Is the $7,500 salary Petitioner was paid for January 2003 New York source income under Tax Law § 631, even though Petitioner never physically entered New York State during that month?

Plain-English summary

Petitioner, a Connecticut resident, worked as a salesman in New York for Thomson Financial until January 31, 2003. Thomson paid him a $7,500 salary for January 2003, roughly $77,000 in commissions deferred from 2002, and $106,451.45 in severance pay spread over 16 weeks after his separation. Petitioner never entered New York during January 2003 and performed no services for Thomson - inside or outside New York - at any point in 2003. He asked whether the January salary, the deferred commissions, and the severance pay were New York source income, and how to complete the "Federal amount" column of his New York nonresident return.

On the January salary, the Department held that because Petitioner rendered no services for Thomson at all in 2003, the $7,500 could not be ordinary current-year wages tied to work performed (or not performed) that month. Instead, it was compensation connected with the termination of employment - consideration for past services under 20 NYCRR 132.4(d) - so the fact that Petitioner stayed out of New York in January did not automatically remove it from New York source income. The deferred 2002 commissions were treated as compensation for services actually rendered in 2002 and sourced to New York to the extent Petitioner worked in New York that year, using the working-day allocation method in 20 NYCRR 132.18.

Because Petitioner had no written employment contract with Thomson, the severance payments (and the January salary) were not payments made in exchange for relinquishing a contractual right to future employment - the Donahue/Laurino/McSpadden line of cases addressing lump-sum buyouts of employment contracts did not apply. Instead, the severance and the January salary were both past-service compensation, allocated to New York under 20 NYCRR 132.20 using a formula comparing Petitioner's New York compensation to his total compensation over 2000-2002 (the three years preceding his 2003 separation), rather than being taxed based on where Petitioner happened to be physically located when the checks were paid.

Finally, on the joint-return question, the Department noted that under Tax Law §§ 601(e)(2) and 611(b)(2), if Petitioner and his spouse filed a joint federal return for 2003 and both were nonresidents but only Petitioner had New York source income, Petitioner had to file a joint New York return and report both spouses' income - including the spouse's non-New York income and any taxable refunds, such as a Connecticut refund - in the federal amount column.

What this means for you

Nonresidents receiving a final paycheck or severance after leaving a NY job

If your last active working period was in New York but a payment - a final month's salary, severance, or deferred commissions - arrives after you've stopped performing any services, don't assume it escapes New York tax just because you weren't physically in New York when it was paid or earned. The Department looks at whether the payment compensates for past services and, if so, allocates it to New York based on your work history over prior years (here, the three years preceding separation), not your location during the payment period.

Employees without a written employment contract who receive severance

The Donahue/Laurino/McSpadden case line - which can shield lump-sum buyouts of a contractual right to future employment from New York tax - only helps taxpayers who had a contractual employment relationship to relinquish. Without a written contract, severance pay is treated as compensation for past services and allocated to New York under 20 NYCRR 132.20 like any other deferred pay.

Nonresident couples filing a joint federal return

If you and your spouse file jointly for federal purposes, are both nonresidents, and only one of you has New York source income, New York still requires a joint nonresident return (Tax Law § 611(b)(2)), and the "Federal amount" column must include both spouses' full income - including out-of-state refunds like a Connecticut refund - not just the New York-source portion.

Common questions

Q: Does staying out of New York during the month a paycheck is issued make that paycheck exempt from New York tax?
A: Not by itself. Here, the $7,500 January salary was paid for a month in which Petitioner performed no services anywhere for Thomson, so the Department treated it as past-service compensation under 20 NYCRR 132.4(d) and allocated it to New York using the three-prior-year formula in 20 NYCRR 132.20 - physical presence during the pay period was not the controlling factor.

Q: How are the deferred 2002 commissions sourced?
A: They're compensation for services actually performed in 2002, so they're New York source income under Tax Law § 631 and 20 NYCRR 132.4(c) to the extent Petitioner worked in New York in 2002, allocated using the working-day ratio in 20 NYCRR 132.18.

Q: Why didn't the severance pay qualify for the tax-free treatment given to some lump-sum employment buyouts in other cases?
A: Cases like Donahue v. Chu exempt payments made in exchange for giving up a contractual right to future employment. Petitioner had no written employment contract with Thomson, so his severance wasn't consideration for relinquishing such a right - it was ordinary past-service compensation, allocable to New York under 20 NYCRR 132.20.

Q: What allocation period applies to the severance and January salary?
A: Since Petitioner performed no services in 2003, the allocation under 20 NYCRR 132.20 is based on the three taxable years before separation - 2000, 2001, and 2002 - comparing New York compensation to total compensation for those years (with the 2002-attributable deferred commissions folded into 2002's totals).

Q: Does a nonresident with a working spouse have to include the spouse's non-New York income on the joint NY return?
A: Yes. Under Tax Law §§ 601(e)(2) and 611(b)(2), a couple that files jointly for federal purposes and includes at least one nonresident with New York source income must file a joint New York return and report the full federal-column income of both spouses, including out-of-state refunds.

Citations and references

• Tax Law § 601(e) - imposes personal income tax on a nonresident's New York source income
• Tax Law § 611(b)(2) - requires a joint New York return where spouses filed a joint federal return
• Tax Law § 631(a)-(b) - defines New York source income of a nonresident individual
• 20 NYCRR 132.4(c) - compensation for services performed in New York is NY source income regardless of when paid
• 20 NYCRR 132.4(d) - termination/past-service compensation for a nonresident is taxable to the extent underlying services were in New York
• 20 NYCRR 132.18 - allocates a nonresident employee's compensation using NY versus total working days
• 20 NYCRR 132.20 - allocates severance/deferred compensation using a prior-years NY-versus-total compensation ratio
• Matter of Donahue v. Chu, 104 AD2d 523 - lump sum for relinquishing a contractual right to future employment is not NY source income
• Matter of Laurino, DTA No. 807912 - lump sum tied to continued NY service is NY source income
• Matter of McSpadden, DTA No. 810895 - payment for relinquishing a contractual employment right, not past services, is not NY source income
• Matter of Hayes v. State Tax Commn, 61 AD2d 62 - a nonresident performing no NY services owes no NY tax regardless of employer location

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2005.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a05_2i.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Tax Policy Analysis
Technical Services Division

TSB-A-05(2)I
Income Tax
April 4, 2005

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I040414A

On April 14, 2004, a Petition for Advisory Opinion was received from Robert M. Braun,
42 Fresh Meadow Drive, Trumbull, CT 06611.
The issues raised by Petitioner, Robert M. Braun, are:

1. Whether $7,500 salary paid to Petitioner for the month of January 2003 is New York
   source income under section 631 of the Tax Law where Petitioner did not come into
   New York State at any time during January 2003.
2. Whether deferred commissions received in 2003 are New York source income for
   purposes of section 631 of the Personal Income Tax Law. If so, what method is used in
   determining the amount of New York source income where prior services were
   performed within and without New York.
3. Whether severance pay received in 2003 is New York source income for purposes of
   section 631 of the Personal Income Tax Law. If so, what method is used in determining
   the amount of New York source income where prior services were performed within and
   without New York?
4. Whether Petitioner should include in the column labeled “Federal amount” on his 2003
   Nonresident and Part-Year Resident Income Tax Return (Form IT-203) (a) his spouse’s
   income, which is not derived from or connected with New York sources, and (b) all
   taxable refunds received, including refunds received from Connecticut.
   Petitioner submits the following facts as the basis for this Advisory Opinion.
   Petitioner is a resident of Connecticut. Petitioner was employed as a salesman in
   New York by Thomson Financial (Thomson) until January 31, 2003. Petitioner did not have a
   written employment contract with Thomson. In 2003, Thomson paid Petitioner a salary of
   $7,500 for the month of January 2003, and approximately $77,000 in commissions deferred from
5. All payments received from Thomson were reported on a federal wage and tax statement,
   Form W-2. Petitioner did not come into New York State at any time during January 2003 and
   did not perform any services for Thomson inside or outside New York State in 2003. In
   addition, Petitioner received severance pay from Thomson in the amount of $106,451.45 spread
   over 16 weeks following the separation. The amount of severance pay was determined by
   Thomson using a formula based on Petitioner’s 2002 income and the number of years with the
   firm. By letter, Thomson offered a severance package in lieu of any other company benefits, and

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by signing the letter Petitioner acknowledged that the severance benefits are more valuable than
benefits to which Petitioner would otherwise be entitled.
On February 3, 2003, Petitioner joined Midwood Securities of New York City.
Applicable law and regulations
Section 601(e) of the Tax Law imposes a personal income tax for nonresidents 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 611(b)(2) of the Tax Law provides, in part:
If the federal taxable income of husband and wife, both of whom are residents, is
determined on a joint federal return, their New York taxable income shall be determined
jointly.
Section 631of 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.

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(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 132.4 of the Personal Income Tax Regulations (Regulations) provides, in part:
Business, trade, profession or occupation carried on in New York State. (a)(1)
The New York adjusted gross income of a nonresident individual includes items of
income, gain, loss and deduction entering into his Federal adjusted gross income which
are attributable to a business, trade, profession or occupation carried on in New York
State.
*

*

*

(b) 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. Compensation for personal services
rendered by a nonresident individual wholly without New York State is not included in
his New York adjusted gross income, regardless of the fact that payment may be made
from a point within New York State or that the employer is a resident individual,
partnership or corporation. 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.
(c) If personal services are performed within New York State, whether or not as
an employee, the compensation for such services includible in Federal adjusted gross
income constitutes income from New York State sources, regardless of the fact that (1)
such compensation is received in a taxable year after the year in which the services were
performed, or (2) such compensation is received by someone other than the person who
performed the services.
(d) Pensions or other retirement benefits constituting an annuity. (1) General.
Where an individual formerly employed in New York State is retired from service and
thereafter receives a pension or other retirement benefit attributable to his former
services, the pension or retirement benefit is not taxable for New York State personal
income tax purposes if the individual receiving it is a nonresident and if it constitutes an
annuity as defined in paragraph (2) of this subdivision. Where a pension or other

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retirement benefit does not constitute an annuity, it is compensation for personal services
and, if the individual receiving it is a nonresident, it is taxable for New York State
personal income tax purposes to the extent that the services were performed in New York
State. The term compensation for personal services as used in the foregoing sentence
includes, but is not limited to, amounts received in connection with the termination of
employment, amounts received upon early retirement in consideration of past services
rendered, amounts received upon retirement for consultation services, and amounts
received upon retirement under a covenant not to compete. For allocation rules, see
section 132.20 of this Part.
Section 132.18 (a) 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 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.
Section 132.20 of the Regulations provides:
Pensions and other retirement benefits. If a pension or other retirement benefit
does not qualify as an annuity under section 132.4(d) of this Part, and is attributable to
services performed wholly within New York State, the entire amount included in the
individual's Federal adjusted gross income is likewise includible in his New York
adjusted gross income. If the pension or other retirement benefit is attributable to services
performed wholly outside New York State, no part of the amount received is includible in
the individual's New York adjusted gross income. Where the employee's services were
performed partly within and partly without New York State, the amount includible in the
individual's New York adjusted gross income is the proportion of the amount included in
the individual's Federal adjusted gross income which the total compensation, received
from the employer for the services performed in New York State during a period
consisting of the portion of the taxable year prior to retirement and the three taxable years
immediately preceding the retirement, bears to the total compensation received from the
employer during such period for services performed both within and without New York

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State. For purposes of this section, the compensation for services performed within
New York State must be determined separately for each taxable year or portion of a year
in accordance with the applicable provisions of section 132.17, 132.18 or 132.19 of this
Part. A determination of the portion of a pension or other form of deferred compensation
attributable to New York State on the basis of a period of time greater than the period
referred to above may be made if the individual establishes, to the satisfaction of the
[Commissioner of Taxation and Finance], the amount of his total yearly compensation for
a longer period of time and the amount allocable to New York State in each year in
accordance with the applicable provisions of sections 132.17 through 132.19 of this Part.
(For taxability of pensions and other retirement benefits in general, see section 132.4(d)
of this Part.)
Example:

A, a nonresident of New York State, performs services both within
and without New York State for a corporate employer under an
employment contract whereby for each year's services he is to
receive a salary of $40,000 during the period of employment and
an additional $100,000 payable in 10 equal annual installments
commencing after his employment terminates. A terminates his
employment on July 1, 1977, when he is 50 years of age and his
life expectancy is 25.5 years. Since the payments are not to run for
at least one half of A's life expectancy, they do not qualify as an
annuity under section 132.4(d) of this Part. Assuming that the
New York State percentages for allocating his salary were 50
percent for 1974, 60 percent for 1975, 75 percent for 1976, and 40
percent for the first half of 1977, the portion of additional
payments to be included in New York adjusted gross income
would be computed as follows:
Total compensation

New York

portion

1974
1975
1976
1977 (6 months)

$ 40,000
40,000
40,000
20,000

(50%)
(60%)
(75%)
(40%)

$20,000
24,000
30,000
8,000

Totals

$140,000

$82,000

$ 82,000 X $10,000 = $5,857.14 includible annually in A’s New York adjusted gross income.
$140,000
Opinion
Section 601(e) of the Tax Law imposes a personal income tax on the taxable income

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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 for the entire year. 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 individual 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 the Matter of Donahue v Chu, 104 AD2d 523, the nonresident taxpayer entered into a
five-year employment contract with his New York employer. The agreement provided that at the
conclusion of the five-year period the taxpayer would provide consulting services over the next
ten years at the rate of $20,000 per year. In the fifth year of the contract, the taxpayer and the
employer entered into a second agreement terminating the initial employment agreement. As
consideration for the relinquishment of these future rights, the taxpayer received the remainder of
his final year’s salary, as well as the sum of $107,361. The Court held that the payment was not
New York source income, because the right to future employment was originally secured by
consideration having no connection with New York (i.e., the promise to work in the future).
When the taxpayer entered into the contract, he had secured a right to future employment. In the
later agreement, which terminated the employment contract, the taxpayer received a payment in
exchange for relinquishing this right.
In the Matter of John A. and Deborah D. Laurino, Dec St Tax Trib, May 20, 1993, DTA
No. 807912, the Tribunal stated that it read Donahue, supra, to stand for the proposition that
where a nonresident possesses a right to future employment secured by consideration having no
connection with New York and relinquishes that right in exchange for a lump sum settlement, the
lump sum settlement is not taxable to New York. It concluded “that in determining whether
income is ‘derived from or connected with New York sources’ it is necessary to identify the
activity upon which the income was secured or earned (Matter of Halloran, [Tax Appeals
Tribunal, August 2, 1990, DTA No. 806902]). Thus, in making this determination, the
consideration given by [John Laurino] in exchange for the right to the income at issue is the
controlling factor.” In Laurino, supra, what the employer sought from the petitioner in exchange
for the right to a lump sum payment was the petitioner’s act of continued service up to the time
that a change of control in the corporation occurred. Because it was this continuing service to the
employer performed by the petitioner predominantly in New York which constituted the
consideration for the lump sum payment, a portion of this payment was derived from or
connected with New York sources. There was no merit to the petitioner’s argument that the lump

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sum payment was an alternative to future employment which would have occurred outside
New York and, thus, was not taxable to New York.
In the Matter of Peter F. and Barbara D. McSpadden, Dec St Tax Trib, September 15,
1994, DTA No. 810895, the petitioner’s employment contract provided petitioner with
employment through December 31, 1990. The petitioner and his employer negotiated a
settlement wherein it was agreed the petitioner would relinquish his contractual rights under the
employment agreement in exchange for a lump sum payment. The petitioner’s rights under the
employment agreement were originally secured by consideration having no connection to
New York, i.e., the petitioner’s promise to work for the corporation in the future. Therefore, the
petitioner was compensated for all services rendered up to his termination date of May 18, 1988,
and was owed no monies for past services. He did not perform any future services or
employment of any nature and thus was not paid upon retirement for consultation services. The
payment was not severance pay, nor was it made in exchange for a covenant not to compete. The
Tribunal held that the payment in question was not compensation for personal services rendered,
but rather was a payment made in exchange for the taxpayer’s relinquishment of a future
contractual right to employment and was not subject to New York State personal income tax.
In the Matter of Arthur Hull Hayes v State Tax Commn, 61 AD2d 62 [1978], the
petitioner was a nonresident working as a consultant for a New York based company under an
agreement which allowed him to work at home. The court held that since the petitioner
performed no services in New York for the income in question and did not maintain an office or
place of business in New York, the income was not received from a source in New York. The
court stated that “A nonresident who works in another state but who performs no work in
New York is not subject to New York State tax liability no matter for whose convenience or
necessity he performs the work.”
In issue 1, Petitioner was employed by Thomson until January 31, 2003, and received a
salary of $7,500 for the month of January. Petitioner did not perform any personal services for
Thomson either inside New York State or outside New York State during 2003. Since Petitioner
did not perform any services for Thomson during January 2003, the $7,500 received is
considered compensation for personal services in connection with the termination of
employment and is consideration for past services rendered pursuant to section 132.4(d) of the
Regulations. See issue 3 below for allocation rules with respect to this amount and the other
severance payments received by Petitioner in 2003.
In issue 2, Petitioner’s commissions received in 2003 that are deferred from 2002 are
compensation for personal services that are attributable to services rendered during 2002 and are
included in the New York source income for taxable year 2003 pursuant to section 631 of the
Tax Law and section 132.4(c) of the Regulations to the extent services were provided in
New York during 2002. Where the deferred commissions are compensation for personal
services that are attributable to services rendered within and without New York State during
2002, the portion of Petitioner’s deferred commissions that are attributable to New York sources

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is determined based on the provisions of section 132.18 of the Regulations. Therefore, if the
personal services rendered by Petitioner during 2002 were wholly within New York State, the
entire amount of deferred commissions included in Petitioner’s federal adjusted gross income is
likewise included in Petitioner’s New York source income for taxable year 2003. If the personal
services rendered by Petitioner during 2002 were performed partly within and partly without
New York State, the amount of deferred commissions attributable to New York sources for
taxable year 2003 is the amount determined using the same ratio Petitioner used to determine
Petitioner’s compensation for personal services rendered as an employee attributable to
New York sources for taxable year 2002. Such ratio is computed pursuant to section 132.18 of
the Regulations, and is based on the number of working days employed within and without
New York during 2002.
In issue 3, Petitioner did not have a contractual employment relationship with Thomson.
Since Petitioner’s separation from Thomson did not involve a termination of a contractual
employment relationship, this case is distinguishable from Donahue, supra. Accordingly, since
Petitioner did not have a contractual employment relationship with Thomson and the severance
payments are not in exchange for Petitioner’s right to future employment, the payments are
considered to be for prior services. The severance payments, including the $7,500 in salary
discussed in issue 1, are compensation for personal services that are attributable to past services
and if the services were performed wholly within New York State, the entire amount of
severance payments is New York source income for taxable year 2003 pursuant to section 631 of
the Tax Law. However, if the severance payments are compensation for personal services that
are attributable to past services rendered within and without New York State, pursuant to section
132.4(d) of the Regulations, the portion of Petitioner’s severance pay that is attributable to
New York sources is determined based on the provisions of section 132.20 of the Regulations.
Pursuant to section 132.20 of the Regulations, the portion of the severance payments and the
$7,500 salary that is includible in Petitioner’s New York source income in 2003 is the proportion
of such amount included in Petitioner’s federal adjusted gross income which the total
compensation received from Thomson for the services performed in New York State during a
period consisting of the portion of the taxable year prior to retirement and the three taxable years
immediately preceding the retirement bears to the total compensation received from Thomson
during such period for services performed both within and without New York State. Since
Petitioner did not perform any services for Thomson for taxable year 2003, this allocation is
based only on the three previous years, 2000, 2001, and 2002. For purposes of the allocation, the
deferred commissions that Petitioner received in 2003 that were attributable to services
performed in 2002, should be included in the total compensation received from Thomson for
services performed during taxable year 2002. For purposes of this allocation, the compensation
for services performed within New York State must be determined separately for each taxable
year or portion of a year. Petitioner may, but is not required to, determine the portion of
severance payments attributable to New York sources based on a period of time greater than the
period described above if Petitioner establishes to the satisfaction of the Tax Department the
amount of Petitioner’s yearly compensation for these years as well as the amount allocable to
New York in each year.

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In issue 4, pursuant to sections 601(e)(2) and 611(b)(2) of the Tax Law, if Petitioner files
a joint federal income tax return for taxable year 2003 and both spouses are nonresidents but
only one has New York source income, Petitioner must file a joint New York State income tax
return for 2003 using filing status married filing joint return and include in the federal column
the income of both spouses, including taxable refunds received from Connecticut, as reported on
Petitioner’s federal income tax return.

DATED: April 4, 2005

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.