In my Maine tax practice, I am frequently asked to advise people who wish to change their residency or domicile from Maine to some other state. With the passage of Question 2, imposing a 3 percent tax surcharge on taxable incomes over $200,000 effective for 2017, the number of people seeking to leave Maine will likely climb.

Frequently, the go-to state is Florida, which has no personal income tax, no estate tax and much warmer winters. Other low- or no-income tax states, such as nearby New Hampshire, are also a strong draw.

While people have the right to move from one state to another, it is extremely important that the change be made correctly and honestly. Failure to do so can lead to intrusive tax audits and large assessments of back taxes, including interest and penalties. In some cases that are more intentional, improper changes of domicile can and have led to criminal charges. Furthermore, once you stop filing Maine tax returns, there is no statute of limitations protection on civil assessments.

There are common misconceptions about how to change one’s domicile. The most frequent one I hear is that “All I need to do is spend six months and a day outside of Maine.” It’s not that simple. You can still be required to pay Maine income tax even if you spend less than six months in Maine. Having a permanent place of abode in Maine and spending an aggregate of more than 183 days of the year in Maine is one way of being a Maine resident for income tax purposes, but not the only way.

Someone who is “domiciled” in Maine is also a Maine resident for income tax purposes. “Domicile” is not defined in the Maine tax code but is defined by court decisions on a case-by-case basis. Maine courts generally define domicile as having a residence coupled with an intent to remain. Since no one can get inside your head, “intent” is proven by looking at all of the important facts and circumstances of your life. No single factor, such as having a driver’s license in the other state, is determinative. In an age when many people have homes in more than one state and spend substantial time in each, a domicile determination can be quite complicated to make.

Keep in mind that in Maine the taxpayer (you) has the burden of proof. This means that if you are audited, you will have to prove your case. It is critical to retain documentation evidencing not only your whereabouts during the year, but documents that reflect your intent not to remain in Maine.

There are also a number of legal presumptions that can work against a person seeking to change his or her domicile. One legal presumption is that when there is conflicting evidence as to intent, your original domicile (usually Maine) prevails. Another presumption is that your Maine domicile continues to follow you until you can affirmatively prove that you established a new domicile (i.e., residence and intent to remain) in the other state. Thus, one can be domiciled in Maine for tax purposes even if present in Maine for zero days of the year. For example, if you decide to go backpacking out West for two years, you are still a Maine resident for tax purposes during that time because you have not yet established a residence and intent to remain somewhere else. You must file Maine resident income tax returns even if you did not spend a single day in Maine during that time.

Is it possible for you to keep a vacation home in Maine while being considered a resident of another state? Certainly. As long as you can prove that your domicile (residence coupled with intent to remain) is in another state, and you do not spend more than 183 days of the year in Maine, you would be considered a nonresident. However, if you are considering changing your domicile but planning to retain vestiges of your life in Maine, be sure to proceed with caution and consult with a tax adviser who is familiar with these issues. Obtaining good advice before you make the change can avoid real problems down the road.