For the 548-day rule that lets a New York domiciliary working abroad avoid New York resident status, do partial days spent in a foreign country count toward the 450-day requirement, or only full days?

Plain-English summary

A New York domiciliary living and working in a foreign country asked the Department how to count days for purposes of the "548-day rule." Under that rule, a New York domiciliary is not treated as a New York resident, despite domiciliary status, if the person is present in a foreign country (or countries) for at least 450 days within any consecutive 548-day period, is present in New York State for no more than 90 days during that same 548-day period (counting the taxpayer, spouse, and minor children), and stays within a proportional day limit in New York during the nonresident portion of the taxable years the 548-day period begins and ends. The Petitioner's tax years at issue were 2009, 2010, and 2011.

The specific question was whether only full days spent in the foreign country count toward the 450-day minimum, or whether partial days count too. The Department concluded that both full and part days in a foreign country count toward the 450-day threshold.

To reach that conclusion, the Department looked to 20 NYCRR § 105.20(c), the existing regulation for counting days present in New York, which treats any part of a calendar day as a full day spent in New York State (except when the presence is strictly for travel to a destination outside the state, or while passing through). The Department applied that same counting method to the foreign-country side of the 548-day rule. A practical consequence follows: because travel days can straddle two places, the same calendar day can sometimes count both as a day present in New York (toward the 90-day cap) and as a day present in a foreign country (toward the 450-day minimum), subject to the travel exception.

What this means for you

New York domiciliaries working abroad

If you're relying on the 548-day rule to avoid New York resident status while living and working overseas, you don't need a full 24 hours in the foreign country for a day to count - any part of a calendar day spent there counts toward your 450-day minimum, the same way any part of a day spent in New York counts toward the 90-day maximum.

Accountants and tax professionals

When calculating a client's 548-day rule eligibility, apply the same day-counting method on both sides of the ledger: use 20 NYCRR § 105.20(c)'s "any part of a day counts" standard for both the New York presence count and the foreign-country presence count. Be aware that a single travel day can be counted toward both totals simultaneously (unless the travel exception in the regulation applies), which can work in the taxpayer's favor when tracking the 450-day threshold.

Common questions

Q: Does a partial day spent in a foreign country count toward the 450-day requirement of the 548-day rule?
A: Yes. The Department held that both full and part days in a foreign country count toward the 450-day minimum.

Q: Where does this day-counting method come from?
A: The Department applied the same standard already used in 20 NYCRR § 105.20(c) for counting days present in New York State, under which any part of a calendar day generally counts as a day present.

Q: Is there an exception to counting a partial day?
A: Yes - under 20 NYCRR § 105.20(c), a day does not count as a day present in New York if the presence is strictly for travel to a destination outside the state, or while traveling through the state. The Department applied this same travel exception when counting foreign-country days.

Q: Can the same calendar day count as both a day in New York and a day in a foreign country?
A: Yes. Because a taxpayer can spend part of one day in each location, that day can count toward the 90-day New York maximum and toward the 450-day foreign-country minimum at the same time, subject to the travel exception.

Q: What are the other requirements of the 548-day rule besides the 450-day threshold?
A: Under Tax Law § 605(b)(1)(A)(ii), the taxpayer (along with a non-legally-separated spouse and minor children) must not be present in New York for more than 90 days during the 548-day period, and New York presence during the nonresident portion of the taxable years in which the period begins and ends cannot exceed a proportional share of that 90-day limit.

Citations and references

• Tax Law § 605(b)(1)(A)(ii) - the "548-day rule" allowing a New York domiciliary to avoid resident status if present in a foreign country for at least 450 days within a 548-day period, subject to New York-presence limits
• 20 NYCRR § 105.20(c) - provides that any part of a calendar day counts as a day present in New York State, except for strict travel-through or travel-to-destination presence; the Department applied this same method to counting foreign-country days

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2011.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a11_3i.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Counsel
Advisory Opinion Unit

TSB-A-11(3)I
Income Tax
May 6, 2011

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I110318A

On March 18, 2011, the Department of Taxation and Finance received a Petition for Advisory
Opinion from name and address redacted. Petitioner asks whether, for purposes of determining if he spent
or will spend 450 days or more in a foreign country for purposes of the “548-day rule”, both full and part
days in a foreign country should be counted.
We conclude that both full and part days in a foreign country should be counted in determining
whether an individual has spent (or will spend) 450 days or more in a foreign country under the 548-day
rule.
Facts
Petitioner is a New York domiciliary who is living and working in a foreign country. The tax
years involved in this petition are 2009, 2010 and 2011.
Analysis
The “548-day rule” is contained in Tax Law Section 605(b)(1)(A)(ii). This provision states that a
New York State domiciliary will not be deemed a New York State resident notwithstanding his or her
domiciliary status if that person:
(1)

within any consecutive 548-day period, is present in a foreign country or countries for at least 450
days; and

(2)

during the period of 548 consecutive days, the taxpayer, the taxpayer's spouse (unless the
taxpayer and spouse are legally separated) and the taxpayer's minor child are not present in
New York State for more than 90 days; and

(3)

during the nonresident portion of the taxable years within which the 548-day period begins and
ends, the number of days in which the taxpayer is present in New York State does not exceed the
same ratio to 90 as the number of days in that taxable year bears to 548.

The Income Tax Regulation in 20 NYCRR § 105.20(c) provides that, in counting the number of
days spent within and without New York, any part of a calendar day constitutes a day spent within
New York State, except when such presence is strictly for travel to a destination outside the state, or while
traveling through the State.
The same method should apply in determining whether the taxpayer is present in a foreign
country for the requisite number of days, i.e., both full and part days in a foreign country should be
counted in determining whether an individual has spent (or will spend) 450 days or more in a foreign
country under the 548-day rule. It is possible for a taxpayer to spend part of a day in both New York

-2-

TSB-A-11(3)I
Income Tax
May 6, 2011

State and a foreign country, in which case the day would count as a day spent in New York State toward
the 90-day maximum within the 548-day period and a day spent in a foreign country toward the 450-day
minimum, subject to the travel exception. Thus, the same calendar day may be counted in both the
New York and the foreign country tabulation in certain instances.

DATED: May 6, 2011

NOTE:

/S/
DEBORAH LIEBMAN
Deputy Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the facts set
forth therein and is binding on the Department only with respect to the person or entity to
whom it is issued and only if the person or entity fully and accurately describes all relevant
facts. An Advisory Opinion is based on the law, regulations, and Department policies in effect
as of the date the Opinion is issued or for the specific time period at issue in the Opinion.