If my spouse rents a New York City apartment in her own name, pays for it herself, and I never use it or have a key to it, does that apartment make me a New York City statutory resident even though I also work in NYC and spend more than 183 days a year there?

Plain-English summary

Petitioner, Richard A. Eisner & Company, LLP, asked the Department to rule on behalf of a married couple. The taxpayer and his spouse own a home outside New York City, are domiciled outside New York City, and their child lives with them and attends school there. Both spouses work full-time in New York City, and each of them individually spends more than 183 days a year in the City. Neither currently owns nor rents a New York City residence.

The spouse expected to take a new job that would require her to have a New York City residence (not necessarily her principal residence or domicile). She planned to rent a one-bedroom New York City apartment in her own name, pay the rent with her own funds, sleep there some or all weeknights, and return to the couple's home outside the City on weekends. Because she would maintain that apartment and spend more than 183 days a year in the City, the Petitioner concluded - and the Department did not dispute - that she would be a New York City statutory resident under NYC Administrative Code § 11-1705(b)(1)(B).

The real question was about the taxpayer (the husband). He, too, works full-time in New York City and spends more than 183 days a year there, satisfying the day-count part of the statutory residency test. But every night he returns to the couple's home outside the City. He does not intend ever to be present in his wife's New York City apartment - which is in a different borough than his own workplace - does not intend to have a key to it, and will not contribute any money toward maintaining it. The apartment will be maintained and used exclusively by his wife.

The Department held that, on these facts, the apartment is not a "permanent place of abode" for the husband, so he is not a New York City statutory resident, even though he independently meets the domicile and 183-day conditions. The Department reasoned by contrast with People ex rel Mackall v Bates, 278 AD 724 (3d Dept 1951), where a husband who moved to Washington, D.C. for work was still found to "maintain" a New York apartment his wife took over, because the apartment remained accessible to him and he kept making financial contributions to her support. Here the facts run the other way: the wife alone rents and pays for the apartment and uses it exclusively; the husband neither uses it (no access, no key, no intent to be present) nor pays anything toward it. Because he has neither the use nor the financial contribution that made the Mackall apartment "his," the Department concluded the apartment is not a permanent place of abode for him - provided those facts hold true.

What this means for you

Dual-career couples keeping a home outside NYC while one spouse also rents in the City

Simply having a spouse who rents and lives in a New York City apartment does not, by itself, make you a New York City statutory resident, even if you separately work in the City and spend more than 183 days a year there. What matters is your own connection to that specific apartment. If you never use it, never have access to it (no key, no intent to be present), and never contribute money toward its rent or upkeep, the Department's own residency audit guidelines treat it as not being your permanent place of abode - it belongs, for tax purposes, only to the spouse who maintains and uses it. But this is a facts-and-circumstances determination: any use of the apartment, any key, or any financial contribution can change the answer.

Accountants and tax professionals evaluating statutory-residency exposure for spouses with separate NYC households

When advising a couple where only one spouse maintains a New York City residence, don't assume the other spouse is automatically shielded from statutory residency just because the lease and the checkbook belong solely to the resident spouse. Confirm and document, for the non-resident spouse specifically: (1) no use of the apartment (no overnight stays, no personal belongings kept there, no intent to be present); (2) no access (no key, no ability to enter); and (3) no financial contribution to rent, utilities, or other carrying costs. This ruling and Mackall together show that either continued access or continued financial support can be enough, standing alone, to make a residence maintained by one spouse also "maintained" by the other for statutory-residency purposes - so all three factors need to be clean, not just one.

Common questions

Q: Does the husband's own 183-plus days in New York City and his New York City job automatically make him a statutory resident?
A: No. The 183-day threshold is only one of the two conditions in NYC Administrative Code § 11-1705(b)(1)(B). He also independently satisfies the "not domiciled in NYC" prong (he's domiciled outside the City), but the Department found he does not maintain a permanent place of abode in the City - the third required element - so he is not a statutory resident despite meeting the day count.

Q: How is this different from People ex rel Mackall v Bates?
A: In Mackall, the husband moved away for work and his wife took over their joint New York apartment, but the apartment stayed accessible to him and he kept contributing financially to her support - so the court found he still "maintained" a permanent place of abode there. Here, the facts are the mirror image: the wife rents a brand-new apartment in her own name that the couple never shared, the husband has no access to it (no key, no intent to be present), and he contributes no money toward it. Because he lacks both the access and the financial contribution that were present in Mackall, the apartment is not his permanent place of abode.

Q: Would the answer change if the husband occasionally stayed overnight in his wife's apartment?
A: The ruling is expressly conditioned on the stated facts - that the taxpayer does not intend ever to be present in the apartment. Any actual use of it, even occasional, is not what the Department analyzed, and by the reasoning in Mackall, use (or access, or a financial contribution) is exactly what can turn a spouse's residence into your own permanent place of abode.

Q: Would splitting the rent, even informally, change the outcome?
A: Likely yes. The Department's holding rests on the husband providing no financial contribution to the maintenance of his wife's apartment. Any contribution toward rent or other carrying costs would undercut the basis for the ruling, consistent with how financial support was one of the two factors that established statutory residency in Mackall.

Q: Is the wife's own statutory-residency conclusion also part of this ruling's holding?
A: The Petitioner separately concluded, and the Department did not dispute, that the wife would be a New York City statutory resident because she personally maintains the apartment (renting it in her own name and paying for it herself) and spends more than 183 days a year in the City. The Department's actual ruling addresses only the husband's status.

Q: Does maintaining a home outside New York City matter to this analysis?
A: It establishes that neither spouse is domiciled in New York City, which is a separate, independently required element of the statutory residency test. But domicile outside the City doesn't resolve the permanent-place-of-abode question for the husband - that depends on his own use of and financial connection to the New York City apartment, not on where the couple's domicile happens to be.

Citations and references

• NYC Administrative Code § 11-1705(b)(1)(B) - defines a New York City resident individual, in part, as one not domiciled in the City who maintains a permanent place of abode there and spends more than 183 days of the taxable year in the City
• Tax Law § 605(b) - the analogous New York State statutory residency test that the City provision mirrors
• People ex rel Mackall v Bates, 278 AD 724 (3d Dept 1951) - a spouse who moved away for work but retained access to, and made continuing financial contributions toward, an apartment his wife took over was still found to "maintain" a permanent place of abode there
• New York State Department of Taxation and Finance residency audit guidelines - a residence maintained by one individual but used exclusively by another is not deemed a permanent place of abode for the individual who merely maintains (pays for) it without using it

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1995.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a95_3i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-95 (3) I
Income Tax
February 23, 1995

Taxpayer Services Division
Technical Services Bureau
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I941006B

On October 6, 1994, a Petitioner for Advisory Opinion was received from
Richard A. Eisner & Company, LLP, 575 Madison Avenue, New York, New York 10022.
The issue raised by Petitioner, Richard A. Eisner & Company, LLP, is
whether, the taxpayer described herein, is a New York City resident individual
within the meaning of section ll-1705(b)(1)(B) of the New York City
Administrative Code.
Taxpayer and his spouse own a home outside of New York City and are
domiciled outside of New York City. Their child lives with them and attends
school in the community. Since both spouses are employed on a full-time basis,
they employ domestic help at their home. They do not currently own or rent a
residence in New York City, or in any way have a permanent place of abode in New
York City. Both taxpayer and his spouse work in New York City.
Taxpayer's spouse expects to obtain new employment requiring her to have
a New York City residence. Such residence need not be her principal residence
and there is no requirement that she be domiciled in New York City. She will
rent a one bedroom apartment in New York City in her own name and pay the rent
with her own funds. Generally, she will use the apartment for sleeping quarters
during some or all of the week and return to her home outside New York City for
weekends. The Petitioner states that since taxpayer's spouse will spend more
than 183 days in New York City during the taxable year. Since she will be
maintaining a permanent place of abode in New York City and spending more than
183 days of the year there, she will be deemed a statutory resident of New York
City, pursuant to section ll-1705(b)(1)(B) of the New York City Administrative
Code.
The taxpayer works on a full-time basis in New York City and spends more
than 183 days in New York City during the taxable year. However, each night,
after work, he returns to his home outside New York City and intends to continue
this lifestyle. He does not intend ever to be present in his wife's New York
City apartment, which is located in a different borough of New York City than his
employment. He does not even intend to have a key to his wife's apartment. The
apartment will be maintained and used exclusively by the taxpayer's spouse. The
taxpayer will not provide any financial contribution to the maintenance of his
wife's apartment.
The New York City personal income tax authorized under Article 30 of the
Tax Law is similar to the New York State personal income tax authorized under
Article 22 of the Tax Law and is administered by New York State in the same
manner as the New York State Personal Income Tax.
TP-9 (9/88)

-2­

TSB-A-95 (3) I
Income Tax
February 23, 1995

Section ll-1705(b)(1)(B) of the New York City Administrative Code defines
a residential individual, in part, as an individual who is not domiciled in New
York City, but maintains a permanent place of abode in New York City and spends
in the aggregate more than 183 days of the taxable year in New York City. This
is similar to Section 605(b) of the Tax law which defines a resident individual,
in part, as an individual who is not domiciled in this state but maintains a
permanent place of abode in this state and spends in the aggregate more than 183
days of the taxable year in New York State.
In People ex rel Mackall v Bates, 278 AD 724 (3rd Dept 1951), the
petitioner lived with his wife in an apartment in New York City. Petitioner moved
to Washington, D.C. when he took employment there. His wife remained in the New
York apartment and took over the rental of it, but the apartment remained
accessible to petitioner and he made continuous contributions to his wife's
general support. The Court agreed with the State Tax Commission that petitioner
"maintained" a permanent place of abode in New York while he worked in
Washington.
However, the Department of Taxation and Finance's residency audit
guidelines note that a residence maintained by one individual but used
exclusively by another should not be deemed a permanent place of abode for the
individual who maintains it.
Herein, the taxpayer's spouse will rent an apartment in her own name and
pay the rent with her own funds. The taxpayer will not provide any financial
contribution to the maintenance of his wife's apartment. The taxpayer states
that he does not intend to ever be present in such apartment and will not even
have a key to such apartment.
If the taxpayer does not, in fact, provide any financial contribution to
the maintenance of his wife's apartment and he does not use such apartment, such
apartment maintained and used exclusively by the taxpayer's wife is not a
permanent place of abode for the taxpayer. Accordingly, the taxpayerwould not
be a resident of New York City for purposes of the New York City personal income
tax under section ll-1705(b)(1)(B) of the New York City Administrative Code.

DATED: February 23, 1995

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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