If a Connecticut resident occasionally works in New York, then later takes a New York City job and buys a Manhattan apartment, when does he have to file a New York nonresident or resident personal income tax return, and how does he allocate his wages?

Plain-English summary

An accounting firm asked New York's Department of Taxation and Finance about a foreign national, green-card-holding individual who is domiciled in Connecticut (home, driver's license, vehicle registration, and children's school all in Connecticut, and he files a Connecticut resident return). The petition traced the same person through three consecutive years and asked six related questions about when he owes New York income tax and how he must report it.

In year one, he worked out of his employer's Connecticut office (the employer also has New York locations) but drove into New York one or two days a week for meetings, occasionally staying overnight at a hotel; he kept no New York residence. In year two, he left the Connecticut job, started a new job in New York City on January 1, commuted daily from Connecticut, and in September bought an uninhabitable Manhattan apartment as an investment that he never lived in that year. In year three, the apartment's repairs finished in January, he used it fewer than 50 nights, never rented it out, and expected to spend fewer than 183 days in New York while traveling extensively for business.

The Department held that in all three years the individual was a nonresident who had to file a New York nonresident return (Tax Law § 651(a)(3)) because he earned New York source income from an occupation carried on in New York, and in each year he had to allocate his wages between New York and non-New York working days - counting both full and part days - under 20 NYCRR 132.18. He never became a New York statutory resident because he never satisfied both halves of the test in Tax Law § 605(b)(1)(B): maintaining a permanent place of abode in New York for substantially all the year (more than 11 months, per the Department's Nonresident Audit Guidelines) and spending more than 183 days in New York. In year two the apartment was only owned from September onward; in year three, even though the apartment was held nearly the whole year, he expected to stay under 183 days.

The opinion also addressed a purely hypothetical sixth scenario: if the same individual maintained the New York apartment for substantially all of a year and spent more than 183 full or part days in New York, he would have to file as a full New York resident under Tax Law § 651(a)(1) and report all of his income - regardless of how few nights (even under 50) he actually slept in the apartment, because the statutory residency test looks at abode maintenance and day count, not nights of actual occupancy.

What this means for you

Commuters and cross-border employees

If you're domiciled outside New York but occasionally drive or travel into the state for work - even just one or two days a week - those days generate New York source income. You'll need to file a New York nonresident return once you have New York source income exceeding the filing thresholds, and you must allocate your wages using the full-day/part-day method in 20 NYCRR 132.18, based on the ratio of New York working days to total working days.

Buying a New York apartment while living elsewhere

Owning a New York City apartment doesn't automatically make you a New York resident for tax purposes. You only become a statutory resident if you (1) maintain a permanent place of abode in New York for substantially all the year (more than 11 months) AND (2) spend more than 183 days in New York during the year. Miss either prong - as this individual did when he bought the apartment mid-year, or when he stayed under 183 days despite holding the apartment nearly all year - and you remain a nonresident, taxed only on New York source income.

Accountants and tax professionals

Remember that the 50-nights-in-the-apartment detail in year three and the hypothetical in issue 6 is a red herring for residency purposes: nights actually spent in the apartment don't factor into the day-count test at all. What matters is (a) how long the abode was maintained during the year and (b) how many days - full or part - the client spent physically present in New York.

Common questions

Q: Does driving into New York one or two days a week for work require a New York tax filing?
A: Yes. Because the individual earned New York source income from an occupation carried on in New York, he was required to file a New York nonresident return under Tax Law § 651(a)(3), even though his Connecticut employer treated all his wages as Connecticut source on his W-2.

Q: How is compensation split between New York and non-New York work?
A: Under 20 NYCRR 132.18, a nonresident allocates wages using the ratio of full and part working days spent in New York to total full and part working days spent within and without New York.

Q: Did buying a Manhattan apartment mid-year (year two) make the individual a New York resident?
A: No. Because the apartment was acquired in September, it was not maintained for "substantially all" of the taxable year (more than 11 months, per the Department's Nonresident Audit Guidelines), so he could not be a statutory resident for that year regardless of days spent in New York.

Q: In year three, the apartment was held almost the whole year - did that make him a resident?
A: No, because he expected to spend fewer than 183 full or part days in New York that year. Statutory residency requires both the abode-maintenance test and the 183-day test; failing either one keeps a taxpayer a nonresident.

Q: Would spending fewer than 50 nights in the apartment protect someone from resident status?
A: Not by itself. The opinion's hypothetical (issue 6) makes clear that if someone maintains a New York abode for substantially all the year and spends more than 183 full or part days in New York, they must file as a resident and report all income - even if they slept in the apartment fewer than 50 nights.

Citations and references

• Tax Law § 601(e) - imposes personal income tax on nonresidents and part-year residents based on New York source income
• Tax Law § 605(b)(1) - defines resident individual, including the statutory residency test (permanent place of abode plus more than 183 days in New York)
• Tax Law § 631(a) and (b)(1) - defines New York source income of a nonresident, including income from an occupation carried on in New York
• Tax Law § 651(a) - sets filing requirements for resident individuals (§ 651(a)(1)) and nonresident/part-year resident individuals (§ 651(a)(3))
• 20 NYCRR 105.20 - defines resident individual, permanent place of abode, and the rules for counting days within and without New York
• 20 NYCRR 132.4(b) - taxes a nonresident employee's compensation to the extent services were rendered in New York
• 20 NYCRR 132.18 - requires allocation of a nonresident employee's wages using the full-day/part-day working-days method
• IRC § 7701(b)(1) and Treas. Reg. § 301.7701(b)-1(b)(1) - the federal green card test used to determine the individual's status as a resident alien for federal purposes
• Department of Taxation and Finance, Nonresident Audit Guidelines (July 25, 1997) - explains that "substantially all of the taxable year" means a period exceeding 11 months

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2004.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a04_2i.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Tax Policy Analysis
Technical Services Division

TSB-A-04(2)I
Income Tax
April 27, 2004

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I030829B

On August 29, 2003, a Petition for Advisory Opinion was received from Marano Distante
Crombie LLC, c/o Michael J. Crombie, CPA, 445 Broadhollow Road, Suite 400, Melville,
New York 11747.
The issues raised by Petitioner, Marano Distante Crombie LLC, are:

1. In year one, whether an individual who works at a Connecticut office of a corporation
   which also has a business location in New York is required to file a New York nonresident
   personal income tax return for the year because he comes into New York for business
   meetings.
2. If the answer to issue 1 is yes, is he required to allocate his wages to New York State on
   a full day or part of a day basis?
3. In year two, whether an individual who leaves his Connecticut job and commences
   employment in New York City on January 1 and purchases an apartment in New York is
   required to file a New York nonresident personal income tax return for the year.
4. If the answer to issue 3 is yes, is he required to allocate his wages to New York State on
   a full day or part of a day basis?
5. In year three, whether an individual who maintained an apartment in New York City and
   spent less than 183 days in New York is allowed to file a New York State nonresident
   personal income tax return and allocate his wages to New York State on a full day or part
   of a day basis, or is required to file as a resident of New York and report all of his wages for
   the year.
6. Whether an individual who maintained an apartment in New York City would be required
   to file as a resident of New York State if he spent more than 183 full or part days in
   New York but less than 50 nights in the apartment.
   Petitioner submits the following facts as the basis for this Advisory Opinion.
   An individual is a foreign national and is a resident of Connecticut. The individual files a
   Connecticut resident personal income tax return reporting his worldwide income. He is married,
   owns a home in Connecticut, and his children attend school in Connecticut. He possesses a

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Connecticut driving license, and his vehicles are registered in Connecticut. The individual has a
green card and is a permanent resident of the United States.
In year one, the individual works at the Connecticut office of the corporation which has
business locations in several states, including Connecticut and New York. The individual’s wage
and tax statement (W-2) indicates that all wages are Connecticut source income. The individual
often drives into New York State one or two days each week for management meetings and business
functions. During these trips, he is representing the Connecticut office of his employer. The
operations in Connecticut are entirely separate and distinct from the New York operations. His
functions do not have anything to do with the New York operation. His visits involve working a full
day or part of a day while in New York State. He does not maintain a residence in New York.
However, on rare occasions, when attending a breakfast meeting or when going to the airport for a
business trip, he stays in New York overnight at a hotel. The individual files a Connecticut resident
personal income tax return reporting all of his income.
In year two, the individual leaves his Connecticut based job and commences a new job in
New York City on January 1 of such year. The new job requires considerable overnight travel out
of state. The individual commutes from his residence in Connecticut to New York City each day.
Most evenings, when working in New York City, he returns to his home in Connecticut. However,
on occasion, he stays in New York overnight at a hotel. In September of such year, the individual
purchases an apartment located in New York City. The apartment is purchased primarily as an
investment. The apartment is uninhabitable and requires extensive work in the form of repairs and
improvements. The individual does not reside in the apartment at any time during the year. The
individual files a Connecticut resident personal income tax return reporting all of his income.
In year three, the work on the individual’s New York City apartment is completed during
January. The individual continues to work in New York City and travel outside of New York for
business purposes. The individual continues to maintain his residence in Connecticut. He also uses
his New York City apartment less than 50 nights during the year. The apartment is not rented out
at any time during the year. The individual expects to work in New York at least 100 days and
travel outside of New York for business purposes 130 days during the year. He expects to be in
New York less than 183 full or part days during the year.
Applicable law and regulations
Section 7701(b)(1) of the Internal Revenue Code (IRC) provides, in part:
(A) Resident alien. An alien individual shall be treated as a resident of the United
States with respect to any calendar year if (and only if) such individual meets the
requirements of clause (i), (ii), or (iii):

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(i) Lawfully admitted for permanent residence. Such individual is a lawful
permanent resident of the United States at any time during such calendar year.
(ii) Substantial presence test. Such individual meets the substantial presence test of
paragraph (3).
(iii) First year election. Such individual makes the election provided in paragraph
(4).
Section 301.7701(b)-1(b)(1)of the Treasury Regulations provides:
Green card test. An alien is a resident alien with respect to a calendar year if the
individual is a lawful permanent resident at any time during the calendar year. A lawful
permanent resident is an individual who has been lawfully granted the privilege of residing
permanently in the United States as an immigrant in accordance with the immigration laws.
Resident status is deemed to continue unless it is rescinded or administratively or judicially
determined to have been abandoned.
Section 601(e) of the Tax Law imposes a personal income tax on nonresidents and
part-year residents of New York State, and provides, in part:
Nonresidents and part-year residents. (1) General. There is hereby imposed for each
taxable year on the taxable income which is derived from sources in this state of every
nonresident and part-year resident individual ... a tax which shall be equal to the tax base
multiplied by the New York source fraction.
(2) Tax base. The tax base is the tax computed under subsections (a) through (d) of
this section, as the case may be, reduced by the credits permitted under subsections (b), (c),
(d) and (m) of section six hundred six, as if such nonresident or part-year resident individual
. . . were a resident subject to the provisions of part II of this article.
(3) New York source fraction. The New York source fraction is a fraction the
numerator of which is such individual's ... New York source income determined in
accordance with part III of this article and the denominator of which is such individual's
New York adjusted gross income determined in accordance with part II of this article. . . .
Section 605(b) of the Tax Law provides, in part:
Resident, nonresident and part-year resident defined. (1) Resident individual. A
resident individual means an individual:

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*

*

*

(B) who is not domiciled in this state but maintains a permanent place of abode in
this state and spends in the aggregate more than one hundred eighty-three days of the taxable
year in this state, unless such individual is in active service in the armed forces of the United
States.
(2) Nonresident individual. A nonresident individual means an individual who is not
a resident or a part-year resident.
*

*

*

(5) Part-year resident individual. A part-year resident individual is an individual who
is not a resident or nonresident for the entire taxable year.
Section 631 of the Tax Law provides, in part:
(a) General. The New York source income of a nonresident individual shall be the
sum of the following: (1) The net amount of items of income, gain, loss and deduction
entering into his federal adjusted gross income, as defined in the laws of the United States
for the taxable year, derived from or connected with New York sources, ... and
(2) The portion of the modifications described in subsections (b) and (c) of section
six hundred twelve which relate to income derived from New York sources....
(b) Income and deductions from New York sources.
(1) Items of income, gain, loss and deduction derived from or connected with
New York sources shall be those items attributable to:
(A) the ownership of any interest in real or tangible personal property in this
state; or
(B) a business, trade, profession or occupation carried on in this state; ...
Section 651(a) of the Tax Law provides, in part:
General. On or before the fifteenth day of the fourth month following the close of
the taxable year, an income tax return under this article shall be made and filed by or for:

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(1) every resident individual (A) required to file a federal income tax return for the
taxable year, or (B) having federal adjusted gross income for the taxable year, increased by
the modifications under subsection (b) of section six hundred twelve, in excess of four
thousand dollars, or in excess of his New York standard deduction, if lower, or (C) subject
to tax under section six hundred two, or (D) having received during the taxable year a lump
sum distribution any portion of which is subject to tax under section six hundred three;
*

*

*

(3) every nonresident or part-year resident individual having New York source
income for the taxable year, determined under part III of this article, and having New York
adjusted gross income for the taxable year, determined under part II of this article, in excess
of the taxpayers’s New York standard deduction, or subject to tax under section six hundred
two, or having received during the taxable year a lump sum distribution any portion of which
is subject to tax under section six hundred three; ...
Section 105.20 of the Personal Income Tax Regulations (Regulations) defines resident
individual and provides, in part:
(a) General. An individual may be a resident of New York State for personal income
tax purposes, and taxable as a resident, even though such individual would not be deemed
a resident for other purposes. As used in this Subchapter, the term resident individual
includes:
(1) all persons domiciled in New York State, subject to the exceptions set forth in
subdivision (b) of this section; and
(2) any individual (other than an individual in active service in the Armed Forces of
the United States) who is not domiciled in New York State, but who maintains a permanent
place of abode for substantially all of the taxable year (generally, the entire taxable year
disregarding small portions of such year) in New York State and spends in the aggregate
more than 183 days of the taxable year in New York State.
*

*

*

(c) Rules for days within and without New York State. In counting the number of
days spent within and without New York State, presence within New York State for any part
of a calendar day constitutes a day spent within New York State, except that such presence
within New York State may be disregarded if such presence is solely for the purpose of
boarding a plane, ship, train or bus for travel to a destination outside New York State, or
while traveling through New York State to a destination outside New York State. Any
person domiciled outside New York State who maintains a permanent place of abode within
New York State during any taxable year, and claims to be a nonresident, must keep and have

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available for examination by the Department of Taxation and Finance adequate records to
substantiate the fact that such person did not spend more than 183 days of such taxable year
within New York State.
*

*

*

(e) Permanent place of abode. (1) A permanent place of abode means a dwelling
place permanently maintained by the taxpayer, whether or not owned by such taxpayer, and
will generally include a dwelling place owned or leased by such taxpayer’s spouse.
However, a mere camp or cottage, which is suitable and used only for vacations, is not a
permanent place of abode. Furthermore, a barracks or any construction which does not
contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc.,
will generally not be deemed a permanent place of abode. Also, a place of abode, whether
in New York State or elsewhere, is not deemed permanent if it is maintained only during a
temporary stay for the accomplishment of a particular purpose. For example, an individual
domiciled in another state may be assigned to such individual's employer's New York State
office for a fixed and limited period, after which such individual is to return to such
individual's permanent location. If such an individual takes an apartment in New York State
during this period, such individual is not deemed a resident, even though such individual
spends more than 183 days of the taxable year in New York State, because such individual's
place of abode is not permanent. Such individual will, of course, be taxable as a nonresident
on such individual's income from New York State sources, including such individual's salary
or other compensation for services performed in New York State. However, if such
individual's assignment to such individual's employer's New York State office is not for a
fixed or limited period, such individual's New York State apartment will be deemed a
permanent place of abode and such individual will be a resident for New York State personal
income tax purposes if such individual spends more than 183 days of the year in New York
State. The 183-day rule applies only to taxpayers who are not domiciled in New York State.
Section 132.4(b) of the Regulations provides, in part:
The New York adjusted gross income of a nonresident individual rendering personal
services as an employee includes the compensation for personal services entering into his
Federal adjusted gross income, but only if, and to the extent that, his services were rendered
within New York State.... Where the personal services are performed within and without
New York State, the portion of the compensation attributable to the services performed
within New York State must be determined in accordance with sections [132.17 through
132.19] of this Part.
Section 132.18 of the Regulations provides, in part:
(a) If a nonresident employee (including corporate officers, but excluding employees
provided for in section 132.17 of this Part) performs services for his employer both within

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and without New York State, his income derived from New York State sources includes that
proportion of his total compensation for services rendered as an employee which the total
number of working days employed within New York State bears to the total number of
working days employed both within and without New York State. The items of gain, loss
and deduction (other than deductions entering into the New York itemized deduction) of the
employee attributable to his employment, derived from or connected with New York State
sources, are similarly determined. However, any allowance claimed for days worked outside
New York State must be based upon the performance of services which of necessity, as
distinguished from convenience, obligate the employee to out-of-state duties in the service
of his employer. In making the allocation provided for in this section, no account is taken
of nonworking days, including Saturdays, Sundays, holidays, days of absence because of
illness or personal injury, vacation, or leave with or without pay.
Opinion
For federal personal income tax purposes, a foreign national who meets the green card test
is considered a resident alien. As a resident alien, an individual must follow the same federal tax
laws as a United States citizen. In this case, the individual is domiciled in Connecticut, maintains
a residence in Connecticut, files a resident personal income tax return with Connecticut, and works
within and without New York State.
Section 601(e) of the Tax Law imposes a personal income tax on the taxable income which
is derived from New York sources of a nonresident individual. The tax is equal to the tax computed
as if the individual were a New York State resident for the entire year, reduced by certain credits,
and then multiplied by the income percentage (i.e., New York source fraction). The numerator of
the fraction used to compute the income percentage is the individual’s New York source income.
The denominator of the fraction used to compute the income percentage is the nonresident’s
New York adjusted gross income from all sources for the entire year.
Section 631(a) of the Tax Law provides that the New York source income of a nonresident
is the sum of the items of income, gain, loss and deduction entering into federal adjusted gross
income derived from or connected with New York sources and any New York addition and
subtraction modifications under section 612(b) and (c) of the Tax Law that relate to income derived
from New York sources.
In issue 1, the individual, domiciled in Connecticut, is working out of his office in
Connecticut and commutes one or two days each week to New York State for work in year one. His
visits involve working a full day or part of a day while in New York State. On occasion, the
individual stays overnight at a hotel located in New York State. The individual is a nonresident of
New York State who receives income from New York sources attributable to an occupation carried
on within New York State. Therefore, a nonresident personal income tax return is required to be
filed for the year pursuant to section 651(a)(3) of the Tax Law.

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In issue 2, since the nonresident individual received compensation for personal services
rendered both within and without New York State, pursuant to section 132.18 of the Regulations
the individual must allocate the total amount of wages received from his employer to determine an
amount that represents services rendered within New York State. The income derived from
New York sources includes that proportion of the total compensation for services rendered as an
employee which the total number of full working days and part working days employed within
New York State bears to the total number of full working days and part working days employed both
within and without New York State. Therefore, the taxpayer is required to allocate his wages to
New York on both a full day basis and part of a day basis.
In issue 3, the individual, domiciled in Connecticut, starts a new job in New York City on
January 1 of year two. The individual commutes to New York City each day from his Connecticut
residence. The visits involve working a full day or part of a day while in New York State. The job
requires considerable overnight travel outside of New York State. On occasion, the individual stays
overnight at a hotel located in New York State. In September of the second year, the individual
purchases an apartment located in New York City primarily for investment purposes. The apartment
is uninhabitable and requires extensive work in the form of repairs and improvements. The
individual does not reside in the apartment at any time during the year.
To be considered a resident of New York State pursuant to section 605(b)(1)(B) of the Tax
Law and section 105.20(a)(2) of the Regulations, a non-domiciliary individual would have to
maintain a permanent place of abode in New York for substantially all of the taxable year and spend
in the aggregate more than 183 days in the taxable year in New York State. In counting the number
of days spent within and without New York State, presence within New York State for any part of
a calendar day constitutes a day spent within New York State, except that such presence within
New York State may be disregarded if such presence is solely for the purposes of boarding a plane,
ship, train or bus for travel to a destination outside New York State, or while traveling through
New York State to a destination outside New York State.
The Department of Taxation and Finance Income Tax Nonresident Audit Guidelines dated
July 25, 1997, page 38, provides that for this purpose, the phrase substantially all of the taxable year
means a period exceeding 11 months. For example, an individual who acquires a permanent place
of abode on March 15th for the taxable year and spends 184 days in New York State would not be
a statutory resident since the permanent place of abode was not maintained for substantially the
entire year. Similarly, if an individual maintains a permanent place of abode at the beginning of the
year but disposes of it on October 30th of the tax year, the individual would not be a statutory
resident despite spending over 183 days in New York. Since the individual did not maintain a
permanent place of abode in New York for more than 11 months, the individual would not be
considered a resident of New York State for any part of the year.
In this case, the individual acquired an apartment in September of the second year. Since
the individual does not maintain the permanent place of abode in New York for substantially all of
the taxable year, pursuant to section 605(b)(1) of the Tax Law and section 105.20(a)(2) of the

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Regulations, the individual is not considered to be a resident individual for that taxable year.
However, since the nonresident individual received income from New York sources attributable to
an occupation carried on within New York State, a nonresident personal income tax return is
required to be filed for the year pursuant to section 651(a)(3) of the Tax Law.
In issue 4, since the nonresident individual received compensation for personal services
rendered both within and without New York State, pursuant to section 132.18 of the Regulations
the individual must allocate the total amount of wages received from his employer to determine an
amount that represents services rendered within New York State. The income derived from
New York sources includes that proportion of the total compensation for services rendered as an
employee which the total number of full working days and part working days employed within
New York State bears to the total number of full working days and part working days employed both
within and without New York State. Therefore, the taxpayer is required to allocate his wages to
New York on both a full day basis and part of a day basis.
In issue 5, the nonresident individual, domiciled in Connecticut, continues to work at his
New York City based job and travel outside of New York for business purposes. The work on the
New York City apartment is completed during January. He uses the apartment less than 50 nights
during the year. The individual expects to work in New York at least 100 days and travel outside
of New York for business purposes 130 days. He expects to be in New York less than 183 full and
part days during the year.
As previously discussed in issue 3, to be considered a resident of New York State, an
individual would have to maintain a permanent place of abode in New York for substantially all of
the taxable year and spend in the aggregate more than 183 days in the taxable year in New York
State. In this case, the work on the apartment was completed in January of the third year and the
individual uses the apartment less than 50 nights during the year. As such, the individual maintains
a permanent place of abode in New York State for substantially all of the third year. Since the
individual does not spend more than 183 days in New York State for the year, pursuant to section
605(b)(1) of the Tax Law and section 105.20(a)(2) of the Regulations the individual is not
considered to be a resident individual for such year. However, since the nonresident individual
received income from New York sources attributable to an occupation carried on within New York
State, a nonresident personal income tax return is required to be filed for the year pursuant to section
651(a)(3) of the Tax Law.
The compensation received by the individual for personal services rendered both within and
without New York State, pursuant to section 132.18 of the Regulations, must be allocated to
determine the total amount of wages received from his employer that represents services rendered
within New York State. Wages allocated to New York State include compensation paid for services
rendered within New York State for full and part working days.
In issue 6, the individual maintained a permanent place of abode in New York State for
substantially all of the year. If he spends more than 183 days in the taxable year in New York State,

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a resident personal income tax return would be required to be filed for the year pursuant to section
651(a)(1) of the Tax Law, and the individual would be subject to New York State personal income
tax as a resident for the taxable year, regardless of whether the individual spends less than 50 nights
in his apartment during the taxable year.

DATED: April 27, 2004

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Technical Services Division

The opinions expressed in Advisory Opinions are
limited to the facts set forth therein.