If a nondomiciliary long-term-leases a hotel room or buys an apartment in New York with no cooking facility, does that count as a permanent place of abode for statutory residency purposes?

Plain-English summary

Paul Gajkowski, a nondomiciliary of New York State who maintains a permanent place of abode in his state of domicile, asked the Department to rule on two possible New York living arrangements. First, he was considering leasing a hotel room on a long-term basis; the room would have no cooking facility, could be used year-round, and would not be reserved for a temporary or particular purpose. Second, he was considering buying a New York apartment and removing its cooking facility before moving in; that apartment, too, would be usable year-round and not limited to a temporary or particular purpose.

The question mattered because New York's statutory residency test, Tax Law § 605(b)(1)(B), taxes a nondomiciliary as a resident if the person maintains a permanent place of abode in New York and spends more than 183 days in the state during the year. The regulation defining that term, 20 NYCRR 105.20(e), excludes a mere vacation camp or cottage, a barracks or similar structure lacking dwelling facilities such as cooking or bathing, and any place kept only for a temporary stay for a particular purpose.

The Department applied the case law standard that permanence turns on whether the living arrangement is maintained as a dwelling "with such degree of continuity as to be considered permanent" (citing Matter of Newcomb, Matter of Evans, and a 1940 Attorney General opinion), looking to both the physical aspects of the place and the individual's relationship to it. Applying that standard, the Department concluded that both the long-term-leased hotel room and the no-kitchen apartment would be dwellings maintained by the taxpayer year-round, not for a temporary stay or particular purpose - so both would be permanent places of abode.

The Department was explicit that the missing cooking facility does not, by itself, disqualify either dwelling. The regulation's reference to facilities such as cooking and bathing describes the kind of construction (like a barracks) that generally is not a dwelling at all - it does not mean every dwelling lacking a kitchen automatically escapes the permanent-place-of-abode rule.

What this means for you

Nondomiciliaries considering a long-term hotel stay

If you are not domiciled in New York but plan to lease a hotel room there on a long-term, year-round basis (rather than for a specific trip or temporary purpose), expect that room to count as a permanent place of abode for statutory residency purposes - even if it has no kitchen. Combined with more than 183 days in New York during the year, that can make you a statutory resident taxable on your worldwide income.

Buyers who remove a kitchen hoping to avoid abode status

Purchasing or leasing a New York dwelling and stripping out the cooking facility does not, on its own, keep the place out of the "permanent place of abode" definition. The Department looks at whether the dwelling is maintained year-round for ordinary living rather than for a vacation, a barracks-like temporary purpose, or a particular short-term need.

Common questions

Q: Does removing the kitchen from an apartment prevent it from being a permanent place of abode?
A: No. The Department ruled that an apartment with the cooking facility removed is still a permanent place of abode if it is maintained year-round and not just for a temporary stay or particular purpose.

Q: Can a hotel room ever be a permanent place of abode?
A: Yes, if it is leased on a long-term basis, used throughout the year, and not reserved for a temporary or particular purpose - as opposed to an ordinary short hotel stay.

Q: What kinds of dwellings are excluded from the permanent-place-of-abode definition?
A: Under 20 NYCRR 105.20(e), a mere vacation camp or cottage used only for vacations, a barracks or similar construction lacking dwelling facilities like cooking or bathing, and any place maintained only during a temporary stay for a particular purpose are generally not permanent places of abode.

Q: Why doesn't the lack of a kitchen matter here if the regulation mentions cooking facilities?
A: The regulation's cooking/bathing reference targets bare structures like barracks that don't function as dwellings at all. Because both the hotel room and the apartment would otherwise be maintained as ordinary, year-round living arrangements, the missing kitchen did not change the outcome.

Q: What test governs whether a nondomiciliary is a New York statutory resident?
A: Under Tax Law § 605(b)(1)(B), a nondomiciliary who maintains a permanent place of abode in New York and spends more than 183 days of the taxable year in the state is treated as a resident individual (absent an active-duty armed forces exception).

Citations and references

• Tax Law § 605(b)(1)(B) - defines a resident individual as including a nondomiciliary who maintains a permanent place of abode in New York and spends more than 183 days in the state during the taxable year
• 20 NYCRR 105.20(e) - defines "permanent place of abode" and excludes vacation camps/cottages, barracks-like structures lacking dwelling facilities, and places maintained only for a temporary stay for a particular purpose
• Matter of Newcomb, 192 NY 238 - residency determinations depend on the variety of circumstances particular to the individual
• Matter of Evans, Dec Tax App Trib, June 18, 1992, TSB-D-92(16)I, aff'd 199 AD2d 840 - one "maintains" an abode by doing whatever is necessary to continue living arrangements there; permanence covers the physical dwelling and the individual's relationship to it
• 1940 Op Atty Gen 245 - a permanent place of abode is an abiding place maintained with such continuity as to be considered permanent

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2002.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a02_7i.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Tax Policy Analysis
Technical Services Division

TSB-A-02(7)I
Income Tax
November 6, 2002

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I020513A

On May 13, 2002, a Petition for Advisory Opinion was received from Paul Gajkowski, c/o
Pustorino Puglisi, 515 Madison Avenue, New York, New York 10022.
The issues raised by Petitioner, Paul Gajkowski, are:

1. Whether a hotel room that does not have a cooking facility is considered a permanent place
   of abode.
2. Whether an apartment that does not have a cooking facility is considered a permanent place
   of abode.
   Petitioner submits the following facts as the basis for this Advisory Opinion.
   Taxpayer is a nondomiciliary of New York State and maintains a permanent place of abode in
   the state of domicile. Taxpayer is considering leasing a hotel room on a long term basis. The hotel
   room would not have a cooking facility. The hotel room can be used throughout the year and will not
   be used for a temporary or a particular purpose. Taxpayer is also considering purchasing an apartment
   in New York State. Prior to moving to the apartment, the cooking facility will be removed. The
   apartment can be used throughout the year and will not be used for a temporary or a particular purpose.
   Applicable Law and Regulations
   Section 605(b)(1) of the Tax Law provides, in part:
   Resident individual. A resident individual means an individual:
   *

*

*

(B) 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.
Section 105.20(e) of the Personal Income Tax Regulations ("Regulations") defines permanent
place of abode, and provides, in part:
Permanent place of abode. (1) A permanent place of abode means a dwelling
place permanently maintained by the taxpayer, whether or not owned by such taxpayer,
and will generally include a dwelling place owned or leased by such taxpayer’s spouse.
However, a mere camp or cottage, which is suitable and used only for vacations, is not
a permanent place of abode. Furthermore, a barracks or any construction which does

-2­
TSB-A-02(7)I
Income Tax
November 6, 2002

not contain facilities ordinarily found in a dwelling, such as facilities for cooking,
bathing, etc., will generally not be deemed a permanent place of abode. Also, a place
of abode, whether in New York State or elsewhere, is not deemed permanent if it is
maintained only during a temporary stay for the accomplishment of a particular
purpose....
Opinion
Determinations of a taxpayer’s status as a resident or nonresident individual for purposes of
personal income tax have long been based on the principle that the result “frequently depends on a
variety of circumstances which differ as widely as the peculiarities of individuals.” (Matter of
Newcomb, 192 NY 238)
The words “maintain” and “permanent” are not limited to any particular usage but, instead, may
apply to a variety of circumstances inherent in the subject matter at hand. (Matter of Evans, Dec Tax
App Trib, June 18, 1992, TSB-D-92(16)I), aff’d 199 AD2d 840)) “[O]ne maintains a place of abode
by doing whatever is necessary to continue one’s living arrangements in a particular dwelling place.”
(Evans, id.) “[T]he permanence of a dwelling place ... cannot be limited to circumstances which
establish a property right in the dwelling place. Permanence, in this context, must encompass the
physical aspects of the dwelling place as well as the individual’s relationship to the place.” (Evans, id.)
In general, a “permanent place of abode” means “an abiding place maintained by a person with such
degree of continuity as to be considered to be permanent.” (1940 Op Atty Gen 245)
When determining whether Taxpayer is maintaining a permanent place of abode for purposes
of section 605(b)(1) of the Tax Law and section 105.20(e) of the Regulations, consideration should be
given to whether the living arrangements will be maintained as a dwelling on a permanent basis.
Taxpayer’s proposed living arrangements in New York will consist of either a long term lease of a hotel
room or the purchase of an apartment where the cooking facilities have been removed. In either case,
the living arrangements will constitute a dwelling that will be maintained by Taxpayer and will be used
throughout the year. Such living arrangements will not be used for a temporary stay for a particular
purpose. Therefore, in either case, Taxpayer will be considered to be maintaining a permanent place
of abode pursuant to section 605(b)(1) of the Tax Law and section 105.20(e) of the Personal Income
Tax Regulations. The fact that the dwelling will not contain cooking facilities does not preclude such
dwelling from being considered a permanent place of abode in New York that is maintained by
Taxpayer.

DATED: November 6, 2002

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Technical Services Division

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