxable year filed an
Ohio income tax return as a resident or part-year resident
and for the current year is claiming to be a
nonresident/nondomiciliary, and, for the current taxable year
has no income sitused to Ohio under Ohio Revised Code
sections 5747.20 - 5747.231.
• Any taxpayer who for the taxable year has no intent to file
an Ohio income tax return and has (i) an abode in Ohio,(ii) a
contact period in Ohio, and/or (iii) nexus with Ohio to the
extent that the tax commissioner would have cause to question
the taxpayer's non-filing.
Individuals presumed to be full-year Ohio
Fewer than 183 contact periods.(8)
An individual who has fewer than 183 contact periods in Ohio
during the taxable year and is not a part-year resident, but
does not meet criteria (ii), (iv), and (v) set forth above,
is presumed to be a full-year Ohio domiciliary. Such an
individual may rebut the presumption of full-year Ohio
domicile by proving by a preponderance of the evidence that
the individual was not domiciled in Ohio for all or part of
At least 183 contact periods.(9) An
individual who has at least 183 contact periods in Ohio
during the taxable year and is not a part-year resident is
presumed to be a full-year Ohio domiciliary. Such an
individual may rebut the presumption of full-year Ohio
domicile by proving by clear and convincing evidence that the
individual was not domiciled in Ohio for all or part of the
If you have any questions concerning this release, you may
e-mail them to us either by going to our Web site at tax.ohio.gov and clicking on "Contact Us” or by
calling us at (800) 282-1780.
OHIO RELAY SERVICES FOR
THE HEARING OR SPEECH IMPAIRED
Phone: (800) 750-0750.
(1) For a discussion of the law applicable to
pre-2007 taxable years see information release # IT 2007-01.
(2) The tax also applies to estates and trusts,
which are not addressed in this information release.
(3) For example, the location of an individual’s
financial accounts, the location at which the taxpayer
receives professional services such as a doctor’s visit, the
location where the individual was married, etc.
(4) In Maple v. Tracy (Sep. 3, 1999), BTA
Nos. 98-T-268 and 98-T-312, unreported, the Board of Tax
Appeals took the opportunity to review the basic legal
concepts of domicile:
“Domicile is generally defined as a legal relationship
between a person and a particular place that contemplates
two factors: (1) residence at least for some period of
time, and (2) the intent to reside in that place
permanently or indefinitely. Hill v. Blumenburg
(1924), 19 Ohio App. 404, 409, citing Pickering v.
Winch (1906), 48 Ore. 500; Columbus v.
Firebaugh (1983), 8 Ohio App.3d 366. Residence,
which denotes the place in which one physically lives for a
period of time, is embodied in the definition of
domicile. The primary distinction between the two is
that while a person can have only one domicile at any given
time, he or she may have more than one residence.
Saalfeld v. Saalfeld (1949), 86 Ohio App.
225. Moreover, once a domicile has been established,
it is presumed to continue until it is shown by a
preponderance of the evidence that it has been abandoned in
favor of a new one. Cleveland v. Surella (1989),
61 Ohio App.3d 302; Saalfeld, supra, 226.”
Domicile has been defined as a place where an individual has
his “true, fixed, permanent home and principal establishment,
and to which, whenever he is absent, he has the intention of
returning.” Sturgeon v. Korte (1878), 34 Ohio
St. 525. As held by the United States Supreme Court in
Williams v. N. Carolina (1944), 325 U.S. 226,
“Domicile implies a nexus between person and place of such
permanence as to control the creation of legal relations and
responsibilities of the utmost significance."
Abandonment of one's domicile is effected only when a person
chooses a new domicile, establishes actual residence in the
place chosen and shows a clear intent that it be the
principal and permanent residence. E. Cleveland v.
Landingham (1994), 97 Ohio App.3d 385.
(5) “An individual is considered to be ‘away
overnight from the individual’s abode located outside this
state’ if the individual is away from the individual’s abode
located outside this state for a continuous period of time,
however minimal, beginning at any time on one day and ending
at any time on the next day.” R.C. 5747.24(A)(1)(b).
There is no definition of “abode” in Ohio Revised Code Title
(6) R.C. 5747.24(B) provides as follows:
(B)(1) Except as provided in division (B)(2) of this section,
an individual who during a taxable year has no more than one
hundred eighty-two contact periods in this state, which need
not be consecutive, and who during the entire taxable year
has at least one abode outside this state, is presumed to be
not domiciled in this state during the taxable year if, on or
before the fifteenth day of the fourth month following the
close of the taxable year, the individual files with the tax
commissioner, on the form prescribed by the commissioner, a
statement from the individual verifying that the individual
was not domiciled in this state under this division during
the taxable year. In the statement, the individual shall
verify both of the following:
(a) During the entire taxable year, the individual was not
domiciled in this state;
(b) During the entire taxable year, the individual had at
least one abode outside this state. The individual shall
specify in the statement the location of each such abode
outside this state.
The presumption that the individual was not domiciled in this
state is irrebuttable unless the individual fails to timely
file the statement as required or makes a false statement. If
the individual fails to file the statement as required or
makes a false statement, the individual is presumed under
division (C) of this section to have been domiciled in this
state the entire taxable year.
In the case of an individual who dies before the statement
would otherwise be due, the personal representative of the
estate of the deceased individual may comply with this
division by making to the best of the representative’s
knowledge and belief the statement under division (B)(1) of
this section with respect to the deceased individual, and
filing the statement with the commissioner within the later
of the date the statement would otherwise be due or sixty
days after the date of the individual’s death.
An individual or personal representative of an estate who
knowingly makes a false statement under division (B)(1) of
this section is guilty of perjury under section 2921.11 of
the Revised Code.
(2) Division (B) of this section does not apply to an
individual changing domicile from or to this state during the
taxable year. Such an individual is domiciled in this state
for that portion of the taxable year before or after the
change, as applicable.
(7) See form ITDA - NM (affidavit for nonmilitary),
which is available on the department’s Web site. Note that
under R.C. 5747.24(B)(1) the affidavit is due on April 15.
The second paragraph of R. C. 5703.35 authorizes the Tax
Commissioner to extend for up to forty-five days, the due
date for any report required by law to be filed with the
Commissioner. Based upon this provision, the Commissioner has
extended until May 30 the due date for filing the yearly
affidavit, form ITDA-M or ITDA-NM.
(8) R.C. 5747.24(C) provides as follows:
(C) An individual who during a taxable year has fewer than
one hundred eighty-three contact periods in this state, which
need not be consecutive, and who is not irrebuttably presumed
under division (B) of this section to be not domiciled in
this state with respect to that taxable year, is presumed to
be domiciled in this state for the entire taxable year,
except as provided in division (B)(2) of this section. An
individual can rebut this presumption for any portion of the
taxable year only with a preponderance of the evidence to the
contrary. An individual who rebuts the presumption under this
division for any portion of the taxable year is presumed to
be domiciled in this state for the remainder of the taxable
year for which the individual does not provide a
preponderance of the evidence to the contrary.
(9) R.C. 5747.24(D) provides as follows:
(D) An individual who during a taxable year has at least one
hundred eighty-three contact periods in this state, which
need not be consecutive, is presumed to be domiciled in this
state for the entire taxable year, except as provided in
division (B)(2) of this section. An individual can rebut this
presumption for any portion of the taxable year only with
clear and convincing evidence to the contrary. An individual
who rebuts the presumption under this division for any
portion of the taxable year is presumed to be domiciled in
this state for the remainder of the taxable year for which
the individual does not provide clear and convincing evidence
to the contrary.