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Note: This is the seventh in a series of articles that will cover strategies for changing residency, surviving an audit, and challenging a negative result. For a discussion of domicile and statutory residency, see Parts II through IV. For the Bureau of Conciliation and Mediation Services and the conciliation conference, see Part VI.

In Part VI, we walked through the Conciliation Conference administered by the Bureau of Conciliation and Mediation Services (BCMS). That process is informal, relatively fast, and often the best first move. But not every residency dispute settles at conciliation. If you received a Conciliation Order and you are not satisfied with the result, or if you chose to bypass conciliation altogether, your next step is a formal hearing before the New York State Division of Tax Appeals. This is where a residency case becomes a trial.

This article explains what happens after conciliation: the timing, the procedure, how the hearing works, the burden of proof you carry as the taxpayer, and the rules of evidence and post-hearing briefing that shape the outcome.

From Conciliation to the Division of Tax Appeals

The Division of Tax Appeals is the unit within the Department of Taxation and Finance that hears cases in a trial format. It is not involved in assessing or collecting tax. Its only job is to provide an impartial forum to resolve disputes with the Department of Tax. Your case is heard by an Administrative Law Judge (ALJ), a neutral decision maker who reviews the evidence, applies the Tax Law, and issues a written determination with findings of fact and conclusions of law.

This is a meaningful shift from the conciliation conference. A Conciliation Conferee works to broker a resolution. An Administrative Law Judge decides who wins. The atmosphere is more formal, the record is built on evidence, and the determination can be appealed only to the Tax Appeals Tribunal.

Timing: The 90-Day Clock and What Comes After

As with every stage of a New York tax dispute, deadlines are jurisdictional. Missing one is usually fatal.

If you are moving from a Conciliation Order to a formal hearing, you have 90 days from the date the Conciliation Order is issued to file a petition with the Division of Tax Appeals. If the conciliation process is bypassed, you have 90 days from the date of the Notice of Deficiency or Notice of Determination to file your petition directly. If no petition is filed within that window, the Conciliation Order or the underlying assessment becomes final, and you lose your right to a hearing.

After the petition is filed, the general timeline looks like this:

• The Division of Taxation files an Answer, generally within 75 days after your petition is served;
• The case is assigned to an Administrative Law Judge;
• A hearing is scheduled and a hearing notice is issued;
• Each side files a required hearing memorandum before the hearing date;
• The hearing is held, usually in Albany or New York City;
• The parties submit post-hearing briefs on a schedule set by the ALJ; and
• The Administrative Law Judge issues a determination within six months after the hearing concludes or briefs are submitted, whichever is later. That period can be extended for good cause by up to three additional months.

From petition to determination, a residency case can take one to two years or more. Plan for a marathon, not a sprint.

The Procedure: How a Residency Case Moves Forward

A residency case at the Division of Tax Appeals follows a structured litigation path.

The petition. Every proceeding begins with a petition. The petition states who you are, the notice you are protesting, the tax years at issue, and the reasons you believe the assessment is wrong. It is the document that frames the entire dispute, so it should be drafted with care.

The answer. The Division of Taxation responds with an Answer that admits or denies your allegations and sets out its position. Pleadings are construed liberally so that the case is decided on the merits rather than on technicalities, and either side can move to amend as the issues sharpen.

Pre-hearing exchange. Before the hearing, each party prepares a hearing memorandum that identifies the issues, the witnesses, the exhibits, and the legal authorities each side intends to rely on. This memorandum is typically due at least 10 days before the hearing. It matters: if you fail to disclose a witness or an exhibit in good faith, the Administrative Law Judge can preclude that testimony or evidence at the hearing.

Stipulations and documentary submissions. The parties often stipulate to facts and exhibits to streamline the hearing. In some cases, where both sides agree, the matter can be submitted on documents alone without live testimony.

How the Hearing Works

The hearing is a formal, on-the-record proceeding. Unlike the conciliation conference, there is a stenographic record, witnesses testify under oath, and the presentation follows the structure of a trial.

The room typically includes:

• The Administrative Law Judge, who presides over the hearing, rules on objections, and controls the proceeding;
• Counsel for the Division of Taxation, who defends the assessment; 
• The auditor, as the key witness for the Department of Taxation; and
• The taxpayer and the taxpayer’s representative.

The Department of Taxation and the taxpayer each present their case through documents and witness testimony. Witnesses are sworn, and each side may cross-examine the other side’s witnesses. In a residency case, testimony often comes from the taxpayer, family members, or advisors who can speak to where the taxpayer actually lived, worked, and built a life. The Administrative Law Judge may ask questions of any witness to clarify the facts.

The hearing is the taxpayer’s opportunity to tell the story of the move: the sale or lease of the old home, the purchase of the new one, the relocation of family and personal belongings, business connections, the change of doctors and community ties, the day count, and everything else that shows a genuine change of residency.

The Burden of Proof in a Residency Case

This is the heart of a residency dispute, and, for the most part, it rests heavily on the taxpayer. In New York, the taxpayer generally carries the burden of proving that the assessment is wrong. In a residency case, that burden takes two different forms depending on the theory the Department is pressing.

Domicile. If the issue is whether you changed your domicile away from New York, you must prove that change by clear and convincing evidence. This is a demanding standard, higher than the ordinary more likely than not test used in most civil matters. New York presumes that a domicile, once established, continues until a new one is clearly shown. Vague intentions and part-time presence in Florida are not enough. You must show, through concrete and verifiable facts, that you abandoned New York as your permanent home and established a new permanent home elsewhere.

Statutory residency. If the issue is statutory residency, the analysis turns on whether you maintained a permanent place of abode in New York and spent more than 183 days in the state during the year. Here, records are everything. The taxpayer is expected to keep and produce credible documentation of time spent inside and outside New York. Without reliable records, days in question tend to be counted against the taxpayer.

In both situations, the practical lesson is the same: the outcome is driven by documentation. Success depends on a comprehensive, verifiable factual record assembled long before the hearing.

Rules of Evidence and Procedure

The Division of Tax Appeals is designed to provide due process while avoiding undue formality and complexity. It is more rigorous than a conciliation conference but more flexible than a courtroom.

Evidence. The strict rules of evidence that apply in civil trials are relaxed somewhat in the Division of Tax Appeals. The Administrative Law Judge has authority to regulate the course of the hearing and to receive evidence with an eye toward developing a full record. Evidence is generally admitted when it is relevant and reliable, and the pleadings can be amended to conform to the proof where justice requires. That said, foundational discipline still matters. Documents should be authenticated, testimony should be credible, and hearsay carries less weight than direct evidence.

Objections and rulings. Counsel may object to testimony or exhibits, and the Administrative Law Judge rules on those objections during the hearing. Objections to stipulated matters are noted in the stipulation or raised at the start of the hearing.

The record. Because the hearing is transcribed and the exhibits are formally admitted, the hearing creates the record on which the determination rests. If the case is later appealed, the reviewing body looks to that record. This is why what you put in, and what you leave out, at the hearing is so important. The facts on the record do not change if, and when, you appeal.

Post-Hearing Briefs

The hearing is not the end of the presentation. After the hearing closes, the Administrative Law Judge sets a briefing schedule, and each side submits a post-hearing brief.

The post-hearing brief is where the lawyers connect the evidence to the law. It walks the Administrative Law Judge through the facts established at the hearing, applies the domicile or statutory residency standard to those facts, and argues why the assessment should be canceled or reduced. The parties may also submit proposed findings of fact and proposed conclusions of law, which give the ALJ a roadmap for the determination.

A strong post-hearing brief can be decisive. The hearing builds the record, and the brief tells the Administrative Law Judge what that record means and why you should win.

After the Determination

Within six months after the briefs are filed, the Administrative Law Judge issues a written determination with findings of fact and conclusions of law. If either party disagrees, that party may file an exception with the New York State Tax Appeals Tribunal within 30 days after the determination is issued. The Tribunal, a panel of commissioners, reviews the determination and can affirm, reverse, or modify it. A taxpayer who remains dissatisfied after the Tribunal’s decision may seek judicial review in the Appellate Division.

There is also a small claims option for smaller disputes, heard by a presiding officer in a more streamlined proceeding. A small claims determination is faster, but it is generally final and cannot be appealed, so it is a choice to make carefully with your representative.

Key Takeaways

• A formal hearing before the Division of Tax Appeals is the next step when a conciliation conference does not resolve your residency dispute, or when you choose to skip conciliation.
• The petition deadline is jurisdictional. You have 90 days from the Conciliation Order, or 90 days from the original notice, to file. Miss it and the assessment becomes final.
• The case is decided by an impartial Administrative Law Judge, not a mediator. It proceeds like a trial, with sworn testimony, exhibits, and a stenographic record.
• The taxpayer generally carries the burden of proof. A change of domicile must be shown by clear and convincing evidence, and statutory residency turns on credible records of your permanent place of abode and your day count.
• The rules of evidence are relaxed but not absent. Documentation, credibility, and a well-built record drive the result.
• Post-hearing briefs are where the evidence meets the law. They are often as important as the hearing itself.
• A residency case can take one to two years or more from petition to determination. Preparation and patience are essential.
• Determinations can be appealed to the Tax Appeals Tribunal within 30 days, and then to the courts.

Frequently Asked Questions

What is the New York Division of Tax Appeals? 

The Division of Tax Appeals is an independent forum, separate from the Division of Taxation, where taxpayers can challenge tax assessments at a formal hearing before an impartial Administrative Law Judge. It handles disputes only after a petition is filed and is not involved in assessing or collecting tax.

Do I have to go through a conciliation conference before requesting a hearing? 

No. A conciliation conference is optional. You may proceed directly to the Division of Tax Appeals by filing a petition within 90 days of your Notice of Deficiency or Notice of Determination. Many taxpayers use conciliation first because it is faster and less expensive, but it is not required.

How long do I have to file a petition after a Conciliation Order? 

You have 90 days from the date the Conciliation Order is issued. This deadline is jurisdictional. If you do not file within 90 days, the Conciliation Order becomes final and you lose the right to a hearing.

How long does a residency case take?

A residency case commonly takes one to two years or more from the filing of the petition to the Administrative Law Judge’s determination. The Administrative Law Judge generally issues a determination within six months after the hearing concludes or briefs are submitted, with a possible extension of up to three months.

Who has the burden of proof in a New York residency case? 

The taxpayer generally carries the burden. To prove a change of domicile, the taxpayer must show it by clear and convincing evidence, a high standard. For statutory residency, the taxpayer must show, primarily through records, that they did not maintain a permanent place of abode in New York while spending more than 183 days in the state.

What is the difference between domicile and statutory residency?

Domicile is your true, permanent home, the place you intend to return to. Statutory residency is a separate test based on maintaining a permanent place of abode in New York and being present in the state for more than 183 days in a year. You can be taxed as a New York resident under either theory, so a residency case often addresses both.

Do the strict rules of evidence apply at the hearing? 

Not strictly. The Division of Tax Appeals is designed to provide due process while avoiding undue formality. The Administrative Law Judge controls the admission of evidence and generally receives relevant, reliable proof. Even so, documents should be authenticated and testimony should be credible to carry weight.

What is a post-hearing brief and why does it matter?

A post-hearing brief is a written submission filed after the hearing on a schedule set by the Administrative Law Judge. It ties the evidence in the record to the governing legal standards and argues why the assessment should be canceled or reduced. A persuasive brief can be decisive because it tells the Administrative Law Judge what the record means.

Can I appeal if I lose before the Administrative Law Judge? 

Yes. Either party may file an exception with the New York State Tax Appeals Tribunal within 30 days of the determination. The Tribunal can affirm, reverse, or modify the result, and a taxpayer who is still dissatisfied may seek judicial review in the courts.

Should I handle a residency hearing myself? 

A formal residency hearing is a trial in substance. It involves strict deadlines, sworn testimony, evidentiary rulings, a demanding burden of proof, and post-hearing briefing. Experienced representation is strongly recommended to build the record, present the case, and protect your appeal rights.

Mr. Shimick is a Partner at Whiteman Osterman & Hanna, LLP, and the leader of the firm’s Federal and State Taxation Practice Group. You can contact him at (518) 487-7678 or by email at sshimick@woh.com.

Disclaimer: This post provides general information for educational purposes and is not legal, tax, or accounting advice. Tax rates, thresholds, and elections change; consult qualified counsel and tax advisors about your firm’s specific circumstances.

Last updated September 1, 2026