Does a summer home in a cooperative community that restricts occupancy to a 5-month season and has no working heating system count as a 'permanent place of abode' for New York statutory residency purposes?

Plain-English summary

Petitioner is a New Jersey resident who regularly commutes to a job in New York City. In addition to his New Jersey home, he maintains a summer home in the Queens borough of New York City, which he occupies under a proprietary lease from a cooperative corporation that owns a summer beach community. Since 1961, the Cooperative's rules have barred use of any home for anything other than "summer occupancy" - defined as the five-month period from May 1 through September 30 - unless a shareholder applies for and receives permission, which requires certifying that the home has an approved, properly installed heating plant.

Petitioner's summer home previously had a heating system, but on or about October 5, 2010, he had it permanently removed by a licensed plumber, and the home has no electrical heating system either. After inspecting the property, the Cooperative formally notified Petitioner that his home could no longer be used for year-round residence and was limited to summer occupancy only under his proprietary lease. Petitioner in fact occupies the home only during the authorized summer period, mainly on summer weekends and holidays.

The question was whether this summer home counts as a "permanent place of abode" in New York, which matters because a nonresident individual who maintains a permanent place of abode in New York and spends more than 183 days in the state in a year is taxed as a "statutory resident" under Tax Law § 605(b)(1)(B). The regulations carve out a "camp or cottage" exception: a dwelling suitable and used only for vacations is not a permanent place of abode. A permanent place of abode must also be maintained for "substantially all of the taxable year" - which the Department interprets as more than 11 months.

The Department concluded that once the heating system was removed, the home was no longer suitable for year-round use, and the Cooperative's rules independently restricted it to a 5-month summer season. Because the heating system was removed around October 5, 2010, the home was not maintained as a permanent place of abode for substantially all of 2010. Consequently, even if Petitioner spent more than 183 days in New York State or City in 2010, he would not become a statutory resident on account of this summer home, because it fell under the camp-or-cottage exception rather than qualifying as a permanent place of abode.

What this means for you

If you maintain a seasonal or restricted-use home in New York

A dwelling that is physically incapable of year-round use (no functioning heating system) and legally restricted to a limited season by lease, co-op bylaws, or similar rules can qualify for the "camp or cottage" exception, so it does not count toward New York's statutory residency test - even if you spend well over 183 days a year in the state. The key facts here were the physical incapacity (heat permanently removed) and the independent legal restriction (Cooperative rules limiting use to May 1-September 30).

Timing matters for "substantially all of the taxable year"

The Department treats a permanent place of abode as one maintained for more than 11 months of the year. Removing a heating system partway through the year (here, on or about October 5) can be enough to take the home out of "permanent place of abode" status for that entire taxable year, not just for the remaining months.

Common questions

Q: What is the "camp or cottage" exception?
A: Under 20 NYCRR 105.20(e)(1), a mere camp or cottage that is suitable and used only for vacations is not considered a "permanent place of abode," even though the regulation's general definition of permanent place of abode is broad.

Q: Why did removing the heating system matter?
A: A permanent place of abode is generally understood as a dwelling suitable for year-round use. Once Petitioner had the heating system permanently removed around October 5, 2010, the home was no longer suitable for year-round occupancy, which supported treating it as a camp or cottage.

Q: Did the Cooperative's rules alone decide the outcome?
A: No - the Department relied on both the Cooperative's rules restricting occupancy to the May 1-September 30 summer period and the physical removal of the heating system. Either factor supported the conclusion, but the ruling is limited to these specific combined facts.

Q: Does this mean Petitioner owed no New York tax at all?
A: The ruling addresses only whether the summer home made Petitioner a statutory resident under Tax Law § 605(b)(1)(B). It does not address any New York tax that might otherwise apply to Petitioner's New York City employment income as a nonresident.

Citations and references

• Tax Law § 605(b)(1)(B) - defines a statutory resident as a nonresident who maintains a permanent place of abode in New York and spends more than 183 days in the state
• Administrative Code of the City of New York § 11-1705(b)(1)(B) - parallel statutory resident provision applicable to New York City resident income tax
• 20 NYCRR 105.20(e)(1) - "camp or cottage" exception: a dwelling suitable and used only for vacations is not a permanent place of abode
• 20 NYCRR 105.20(a)(2) - a permanent place of abode must be maintained for "substantially all of the taxable year"
• TSB-M-09(2)I - Department guidance interpreting "substantially all of the taxable year" as more than 11 months

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2011.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a11_5i.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Counsel
Advisory Opinion Unit

TSB-A-11(5)I
Income Tax
August 16, 2011

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I110517A

The Department of Taxation and Finance received a Petition for Advisory Opinion on behalf of
name redacted (Petitioner). The petition asks whether Petitioner’s summer home in New York City,
occupied under a proprietary lease from a cooperative corporation (Cooperative), falls under the “camp
or cottage” exception to the “permanent place of abode” definition contained in the personal income
tax regulations.
We conclude that under the facts specific to this taxpayer, the summer home falls under the
exception.
Facts
Petitioner is a resident of New Jersey and regularly commutes to his job in New York City
from his home in New Jersey. In addition to his New Jersey home, Petitioner maintains a summer
home located in the Queens borough of New York City. He occupies the home pursuant to a
proprietary lease from a Cooperative that owns real property in a summer beach community. All
shareholders of the Cooperative are required to maintain and occupy their homes in accordance with
the rules and regulations promulgated by the Board of Directors, pursuant to the by-laws. Violation of
those rules and regulations can result in the cancellation of the member’s proprietary lease, thereby
terminating the shareholder’s ownership interest in the property. Since 1961, the Cooperative’s rules
have provided that:
No house covered by a proprietary lease may be used for other than summer occupancy,
without the written consent of and subject to such conditions as the Board of Director’s
(sic) may impose.
“Summer occupancy” is defined as the five-month period from May 1 through September 30. The
Board requires that a shareholder who wishes to occupy a home other than for summer occupancy
must file an application with the Cooperative and certify that the home contains, among other things,
“an approved heating plant capable of supplying heat to the entire house, properly installed by a
licensed plumber and/or electrician.”
Although Petitioner’s summer home previously had a heating system, on or about October 5,
2010, Petitioner had the heating system permanently removed by a licensed plumber. The home does
not contain an electrical heating system. Following an inspection, the Cooperative formally advised
Petitioner that his “home may no longer be used for all year residence…and is limited pursuant to your
Proprietary Lease…to ‘summer occupancy’ only.” Petitioner occupies his summer home only during
the authorized summer occupancy period, principally on summer weekends and holidays.

-2-

TSB-A-11(5)I
Income Tax
August 16, 2011

Analysis
Tax Law §605(b)(1)(B)1 provides that a resident individual is one “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.” Although the statute does not define
“permanent place of abode,” the regulations suggest that a permanent place of abode is a dwelling
suitable for year-round use.
A permanent place of abode means a dwelling place of a permanent nature maintained
by the taxpayer, whether or not owned by such taxpayer…. However a mere camp or
cottage which is suitable and used only for vacations is not a permanent place of abode.2
In addition, “a permanent place of abode” is one maintained by a taxpayer for “substantially all of the
taxable year.”3 As a general rule, the Department has interpreted “substantially all of the taxable year”
as more than 11 months during the year.4
When the heating system was removed, the summer home was no longer suitable for yearround use, and its use was subsequently restricted by the Cooperative rules to a 5-month summer
period. Because the heating system in Petitioner’s home was removed on or about October 5, 2010,
the home was not maintained as a “permanent place of abode” for “substantially all of the taxable
year.”5 Thus, even if Petitioner spent in the aggregate more than 183 days in New York State or New
York City in 2010, Petitioner should not be considered a statutory resident of the State or City by
virtue of his proprietary lease of the summer home described in the petition, because the home did not
qualify as a “permanent place of abode” for substantially all of 2010.

DATED: August 16, 2011

NOTE:

/S/
DEBORAH R. LIEBMAN
Deputy Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the facts
set forth therein and is binding on the Department only with respect to the person or entity
to whom it is issued and only if the person or entity fully and accurately describes all
relevant facts. An Advisory Opinion is based on the law, regulations, and Department
policies in effect as of the date the Opinion is issued or for the specific time period at issue
in the Opinion.

1

References to New York Tax Law §605(b)(1)(B), applicable to the New York State resident income tax, also apply to
Administrative Code of the City of New York §11-1705(b)(1)(B), applicable to the New York City resident income tax.

2

20 NYCRR 105.20(e)(1).
20 NYCRR 105.20(a)(2).
4
TSB-M-09(2)I.
5
20 NYCRR 105.20(a)(2).
3