New York Advisory Opinion TSB-H-81(2)I: Does buying a vacation home in New York make an out-of-state domiciliary a New York resident for personal income tax purposes?

Plain-English summary

Surasak Nimmannit, domiciled in New Jersey, was considering buying a vacation home in New York and asked the Department whether that purchase alone would make him a New York resident for personal income tax purposes.

Tax Law section 605 defines a "resident individual" to include someone who isn't domiciled in New York but who maintains a "permanent place of abode" in the state and spends more than 183 days of the tax year there (with an exception for active-duty military). The Personal Income Tax Regulations (20 NYCRR 102.2(e)) define a permanent place of abode as a dwelling place permanently maintained by the taxpayer - but specifically exclude "a mere camp or cottage which is suitable and used only for vacations."

The Department laid out two scenarios. If the home Nimmannit planned to buy amounted to a mere vacation camp or cottage, it wouldn't count as a permanent place of abode at all, so its purchase couldn't make him a resident regardless of how much time he spent there. If instead the home was substantial enough to qualify as a genuine permanent place of abode, purchasing it still wouldn't by itself make him a resident - residency would only follow if he also spent more than 183 days of the tax year in New York. Absent that day-count threshold, he would remain a nonresident, taxable only on income connected to New York sources under section 632.

What this means for you

Out-of-state residents considering a New York vacation home

Simply owning a New York vacation home doesn't automatically make you a New York tax resident - what matters is (1) whether the home is substantial enough to be a "permanent place of abode" rather than a mere vacation camp or cottage, and (2) if it is, whether you also spend more than 183 days of the year in New York.

Homeowners trying to stay a nonresident

Track your days in New York carefully if your vacation home could be considered a permanent place of abode - crossing the 183-day threshold, combined with maintaining that home, is what triggers statutory residency, not the purchase itself.

Accountants advising multi-state clients with a New York property

Evaluate the nature of the property first (mere vacation cottage vs. a genuine permanent dwelling) before even reaching the day-count analysis, since a true vacation-only camp or cottage is categorically excluded from the "permanent place of abode" test.

Common questions

Q: If I buy a vacation home in New York, am I automatically a New York resident for income tax?
A: No - buying the home alone doesn't make you a resident. You'd also need the home to qualify as a "permanent place of abode" (not a mere vacation camp or cottage) and to spend more than 183 days of the tax year in New York.

Q: What's the difference between a "mere camp or cottage" and a "permanent place of abode"?
A: The regulations exclude a dwelling that is suitable and used only for vacations from counting as a permanent place of abode; a more substantial dwelling capable of year-round use can count, even if it isn't your primary or only home.

Q: If I don't become a statutory resident, am I taxed on nothing in New York?
A: You'd still be taxed as a nonresident on any income actually derived from or connected with New York sources, even without triggering full resident status.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1981.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/h81_2i.pdf

Original ruling text

New York State Department of Taxation and Finance
TSB-H-81-(2)-I
Income Tax
March 6, 1981

Taxpayer Services Division
Technical Services Bureau
STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. I801030B

On October 30, 1980 a Petition for Advisory Opinion was received from
Surasak Nimmannit, 575 Grove Street, Wayne, New Jersey 07015.
The issue raised is whether a domiciliary of another state would become a
resident of New York for purposes of the Personal Income Tax imposed under
Article 22 of the Tax Law by virtue of the purchase of a vacation home in New
York.
Section 605 of the Tax Law, contained in Article 22 thereof, defines the
term "resident individual," in relevant part, as "...an individual...(2) 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." The Personal Income Tax Regulations define
the term "permanent place of abode," in relevant part, as follows: "A permanent
place of abode means a dwelling place permanently maintained by the taxpayer.
whether or not owned by him, and will generally include a dwelling place owned
or leased by his or her spouse. However, a mere camp or cottage which is suitable
and used only for vacations, is not a permanent place of abode." 20NYCRR
l02.2(e).
If the vacation home to be purchased by Petitioner constitutes "a mere camp
or cottage, which is suitable and used only for vacations," its purchase would
not render Petitioner a resident of New York for purposes of the Personal Income
Tax. If the home is more substantial in nature and does constitute a permanent
place of abode, its purchase could not by itself render the Petitioner a resident
for purposes of the Personal Income Tax. However, if Petitioner purchases such
a permanent place of abode and in addition spends "in the aggregate more than one
hundred eighty-three days of the taxable year in this state" he would become a
resident subject to tax as such under the Personal Income Tax. It is to be noted
that an individual who is a nonresident is subject to the Personal Income Tax
with respect to income derived from or connected with New York sources. Tax Law,
§§ 632.

DATED: January 19,1981

TP-8 (4/80)

s/LOUIS ETLINGER
Deputy Director
Technical Services Bureau

JAMES H. TULLY, JR., COMMISSIONER
LOUIS M. JACOBSON, DEPUTY COMMISSIONER
FRANK J. PUCCIA, DIRECTOR