If I'm a Florida domiciliary and I buy a studio apartment in New York City that I'll only use occasionally, will that make me a New York State or City resident who owes New York income tax?

Plain-English summary

Petitioner is retired and a full-time resident of Florida - he's registered to vote there and has his cars registered there. His income comes from investments, social security, a pension, and a 401(k), none of which is derived from New York sources. He was considering buying a studio apartment in New York City that he would use only occasionally, and he asked the Department whether doing so would make him a resident of New York State and New York City for personal income tax purposes.

The Department explained that New York taxes residents on all of their income, from any source, under Tax Law § 612(a). But someone who is domiciled in Florida isn't automatically a New York resident just because he owns New York property. Instead, a non-domiciliary becomes a New York "statutory resident" only if he maintains a permanent place of abode in New York and spends more than 183 days of the taxable year in the state (Tax Law § 605(b)(1)(B)); the New York City rule under the Administrative Code is essentially identical for city residency. A "permanent place of abode" is a dwelling of a permanent nature that the taxpayer maintains, but it does not include a mere vacation camp or cottage or a barracks-type space lacking normal dwelling facilities like cooking and bathing (20 NYCRR § 105.20(e)(1)).

The Department could not resolve the separate question of domicile in this Advisory Opinion, since domicile is highly fact-dependent, but it noted that if Petitioner remains a Florida domiciliary, mere ownership of the studio apartment - without more - will not make him a New York State or City resident or subject his non-New York income to New York tax. If, however, he is later determined to be a New York statutory resident (permanent place of abode plus more than 183 days present), all of his income from any source becomes subject to New York State personal income tax, and the taxpayer bears the burden of proving by clear and convincing evidence that he was not present in New York for more than 183 days if he wants to avoid that result.

What this means for you

Buying New York property while keeping an out-of-state domicile

Owning a New York apartment or house, by itself, does not make you a New York resident if you remain domiciled elsewhere. Residency turns on the combination of (1) maintaining a permanent place of abode in New York and (2) spending more than 183 days in New York during the year - not on ownership alone.

If you'll actually spend significant time in New York

If the property is a genuine dwelling (not a mere vacation cottage or bare-bones space lacking cooking/bathing facilities) and you spend more than 183 days in New York in a year, you become a statutory resident even without changing your domicile. That triggers New York tax on all of your income, from any source - not just New York-source income. Keep contemporaneous records (a diary, calendar, travel receipts, credit card statements) to substantiate your day count if you want to stay under the 183-day threshold, since the burden of proof is on you.

Common questions

Q: Will buying a studio apartment in New York City automatically make me a New York resident?
A: No. If you remain domiciled in Florida (or another state), mere ownership of New York real property alone does not make you a New York State or City resident.

Q: What actually triggers New York statutory residency?
A: Maintaining a permanent place of abode in New York and spending more than 183 days of the taxable year in New York, per Tax Law § 605(b)(1)(B) - unless you're in active military service.

Q: What counts as a "permanent place of abode"?
A: A dwelling of a permanent nature maintained by the taxpayer (or the taxpayer's spouse), whether owned or leased. A mere vacation camp or cottage, or a barracks-like space without ordinary dwelling facilities such as cooking and bathing, does not count.

Q: If I become a statutory resident, is only my New York income taxed?
A: No. Once you're a statutory resident, all of your income from any source becomes subject to New York State personal income tax, just as if you were domiciled there.

Q: Who has to prove how many days were spent in New York?
A: The taxpayer. A nonresident who maintains a New York permanent place of abode and claims not to be a statutory resident must keep adequate records and prove by clear and convincing evidence that he did not spend more than 183 days in New York during the year.

Citations and references

• Tax Law § 612(a) - New York residents are taxed on income from all sources
• Tax Law § 605(b)(1)(B) - definition of a New York statutory resident (permanent place of abode plus more than 183 days in the state)
• New York City Administrative Code § 11-1705(b) - parallel statutory resident definition for New York City
• 20 NYCRR § 105.20(e)(1) - definition of "permanent place of abode"
• 20 NYCRR § 105.20(c) - day-count rule (any part of a day counts) and recordkeeping requirement for statutory residency
• Matter of Kornblum v. Tax Appeals Trib. of State of N.Y., 194 AD2d 882 (3d Dep't 1993) - taxpayer's burden of proof on days present
• Matter of Smith v. State Tax Commn., 68 AD2d 993 (3d Dep't 1979) - taxpayer's burden of proof on days present
• Matter of Holt, Tax Appeals Tribunal, July 17, 2008 - fact-intensive nature of statutory residence cases
• TSB-A-93(1)I - domicile determinations are fact-dependent and not resolved via Advisory Opinion

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_8i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-11(8)I
Income Tax
October 12, 2011

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I110531A

The Department of Taxation and Finance received a Petition for Advisory Opinion from name
and address redacted. Petitioner asks whether he will be considered a resident of New York State and
New York City and have to pay New York State and City income tax if he buys a studio apartment in
New York City.
We conclude that, if Petitioner is a domiciliary of Florida, the mere ownership of real property
in New York State alone will not make Petitioner a New York State/City resident nor subject his
income to New York State personal income tax. If, however, Petitioner is determined to be a
New York statutory resident, then his income from any source will be subject to New York State
personal income tax.
Facts
Petitioner is retired and is a full-time resident of Florida. Petitioner has also registered to vote
in Florida and has his automobiles registered there. Currently, Petitioner’s income is derived from
investments, social security, pension, and 401K (“retirement funds”), none of which are from
New York sources. Petitioner, however, is considering purchasing a studio apartment in New York
City which he will use occasionally.
Analysis
Tax Law § 612(a) provides that for New York residents, income from all sources, even income
not connected to New York sources, is subject to New York State income tax. Additionally, Tax Law
§ 605(b) defines who is a New York resident and includes an individual “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.” See Tax Law § 605(b)(1)(B). The definition of “resident” for
City purposes is provided under the New York City Administrative Code § 11-1705(b), and is identical
in substance to that for New York State income tax purposes except that “New York City” replaces
“New York State”.
The Personal Income Tax Regulations provide that “[a] permanent place of abode means a
dwelling place of a permanent nature 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 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.” 20 NYCRR § 105.20(e)(1).

-2-

TSB-A-11(8)I
Income Tax
October 12, 2011

In determining whether an individual who is not domiciled in New York is a statutory resident,
it is the taxpayer who carries the burden of proving by clear and convincing evidence that he or she is
not present in the State or City for more than 183 days during the tax year. (See Matter of Kornblum v.
Tax Appeals Trib. of State of N.Y., 194 AD2d 882, [3d Dep’t 1993]; Matter of Smith v. State Tax
Commn., 68 AD2d 993, [3d Dep’t 1979]; Matter of Holt, Tax Appeals Tribunal, July 17, 2008).
Generally, presence within New York State for any part of a calendar day constitutes a day spent
within New York State. See 20NYCRR § 105.20(c). “Any person domiciled outside New York State
who maintains a permanent place of abode within New York State during any taxable year, 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.” Id. If a contemporaneously maintained diary or calendar
documenting his or her whereabouts is not maintained, he or she may meet his burden of proof through
testimonial evidence, documentary evidence, or a combination of the two (See Matter of Armel, Tax
Appeals Tribunal, August 17, 1995; Matter of Avildsen, Tax Appeals Tribunal, May 19, 1994, rearg.
denied, Tax Appeals Tribunal, January 25, 1995; Matter of Moss, Tax Appeals Tribunal, November
25, 1992). A clearly established “pattern of conduct” from which a taxpayer's location may be
determined for a particular day suffices to meet the burden of proof with regard to that day (See Matter
of Kern, Tax Appeals Tribunal, November 9, 1995, confirmed 240 AD2d 969, [3d Dep’t 1997].
General testimony regarding the “patterns and habits of life” when coupled with supporting
documentary evidence, is sufficient to meet the burden of proof (See Matter of Armel). In Matter of
Holt, the Tribunal stated that “[s]tatutory residence cases … are very fact intensive and require specific
evidence through substantiating contemporaneous records to show a taxpayer's whereabouts on a dayto-day basis during each year in question. Such records could include not only day calendars but airline
tickets, restaurant and hotel receipts and credit card statements.”
The issue of domicile is highly fact-dependent and not susceptible of determination in this
Advisory Opinion. See TSB-A-93(1)I. However, if Petitioner is domiciliary of Florida, Petitioner will
be subject to New York State income tax on all of his income only if he is deemed a New York
statutory resident. If Petitioner is not deemed to be a New York statutory resident, he will be subject to
New York income tax only on income that is derived from New York sources, if any.

DATED: October 12, 2011

NOTE:

/S/
DEBORAH R. 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.