Proving 2 out of 5 from my second home since I need to sell it shortly to diminish capital gains tax

Forum|Forum|3 months ago
April 17, 2026
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How can I prove that I lived in my second home for more than 2 out of the 5 years? I file NYS taxes in the past and if I sell my Florida home, one accountant told me that as long as I have as much documentation as possible, namely: Deed on my name, car, registration and insurance registered in Florida, utility bills in my name, house insurance, bank account at the 2nd home address, etc...that I am fine. Problem is, even if it passes the test, how do I treat NYS since I know they use days, namely183 days out of the state. I am kind of confused and don't want to get in a jam, since I am a senior and a 100% service connected vet on VA disability.

Benefit Assist Online

AmyC

Level 15

While the IRS focus is on whether you "used" the home as a primary residence for 24 months, NYS is notorious for its aggressive "Statutory Residency" audits, which look at your global ties and day counts.

Federal: To exclude up to $250,000 (single) or $500,000 (married) in capital gains, you must meet the Ownership and Use tests. Since you already own the home, the "Use" test is where documentation matters. The IRS looks for "Primary Residence" indicators:

Voter Registration: Moving your registration to Florida is a major legal marker.
Mailing Address: Use the Florida address for your IRS filings, VA correspondence, and Social Security.
The "Non-Qualified Use" Rule: Be aware that if you owned the Florida home as a "second home" or rental before moving into it as a primary residence, the IRS may prorate your exclusion. You only get the full exclusion for the period it was your primary home.
If you moved there with intent to stay and had a reason you had to move - like health, there are some exceptions that allow a proration.

NY:As a 100% service-connected veteran, you may also have specific property tax exemptions in Florida that can serve as "intent" evidence for your residency.

New York State will try to tax your Florida gain if they consider you a Statutory Resident. You are a resident of NY if you:
Maintain a "permanent place of abode" (your NY home).
Spend more than 183 days in NY during the tax year.
Cell Phone Pings/Records: NY auditors frequently request cell phone records to track which towers your phone hit on specific days to verify your location.
Credit Card Statements: Showing daily spending (groceries, gas, coffee) in Florida vs. New York.
The "Teddy Bear" Test: NY auditors look at where your "near and dear" items are (family photos, heirlooms, pets, or high-value collections). If these are still in NY, they may argue you never truly left.
The FL homestead veterans exemption is inconsistent with being a NY resident
NY STAR credit or residency based exemptions should not qualify with FL residency