Legal Question in Real Estate Law in Illinois

My wife is from Illinois and owns a home. I am from Indiana and own a home. We each own our homes independently from one another. After we married last year we both now reside in her house in Illinois. I still own my home in Indiana. My question is can I still claim legal residency in Indiana? My purpose here is to avoid having to pay Illinois 5% income tax as compared to Indiana's 1% along with some other benefits. I would like to maintain my Indiana residency if at all possible, legally.

Thanks for your help in advance!


Asked on 1/26/11, 4:43 pm

1 Answer from Attorneys

Residency is determined by a variety of factors. Owning property is not necessarily the tipping point for income tax, since people do have vacation homes outside of their home state. Some are pretty much "absolutes", however, such as registering to vote in Illinois, and getting an Illinois driver's license. Then there are actions that can result in some heartburn: if you're employed what is the address you have on your W-2? If it's Illinois the Illinois DOR will expect you to file an Illinois return. So to the extent you've already done any of these things you may have already submitted to Illinois residency for income tax purposes, as the DOR has 3 classes of taxpayers: full time, like most of us, part-time, where you typically moved during the year and owe a portion of the year in taxes to Illinois, an non-residents such as vacationing and even students (students up to 9 months here). But here's the thing: how do you plan on filing your taxes? If you're filing jointly, there will be one address, and your incomes will be combined, and reported to Illinois. If you file as separate head of household, you run the risk of offsetting the savings you assume from the Illinois tax by potentially increasing your federal tax. And remember, Congress just extended federal tax cuts. So before you take any other actions that will make you for sure an Illinois resident (if you are not already), you may want to consult a tax preparer to compare the two scenarios, since Illinois taxes are deductible from AGI for federal tax purposes, and the net effect may not be as much as you may be anticipating.

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Answered on 1/28/11, 12:54 pm


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