How does New York count workdays when allocating a nonresident's wages?

The formula, the two lists, and the gap in the middle

The discipline that survives audit is two schedules, kept separately, because they answer two different legal questions. The first lists every day with any physical presence in New York at all, however brief, since presence for any part of a calendar day counts, a same-day arrival and departure included, apart from the regulation's travel-through exception (20 NYCRR 105.20(c); Matter of Leach v. Chu, 150 AD2d 842 (3d Dept 1989); Matter of Zanetti v. New York State Tax Appeals Tribunal, 128 AD3d 1131 (3d Dept 2015)). That list feeds the statutory-residency day test, a test that matters whenever the taxpayer maintains a permanent place of abode in New York (20 NYCRR 105.20(c)). The second schedule lists where each day's work was performed, which feeds the wage-allocation fraction, and the two schedules will legitimately disagree. A day can appear on the presence list and still stay out of the fraction's numerator: a weekend day spent in the city without working is a nonworking day excluded from the fraction altogether, and an evening arrival after a full day worked elsewhere is a day worked outside New York (20 NYCRR 132.18(a) and Example 2). The pass-through day follows the regulation's own examples: it is not a New York workday, but it remains in the denominator as a day worked outside New York, while the residency count may disregard the presence entirely (20 NYCRR 132.18, Examples 1 and 2; 20 NYCRR 105.20(c)). Dropping the pass-through day from the fraction, rather than keeping it in the denominator, shrinks the day count and overstates the New York share. Building both lists from the start prevents the audit-stage disaster of a single day count doing double duty for tests it does not fit.

Inside the second list sits the one question the statute and regulation leave open: how to count a day worked partly in New York and partly elsewhere. The Department's Nonresident Allocation Guidelines fill the gap. A nonresident employee who wishes to apportion wage income on the basis of hours or fractions of a day worked within and without the state may do so, provided the taxpayer can document the hours or fractions of a day worked in each place, and the Guidelines accept half days or quarter days as the unit (Nonresident Allocation Guidelines (rev. June 13, 2013), Section III.B). The Department's advisory opinion practice reads the regulation the same way, requiring a taxpayer whose work divides across state lines to allocate wages to New York on both a full-day and a part-day basis (TSB-A-04(2)I). The method has a boundary: some work must be performed both within and without New York on the same day, so a day whose only work was two hours in New York is a full New York workday, not a quarter day. And the guidance does not say how an undocumented split day is counted, which makes the documentation the whole game. In the firm's experience, fractional allocation across a handful of mixed days often saves less than the documentation and the argument cost, and the cleaner architecture, where the schedule allows, is unambiguous days: the out-of-state day starts out of state, and the calendar does the arguing. That is a judgment about cost, not a limit in the law; the taxpayer with documented hours is entitled to the fraction.

A related rule covers the travel itself. A day spent in travel status at the employer's direction is a working day even if it falls on a Saturday, Sunday, or other usual nonworking day, and it is a New York day only if services were performed in New York (20 NYCRR 132.18, Example 2; Nonresident Allocation Guidelines (rev. June 13, 2013), Section III). The regulation's second example applies the rule directly, counting a Sunday spent passing through New York to board a plane as a day worked outside New York.

The convenience rule, and the day worked at home

The allocation fraction assigns days by where services are performed, with one large exception. Under the convenience-of-the-employer doctrine, a nonresident whose assigned office is in New York and who works a day at an out-of-state home counts that day as a New York day unless the remote work was performed out of the necessity of the employer, a standard the Department polices through the bona fide employer office analysis rather than through the employee's preferences, however reasonable. The doctrine sits in the regulation itself (20 NYCRR 132.18(a)) and survived constitutional challenge in Matter of Zelinsky v. Tax Appeals Tribunal, 1 N.Y.3d 85 (2003), and Matter of Huckaby v. New York State Division of Tax Appeals, 4 N.Y.3d 427 (2005). In 2026 the Appellate Division, Third Department, confirmed the Tax Appeals Tribunal's application of the rule to a Connecticut resident's 2019 and 2020 remote work for a New York law school. The court found that the Tribunal rationally concluded that, although an executive order required the school to implement remote instruction, it did not require the professor to teach from Connecticut, and the court also rejected dormant Commerce Clause and due process challenges (Matter of Zelinsky v. Commissioner of Taxation & Finance, 2026 NY Slip Op 04251 (3d Dept July 2, 2026)). The taxpayers have appealed to the Court of Appeals (No. APL-2026-00107), where the appeal was pending as of October 9, 2026. The Tax Appeals Tribunal reached the same result for a Pennsylvania resident whose New York employer voluntarily closed its New York office in March 2020, holding that an employer permitting employees to work from home is not a necessity (Matter of Myers, DTA No. 850197 (Tax Appeals Tribunal Oct. 14, 2025)), and administrative law judges have sustained the rule where 2020 remote work was permitted but not obligatory (Matter of Struckle, DTA No. 830731 (ALJ Aug. 8, 2024)) and where a taxpayer who moved to Florida in 2021 kept a New York assigned office and a home office that did not qualify as a bona fide employer office (Matter of Snyder, DTA No. 831118 (ALJ June 25, 2026)).

The Department's operative statement of the bona fide employer office test is TSB-M-06(5)I, and the same memorandum defines the day being fought over. A normal work day means any day the taxpayer performed the usual duties of the job, and a day at home on which the employee only answers occasional calls or emails, reads professional journals, or is available if needed is not a normal work day; it is treated as a nonworking day and drops out of the fraction entirely (TSB-M-06(5)I). For the executive who moved away and commutes back, the doctrine is the trap that swallows the move's expected tax result: the days worked in the New York office are New York days, the days worked on the road are allocated where worked, and the days worked from the new home state risk being New York days anyway, unless the employer-necessity facts are built and documented deliberately, an employer-established office at or near the new location, functions that cannot be performed in New York, or the other indicia the Department's memorandum credits. Any planning conversation about leaving New York while keeping New York employment should price the convenience rule first, because it operates independently of the domicile fight covered in the companion article and, as Snyder illustrates, survives even a cleanly won change of residency.

Proving the calendar

Allocation audits are records contests, and the records that tend to decide them are the contemporaneous ones: calendars, flight itineraries and boarding records, expense reports with their geographic trail, and, where an assistant maintains the executive's schedule, the assistant's logs, a record kept by someone else for a purpose other than tax. A reconstruction that begins after the audit letter arrives and assembles two years of days from calendars, travel records, and card statements can be persuasive, but it is expensive and always incomplete, and every ambiguous day resolves against the taxpayer who bears the burden. The inexpensive version is prospective: a running day log kept as the year happens, reconciled quarterly against travel records, with the split days documented by hours or by half or quarter days while memory is fresh and the pass-through days annotated with the records that prove the through-ness. And because wage allocation and residency travel together, the same evidentiary base serves both inquiries, which is one more reason the two-schedule structure should be the standing format rather than an audit-time improvisation.

Practice notes

The intake questions for any multistate executive are the fraction's inputs: the assigned office, where each day was worked, the home-office pattern, and the records that exist for each of them, calendars, flights, logs, and expenses. The sound architecture keeps the two schedules from day one, documents split days by hours or by half or quarter days as the Department's guidance permits rather than leaving them to after-the-fact characterization, supports pass-through and travel days with the itineraries and boarding records that prove them, and treats home-state workdays as presumptively contested until the employer-necessity record supports them. On the audit itself, the stronger response presents the fraction as a computed exhibit, day counts, sources, and the handful of judgment calls flagged and defended; in the firm's experience, an allocation the examiner can audit from the taxpayer's own workpapers fares better than one the Department must rebuild from the same records, with none of the taxpayer's judgment calls going the taxpayer's way. G&G State Tax Group provides nonresident wage allocation analysis and New York residency and allocation audit representation alongside its state and local tax practice.