For New York's 548-day rule, until what age is a domiciliary's child treated as a 'minor' whose New York presence counts against the 90-day limit?

Plain-English summary

A U.S. citizen domiciled in New York planned to work overseas for several years with his wife and children. Under New York's "548-day rule," a domiciliary who spends at least 450 days in a foreign country during any 548 consecutive days, and who (along with a non-separated spouse and any minor children) is present in New York no more than 90 days during that same period, will not be treated as a New York resident for personal income tax purposes even though still domiciled here. The Petitioner expected he and his wife would be part-year residents in 2011 and nonresidents in 2012 if these tests were met.

The Petitioner asked how the Department would define "minor" for purposes of the 90-day presence test in Tax Law § 605(b)(1)(A)(ii) - specifically, whether his children's presence in New York would count against the family's 90-day limit only while they were legally minors, or for some other period.

The Department answered by pointing to a separate, general definition provision: Tax Law § 2(4) defines "minor" as a person who has not yet turned eighteen. Applying that definition, the Department concluded that only the days a child spends in New York while under age 18 count toward the 90-day limitation during the 548-day period. Once a child turns 18, that child's presence in New York during the remainder of the 548-day period no longer counts against the family's 90-day cap - the child is simply no longer a "minor" for purposes of the rule.

What this means for you

New York domiciliaries planning extended overseas work

If you're relying on the 548-day rule to avoid New York resident tax treatment while working abroad, remember that your spouse's and minor children's days present in New York also count against the shared 90-day limit for the 548-day period. Track each child's presence separately, and stop counting a child's New York days toward that limit once the child turns eighteen.

Accountants and tax professionals

When computing the 90-day threshold under Tax Law § 605(b)(1)(A)(ii) for a client using the 548-day rule, apply the general Tax Law § 2(4) definition of "minor" (under age 18) rather than any other age threshold (such as the age of majority for other legal purposes). A child who turns 18 partway through the 548-day period stops being counted as a "minor" for the remainder of that period.

Common questions

Q: What is the 548-day rule?
A: It is an exception under Tax Law § 605(b)(1)(A)(ii) that lets a New York domiciliary avoid resident tax treatment if the taxpayer is in a foreign country at least 450 days during any 548 consecutive days, the taxpayer/spouse/minor children spend no more than 90 days in New York during that period, and a related proportional day-count limit is met in the taxable years the 548-day period begins and ends.

Q: How does New York define "minor" for this rule?
A: Tax Law § 2(4) defines a minor as a person who has not attained the age of eighteen years. The Department applied that same definition to the 548-day rule's 90-day limitation.

Q: Do a child's days in New York count toward the 90-day limit after the child turns 18?
A: No. Once a child reaches age 18, that child is no longer a "minor," so the child's presence in New York during the rest of the 548-day period is not counted against the family's 90-day limit.

Q: Does the 548-day rule change whether the taxpayer is domiciled in New York?
A: No. The taxpayer remains a New York domiciliary; the rule simply prevents that domiciliary from being taxed as a resident if all of its conditions - including the 90-day presence limit - are satisfied.

Citations and references

• Tax Law § 605(b)(1) - defines resident, nonresident, and part-year resident for New York personal income tax purposes
• Tax Law § 605(b)(1)(A)(ii) - the 548-day rule exception allowing a domiciliary working abroad to avoid resident treatment
• Tax Law § 2(4) - defines "minor" as a person who has not attained the age of eighteen years
• 20 NYCRR § 105.20(b)(2) - the statutory residence test referenced alongside the domicile test

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2012.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a12_5i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-12(5)I
Income Tax
September 27, 2012

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I111025C

The Department of Taxation and Finance received a Petition for Advisory Opinion from
name redacted. Petitioner asks whether his children will be considered minors for purposes of
computing the 548-day rule under the Tax Law described below. We conclude that a child will
be considered a minor for purposes of computing the 548-day rule until the child is eighteen
years of age.
Facts
Petitioner is a United States citizen domiciled in New York. Petitioner plans to work
overseas for several years. He and his wife will be considered part-year residents of New York
in 2011, and non-residents in 2012, if they spend 450 days in a foreign country during a 548-day
period and spend 90 days (or part days) or less in New York State during this 548-day period.
Petitioner asks whether his children will be considered “minors” for the purpose of Tax Law §
605(b)(1)(A)(ii).
Analysis
Tax Law § 605(b)(1) provides the definitions of a resident, nonresident and part-year
resident for purposes of taxation. Generally, an individual will be taxed as a resident if they are
either: 1) domiciled in New York, or 2) meet the statutory residence test. Tax Law § 605(b)(1)
and 20 NYCRR § 105.20(b)(2). However, the Tax Law contains exceptions where a domiciliary
will not be treated as a resident for New York state income tax purposes.
One exception, known as the 548-day rule, provides that a domiciliary will not be treated
as a resident for New York personal income tax purposes upon meeting three separate
requirements. The requirements are (1) the taxpayer is in a foreign country for at least 450 days
during any period of 548 consecutive days; (2) during the 548-day period the taxpayer, the
taxpayer’s spouse (unless the taxpayer is legally separated) and the taxpayer’s minor children are
not present in the State for more than ninety days; and 3) during the nonresident portion of the
taxable year in which the 548-day period begins, and during the nonresident portion of the
taxable year in which the 548-day period ends, the taxpayer is present in New York State for no
more than the number of days which bears the same ratio to 90 as the number of days in such
portion of the taxable year bears to 548. Tax Law § 605(b)(1)(A)(ii).
In the opinion request you asked how the term “minor” is defined for purposes of
calculating requirement 2 of the 548-day rule exception above. The term “minor” is defined as a
person who has not attained the age of eighteen years. Tax Law § 2(4). Therefore, for purposes

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TSB-A-12(5)I
Income Tax
September 27, 2012

of determining whether Petitioner’s children are present in the State more than 90 days during
the 548-day limitation period referred to above, each day that Petitioner’s children are present in
New York and under the age of 18 during this 548-day time period will be counted.

DATED: September 27, 2012

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. The information provided in this
document does not cover every situation and is not intended to replace the law or
change its meaning.