If you move your domicile out of New York but still own your New York apartment while it's under contract for sale, and you spend more than 183 days in New York that year, are you still taxed as a New York statutory resident?

Plain-English summary

A couple moved out of their New York City apartment on May 14, 2010 and changed their domicile to Connecticut, relocating their vehicle registrations, driver's licenses, voter registrations, bank accounts, and personal belongings. They asked the Department whether the spouse who spent more than 183 days in New York during 2010 would still be taxed as a full-year New York resident under the statutory residency rule, given that they no longer lived in the New York apartment while it was being renovated, staged, and sold.

New York's statutory residency test taxes a non-domiciliary as a full-year resident if that person maintains a "permanent place of abode" in New York and spends more than 183 days in the state during the year. The Tax Law does not define "permanent place of abode," but a regulation describes it as a dwelling of a permanent nature maintained by the taxpayer, and Department guidance requires that the dwelling be maintained for substantially all of the taxable year (generally more than 11 months). Recent Tax Appeals Tribunal decisions - Matter of Barker and Matter of Gaied - had held that a taxpayer need not actually live in a dwelling for it to count as a permanent place of abode, so long as the taxpayer retains dominion and control, or unfettered access, over it.

The Department distinguished those cases. Here, once the apartment was listed for sale, the listing agreement legally barred the couple from living in it, required them to remove their belongings, and required them to turn over all keys to the real estate agent so the apartment could be shown to buyers on short notice. Although they kept paying for electric utilities as part of the building's common charges until the 2011 closing, they had no right to enter the apartment during the marketing period. Because they lacked unfettered use and control of the dwelling, the Department concluded they did not maintain a permanent place of abode in New York for substantially all of 2010.

As a result, the spouse who spent more than 183 days in New York in 2010 was not a statutory resident for that year and was not subject to New York tax as a full-year resident on all income from all sources, despite exceeding the 183-day threshold.

What this means for you

If you're selling your New York home after moving your domicile elsewhere

Simply owning a New York dwelling and exceeding 183 days in the state does not automatically make you a statutory resident. If a binding listing or sale agreement legally prevents you from living in the property and requires you to surrender keys and remove your belongings, that loss of unfettered access can mean the property is no longer a "permanent place of abode" - even though you still own it and pay some carrying costs.

Document the restrictions on access

This opinion turned on concrete, verifiable facts: a signed listing agreement barring occupancy, keys turned over to the agent, and possessions removed for staging. If you're relying on this reasoning, keep the listing agreement, contract of sale, and records showing exactly when you lost and regained access, since the Department and Tribunal look closely at whether access was truly restricted versus merely inconvenient.

Don't confuse this with cases where the owner retains control

Contrast this with Matter of Barker and Matter of Gaied, where the taxpayers retained the legal right to use their New York dwellings even though they rarely did so - those dwellings still counted as permanent places of abode. The distinguishing factor here was the legal loss of access, not merely a personal choice not to live there.

Common questions

Q: Does moving your domicile out of New York automatically end your New York tax residency?
A: Not by itself. Even after changing domicile, a non-domiciliary who maintains a permanent place of abode in New York and spends more than 183 days there in the year is taxed as a statutory resident on all income from all sources under Tax Law § 605(b)(1).

Q: Why weren't the Petitioners statutory residents even though one spouse spent more than 183 days in New York?
A: Because the listing agreement for the sale of their apartment legally prohibited them from living there and required them to turn over all keys, they lacked unfettered access to the dwelling. Without that access, the apartment did not qualify as a "permanent place of abode" under 20 NYCRR 105.20(e)(1).

Q: Does continuing to pay utility bills on a property you can't live in make it a permanent place of abode?
A: Not on its own. The Petitioners kept paying for electric utilities as part of common charges until the sale closed, but the Department focused on their lack of legal access and control, not on who paid the bills.

Q: How is this different from Matter of Barker or Matter of Gaied, where the properties were still treated as permanent places of abode?
A: In those cases the taxpayers retained the right to use the dwellings at will, even if they rarely exercised it. Here, the listing agreement affirmatively barred the Petitioners from using the apartment, which the Department treated as a legally, not just practically, different situation.

Q: What counts as "substantially all of the taxable year" for maintaining a permanent place of abode?
A: The Department has generally interpreted that phrase as more than 11 months of the year, per 20 NYCRR 105.20(a)(2) and related guidance referenced in this opinion.

Citations and references

• Tax Law § 601 - imposes New York State personal income tax on resident individuals
• Tax Law § 605(b)(1) - defines "resident individual," including the statutory residency test (permanent place of abode plus more than 183 days in New York)
• 20 NYCRR 105.20(e)(1) - defines "permanent place of abode" as a dwelling of a permanent nature maintained by the taxpayer
• 20 NYCRR 105.20(a)(2) - a permanent place of abode must be maintained for substantially all of the taxable year
• Matter of John J. and Laura Barker, Tax Appeals Tribunal (Jan. 13, 2011 and June 23, 2011) - a house objectively suitable for year-round living and under the taxpayer's dominion and control is a permanent place of abode even if used only for vacations
• Matter of Gaied, Tax Appeals Tribunal (June 16, 2011) - a dwelling can be a permanent place of abode even if the taxpayer rarely stays there, so long as the taxpayer has a property right and unfettered physical access
• Matter of Roth, Tax Appeals Tribunal (March 2, 1989) - there is no requirement that a taxpayer actually dwell in the abode, only that the taxpayer maintain it

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_9i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-11(9)I
Income Tax
November 8, 2011

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

PETITION NO. I110727A

The Department of Taxation and Finance received a Petition for Advisory Opinion from
Petitoners’ names and name of city and state redacted. Petitioners ask whether they qualify as
part-year New York residents for 2010. The issue turns on whether Petitioners became statutory
residents when they changed their domicile from New York to Connecticut and had restricted
access to and use of their New York City residence prior to its sale in 2011.
We conclude that Petitioners did not maintain a permanent place of abode in New York
for 2010 and, thus, the Petitioner who spent in excess of 183 days in New York in 2010 should
not be taxed as a resident of New York in that year.
Facts
Petitioners moved out of their New York City apartment on May 14, 2010 and changed
their domicile from New York to Connecticut. Vehicle registrations, drivers’ licenses, voter
registrations, bank accounts, etc., were moved to Connecticut from New York. All of their
personal items were moved to Connecticut, and the New York apartment telephone was
disconnected. Petitioners continued to pay for electrical utilities on the New York property as
part of the common charges included in monthly assessments until sale of the property in 2011.
Extensive renovations began in the apartment on May 24, 2010, including but not limited
to removal of a media room wall, relocation of office built-ins from the media room to the
bedroom, removal of Bose theatre sound systems, replacement of the foyer tile floor with wood,
and removal of a 10-foot shoe closet and storage area in the foyer. After demolition and rewiring
was completed, sheetrock was replaced, patched, and sanded; all the wood floors throughout the
residence were sanded and refinished; and all the walls and ceilings were repainted. Work was
completed on or about June 24, 2010 for the first previews of the apartment by the real estate
agent to other brokers. The first showing occurred on July 22, 2010.
Prior to being listed for sale, new staging furniture, carpets, art work, bath towels and bed
linens, other decorative accessories and personal effects were either bought, borrowed on loan, or
provided by the real estate agent to make the residence appear to be “lived in” and more
attractive to a potential buyer. At the staging time, a house cleaner was hired to clean the
residence every two weeks. Upon completion of the sale, the art work, decorative accessories,
and personal effect were returned to those who loaned them, and the staging furniture was sold
or donated to charity.

-2-

TSB-A-11(9)I
Income Tax
November 8, 2011

The listing agreement stipulated the Petitioner would not live in the apartment during the
period of the sales process, in order to maintain the property in pristine condition, as well as to
allow showing of the property to potential buyers on a moment’s notice. All keys to the
apartment were turned over to the real estate agent.
A signed contract for sale of the property was completed on December 6, 2010. A
closing for the property occurred on February 23, 2011. Petitioner returned to the apartment one
week prior to closing to remove all staged furniture.
Both Petitioners work in New York City, but only one spent more than 183 days in
New York during 2010.
Analysis
Tax Law §601 imposes New York State personal income tax on “resident individuals.”
Tax Law §605(b)(1) defines a “resident individual” as someone:
(A) who is domiciled in this state, unless (i) he maintains no permanent
place of abode in this state, maintains a permanent place of abode elsewhere, and
spends in the aggregate not more than thirty days of the taxable year in this
state…, or
(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….
Petitioners stated that they changed their domicile from New York to Connecticut on
May 14, 2010, and we will assume for purposes of this Advisory Opinion that domicile was
established in Connecticut on that date. One of the Petitioners spent more than 183 days in
New York during 2010. Therefore, in order to conclude that the Petitioner who spent more than
183 days in New York during 2010 was only a part-year resident individual of New York,
instead of a full-year resident individual required to pay New York personal income tax on all his
or her 2010 income from all sources, the issue is limited to whether that Petitioner maintained a
permanent place of abode in New York during the taxable year.
The Tax Law does not include a definition of the term “permanent place of abode.”
However, the regulation at 20 NYCRR 1-5/2-(e)(1) provides, in part, the following interpretation
of this term:
Permanent place of abode. (1) 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.

-3-

TSB-A-11(9)I
Income Tax
November 8, 2011

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.
In addition, “a permanent place of abode” is one maintained by a taxpayer for “substantially all
of the taxable year.”1 As a general rule, the Department has interpreted “substantially all of the
taxable year” as more than 11 months during the year.2 “Maintained” is not defined.
Several recent cases decided by the Tax Appeals Tribunal have interpreted this
regulation. In Matter of John J. and Laura Barker (Tax Appeals Tribunal, January 13, 2011
and June 23, 2011), a case in which the Petitioners bought a house suitable for year round use
that they used only for seasonal vacations, Petitioners argued that the house was not a permanent
place of abode, because the house was subjectively undesirable for their year-round use due to
their family- and work-related commitments. The Tribunal rejected Petitioner’s argument,
saying:
It is well settled that a dwelling is a permanent place of abode where, as it
is here, the residence is objectively suitable for year round living and the taxpayer
maintains dominion and control over the dwelling, (see e.g., Matter of Roth, Tax
Appeals Tribunal, March 2, 1989…. As we stated in Roth, “[t]here is no
requirement that the petitioner actually dwell in the abode, but simply that he
maintain it (Matter of Roth, supra).
The Barker decision, however, may be distinguished from the case at hand. Due to their work,
family, and civic commitments elsewhere, the Barkers themselves used the house only for some
weekends from late May to early October during the years at issue. When the Barkers were not
there, they permitted Mrs. Barker’s parents to use the house which the parents did several days a
week during the summer months and on many weekends the remainder of the year.
A similar conclusion was reached by the Tribunal in Matter of Gaied (Tax Appeals
Tribunal, June 16, 2011). Petitioner, in that case, maintained an apartment residence for his
elderly parents in a building that he owned. Petitioner stayed in the apartment only on rare
occasions to attend to his parents’ medical needs and kept no personal items in the apartment.
Indicating that a taxpayer need not live in a dwelling in order for the dwelling to qualify as a
permanent place of abode, the Tribunal held:
Where a taxpayer has a property right to the subject premises, it is neither
necessary nor appropriate to look beyond the physical aspects of the dwelling place
to inquire into the taxpayer’s subjective use of the premises.

1
2

20 NYCRR 105.20(a)(2).
TSB-M-09(2)(I).

-4-

TSB-A-11(9)I
Income Tax
November 8, 2011

Matter of Gaied, supra may also be distinguished from the facts in this Advisory
Opinion. Petitioner in Gaied was found to have unfettered access to the apartment he maintained
for his parents.
In the matter at hand, Petitioners entered into a real estate listing contract under which
they were legally bound to turn over all the keys to their apartment to the real estate agent,
remove all their personal possessions from the apartment, and agree not to live in the apartment
during the period of the sales process. Although Petitioners did pay for maintenance, such as
electric utilities as part of the common charges included in monthly assessments, until the
property was sold, they were contractually prohibited from entering the apartment during the
period during which it was being shown to potential buyers. As such, Petitioners did not
maintain a permanent place of abode in New York, because they did not have unfettered use of
their apartment. We conclude that the Petitioner that spent more than 183 days in New York
during 2010 was not a “resident individual” in that year for purposes of New York State personal
income tax, because he or she did not maintain a permanent place of abode for substantially all
of the taxable year.

DATED: November 8, 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.