When does an apartment make a nonresident a New York statutory resident?

The test, and the abode in brief

Tax Law section 605(b)(1) defines a resident two ways: subparagraph (A) covers the domiciliary, subject to two exceptions discussed below, and subparagraph (B) covers anyone who maintains a New York abode and spends more than 183 days in the state. The closing words of (B), "whether or not domiciled in this state for any portion of the taxable year," make the test indifferent to where the taxpayer's true home is. The test is mechanical: no closest-connection weighing rebuts it, and a taxpayer with a clean domicile record elsewhere is a resident anyway once the elements are met. The arithmetic is "more than" 183, so the 184th day is the one that matters, which is how the Tax Appeals Tribunal framed the burden in Matter of Zanetti (DTA No. 824337, Feb. 13, 2014): proof of "fewer than 184 days within New York."

The abode element has its own law, and the library's article on how New York decides whether someone has left treats it in depth. In summary, a permanent place of abode is "a dwelling place of a permanent nature maintained by the taxpayer, whether or not owned by such taxpayer," generally including a dwelling owned or leased by the taxpayer's spouse and excluding a camp or cottage suitable and used only for vacations (20 NYCRR 105.20(e)(1)); the taxpayer must also have a residential interest in it, with "some basis to conclude that the dwelling was utilized as the taxpayer's residence" (Matter of Gaied v. New York State Tax Appeals Tribunal, 22 NY3d 592 (2014)). A corporate apartment counts if maintained primarily for the taxpayer's or the family's use, but not one the employer allocates among many users on a first-come, first-served basis (TB-IT-690). The duration element and the Department's month-count convention for it are covered in the same companion article. Nothing requires the abode and the days to coincide: both need only be "in this state," so a weekend house upstate and workdays in a Manhattan office feed one count.

What counts as a day

The regulation's rule is that "presence within New York State for any part of a calendar day constitutes a day spent within New York State," except that presence "may be disregarded if such presence is solely for the purpose of boarding a plane, ship, train or bus for travel to a destination outside New York State, or while traveling through New York State to a destination outside New York State" (20 NYCRR 105.20(c)). In Matter of Zanetti v. New York State Tax Appeals Tribunal, 128 AD3d 1131 (3d Dept 2015), a taxpayer with homes in Florida and New York had 167 full New York days and 26 more on which he arrived or departed by private jet. The court rejected a midnight-to-midnight definition of a day, quoting the holding in Matter of Leach v. Chu, 150 AD2d 842, 844 (1989), that the any-part rule is not "irrational or unreasonable," and noting that a 24-hour rule "could ostensibly be manipulated by a person arriving shortly after midnight." The Tribunal below had held that "the travel exception does not exempt any day at issue." The exception covers transit through New York to somewhere else; a day on which the taxpayer arrives in or leaves New York, rather than passing through it, is a New York day.

The only other exception is not in the regulation. It comes from Matter of Stranahan v. New York State Tax Commission, 68 AD2d 250, as the Department applies it in its advisory opinions: time a nondomiciliary spends in a New York medical facility for treatment of a serious illness is not counted. The Department applied the rule to a New Jersey domiciliary admitted to a Bronx nursing home after a stroke, concluding that "any day spent in such facility would not count as a day in New York for purposes of the 183 day rule" (TSB-A-91(10)I), and to a Virginia domiciliary placed in New York care facilities after becoming incompetent (TSB-A-00(3)I). Both opinions involved confinement and rested in part on incapacity, and both are limited to their facts. Neither addresses outpatient treatment or days spent at a New York hospital with a family member, and because the regulation admits only the travel exception, the working assumption is that those days count.

Three fact patterns show how fast the count fills. A New Jersey or Connecticut domiciliary who keeps a Manhattan apartment for late nights and works in the city four days a week reaches about 190 New York days from office days alone, before any weekend evening in town. A Connecticut resident who works in Connecticut but owns a year-round house in the Hudson Valley adds every weekend there, the Friday evening arrival and the Sunday departure included. An executive sent from abroad to run a New York office for a fixed term counts every day from arrival. The first two cases turn on whether the dwelling carries a residential interest; the third turns on duration, which the city cases below address.

Proving the count

The regulation puts the duty on the taxpayer: a nondomiciliary who maintains a New York abode and claims to be a nonresident "must keep and have available for examination by the Department of Taxation and Finance adequate records to substantiate the fact that such person did not spend more than 183 days of such taxable year within New York State" (20 NYCRR 105.20(c)). The burden of proof is on the petitioner (Tax Law section 689(e)), and the Tribunal requires proof "by clear and convincing evidence" that the taxpayer was not in New York on the claimed days (Matter of Varzar, DTA No. 824044 (Tax Appeals Tribunal Apr. 2, 2015); Matter of Ruderman, DTA No. 826242 (Tax Appeals Tribunal June 15, 2017)).

The decisions show what fails. In Varzar, the taxpayer "offered no diary, credit card records or phone records as evidence of her whereabouts on any specific days." In Ruderman, a Florida domiciliary with a New York apartment and office, the Division of Taxation treated 38 days it could not place as New York days "for lack of substantiation of petitioner's whereabouts elsewhere." The taxpayer's claim to 78 more days away rested on date ranges, dental records and seven affidavits, against credit card charges in New York on days he said he was away and calls from his New York telephones on over 200 days; a diary his assistant reportedly kept was never produced. The Appellate Division confirmed: "it is the taxpayer's burden to establish that he or she was not a statutory resident," the affidavits "suffered from a general lack of detail," and because his travel followed no particular pattern, the court could not "infer his presence outside New York on any given dates based upon a pattern of conduct" (Matter of Ruderman v. Tax Appeals Tribunal of the State of New York, 170 AD3d 1442 (3d Dept 2019)).

The Department's Nonresident Audit Guidelines (December 2021) describe the records auditors use to place a taxpayer, in their discussion of the time factor in a domicile audit: a diary, appointment log, or calendar, tested by random checks; credit card receipts and phone bills to substantiate entries or replace a missing diary; and the taxpayer's own out-of-state documentation, which the auditor is to review equally with third-party records (pp. 21 to 22). The same pages warn of "false" indicators such as "credit card purchases in New York by children, phone calls by housekeepers" (p. 22), and they excuse a day-by-day accounting only "if the audit is focused on domicile" and patterns are established (p. 21). That qualifier is the point. In a statutory residency case each disputed day is its own contest, and Ruderman shows that a pattern helps only where the travel had one. The records that hold up are made at the time, for a purpose other than tax, and place the taxpayer, not merely a card or a phone, outside New York on a specific date.

The city test, and the executive on assignment

New York City applies the same test to its own geography: a city resident includes one who "maintains a permanent place of abode in such city and spends in the aggregate more than one hundred eighty-three days of the taxable year in such city," whether or not domiciled there (Tax Law section 1305(a)(2)). The Tribunal treats the State and City definitions as identical "with the exception of the use of the term 'state' or 'city'" (Matter of Glynn, DTA No. 830170 (Tax Appeals Tribunal June 29, 2023), citing N.Y.C. Admin. Code section 11-1705(b)(1)). A Westchester domiciliary is a State resident by domicile but a City resident only if a city abode and more than 183 city days line up, while a New Jersey domiciliary whose only New York abode is a house in the Catskills can be a State statutory resident without becoming a City resident.

The spouse rule meets its limit in the city cases. Where a couple domiciled outside the city both worked in Manhattan and the wife alone leased a city apartment, in her name and with her own funds, the Department concluded it would not be the husband's abode if he made no financial contribution, did not use it, and held no key, even though he spent more than 183 days in the city and went home each night (TSB-A-95(3)I, applying N.Y.C. Admin. Code section 11-1705(b)(1)(B)). Those conditions are the facts a couple in that position must be able to prove.

The executive on assignment has fared poorly. In Glynn, an executive domiciled outside the country leased a Manhattan apartment for a fixed-term assignment, occupied it alone, paid its utilities, and spent 274 days in the city; the Tribunal sustained City statutory residency. The administrative law judge found "no legal support" for the temporary-assignment argument, noting that "effective December 24, 2008, 20 NYCRR 105.20 (e) (1) had deleted a reference to traveling to New York on a temporary basis to accomplish a particular purpose," a repeal the Department confirmed for tax years ending on or after December 31, 2008 (TSB-M-09(15)I). In Matter of Mays, DTA No. 826546 (Tax Appeals Tribunal Dec. 21, 2017), a relocated executive lived first in furnished housing found through her employer's relocation arrangements, without a lease, and then in an apartment leased by her fiance; the Tribunal found the two periods, "eleven months, three days in aggregate," to be substantially all of the year and held her a statutory resident of the State and City. For an assignment that begins early in a year, housing the executive has exclusive use of can count toward the duration element from arrival, whether or not the executive holds a lease.

The exceptions, and the 548-day mirror

The regulation states one categorical exception. A dwelling "maintained by a full-time student enrolled at an institution of higher education ... in an undergraduate degree program leading to a baccalaureate degree, and occupied by the student while attending the institution is not a permanent place of abode with respect to that student," full-time meaning at least 12 credit hours per semester for at least two semesters, or the equivalent, during the year (20 NYCRR 105.20(e)(1)). The exception applies for tax years ending on or after December 31, 2009, and "does not provide an exception for graduate students pursuing a post-baccalaureate degree" (TSB-M-09(15)I).

The exception for a residence maintained by one individual and used by another is not in the regulation's text. It is the Department's position 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" (TSB-A-95(3)I, attributing it to the Department's residency audit guidelines). A parent paying for an apartment occupied only by an adult child is the usual fit. Gaied supplies the legal footing: the taxpayer paid the utilities on an apartment where his elderly parents lived, had keys, and occasionally stayed overnight to attend to them, and the Court of Appeals still held that maintenance without a residential interest is not an abode. The word "exclusively" is where audits turn: a parent who keeps a bedroom, clothing, or a habit of staying over has supplied the residential interest the exception assumes is absent.

The 548-day rule is the mirror case, letting a New York domiciliary be taxed as a nonresident. A domiciliary is not a resident if, "within any period of five hundred forty-eight consecutive days the taxpayer is present in a foreign country or countries for at least four hundred fifty days," the taxpayer, spouse (unless legally separated) and minor children are not in New York more than ninety days during that period, and New York days in the partial years at each end stay within a prorated share of ninety (Tax Law section 605(b)(1)(A)(ii)). A second exception covers a domiciliary with no New York abode, an abode elsewhere, and no more than thirty New York days (Tax Law section 605(b)(1)(A)(i)), and the City has both (Tax Law section 1305(a)(1)). Day counts override domicile in both directions, and in both the taxpayer claiming the favorable result proves the days.

Two homes, two resident taxes

New York credits another state's income tax only on income "both derived therefrom and subject to tax under this article" (Tax Law section 620(a)), which the Appellate Division reads as income "earned in the other [s]tate" (Chamberlain v. New York State Department of Taxation and Finance, 166 AD3d 1112 (3d Dept 2018)). Section 620 has no rule for a taxpayer who is a resident of two states. Interest, dividends and capital gains have no source outside the state of residence, so a statutory resident domiciled elsewhere is taxed on them by New York as a resident and by the domicile state as a resident, and New York's credit does not reach them.

The Court of Appeals upheld that result in Matter of Tamagni v. Tax Appeals Tribunal, 91 NY2d 530 (1998), which it later described as sustaining New York's tax on statutory residents "who, as domiciliaries of New Jersey, were subject to resident income tax in New Jersey on certain income also taxed by New York," because each state taxed "under a different theory" (Matter of Zelinsky v. Tax Appeals Tribunal of the State of New York, 1 NY3d 85 (2003)). After Comptroller of the Treasury of Maryland v. Wynne, 135 S. Ct. 1787 (2015), Connecticut domiciliaries renewed the challenge, and the First Department held that Wynne did not abrogate Tamagni, since Wynne involved neither intangible investment income nor domiciliaries taxed as statutory residents of another state (Edelman v. New York State Department of Taxation and Finance, 162 AD3d 574 (1st Dept 2018)). The Third Department followed in Chamberlain, where Connecticut domiciliaries with a New York City residence were assessed about $2.7 million on intangible income, including gain on the sale of a business interest, with no credit for Connecticut tax. Whether the domicile state yields is a question of its own law. Chamberlain's facts carry the lesson: the year of a liquidity event is the year statutory residency costs the most.

Practice notes

Any client domiciled outside New York with access to a New York dwelling, whether owned, leased, employer-provided, or leased by a spouse, needs two answers each year: whether the dwelling is an abode maintained for substantially all of the year in which the client has a residential interest, and whether the count will stay at 183 days or fewer. Keep the count day by day, anchored to records made for other purposes (itineraries, toll and transit records, card statements, an assistant's calendar), reconcile it monthly from midyear, and leave a margin for late-year travel, illness, and family events. Keep a separate city count where the abode is in New York City. For an arriving executive, plan the start date and the housing arrangement against the duration element before the assignment begins, because Glynn and the 2008 amendment leave little room for a temporary-assignment argument. In a statutory-residency year with a planned sale or large investment income, quantify the credit gap before closing. G&G State Tax Group provides New York statutory residency planning and residency audit representation alongside its state and local tax practice.