New York Advisory Opinion TSB-A-88 (16)I: Issue raised is whether an individual domiciled outside New York State is a New York State resident, pursuant to section 605(b)(1)(B) of Article 22 of the Tax Law, when the individual spends in the aggregate more than 183 days in New York State but maintains a permanent place of abode in New York State for only a portion of the year.

Plain-English summary

Richard A. Eisner & Company asked the Department a hypothetical question on behalf of a client: can spending a lot of time in New York, by itself, ever be enough to make someone a New York "resident" for income-tax purposes, even if that person keeps their home base elsewhere and only had a New York place to stay for part of the year? The scenario: an individual not domiciled in New York spends 100 days in the state during the first half of the year with no New York home at all, then gets a New York permanent place of abode during the second half of the year and spends another 100 days there - 200 days in New York for the year in total, well over the famous "183-day" threshold.

This is a genuinely important rule for anyone tracking New York's statutory-residency test. Tax Law § 605(b)(1)(B) says a nondomiciled individual becomes a New York "resident" if they (1) maintain a permanent place of abode in New York and (2) spend more than 183 days in the aggregate in New York during the year. Many people assume that clearing 183 days is the whole test. It isn't. The Department held that its longstanding policy requires the New York permanent place of abode to exist for substantially all of the taxable year - not just some of it - before the 183-day count even matters. Because this individual's New York home existed for only about half the year, the abode requirement was not satisfied, and the person was not a statutory resident for that year at all, despite the 200-day count.

The Department explained the reason for the "substantially all of the year" gloss on the statute: it exists to keep the treatment of nondomiciled statutory residents under § 605(b)(1)(A)(i) and Regulation § 102.2(b)(1) - which require a domiciled individual to be away from any New York abode for essentially the entire year in order to claim nonresident status. Applying "substantially all the year" symmetrically on both sides of the domicile line prevents one group from facing a stricter or looser abode standard than the other. Because the threshold abode-duration question was answered "no," the Department did not need to reach the second part of the taxpayer's question - whether residency, if triggered, would run from the start of the year or only from when the New York abode began.

What this means for you

People who spend a lot of time in New York but get an apartment only partway through the year

Simply adding up your New York days is not the end of the analysis. If you're not domiciled in New York, the 183-day count only triggers statutory residency if you also maintained a New York permanent place of abode for substantially all of the year. An individual who splits time between New York and elsewhere before acquiring a New York apartment or house mid-year - even while racking up 200 total New York days - is not automatically a statutory resident, because the abode existed for only part of the year.

Tax preparers evaluating the "183-day" statutory residency test

Don't treat the 183-day rule as a standalone day-count test. Confirm both elements of Tax Law § 605(b)(1)(B): the day count and the duration of the New York permanent place of abode. "Substantially all of the taxable year" is the Department's longstanding administrative gloss on the statute (not spelled out word-for-word in the statutory text itself), so when a client's New York home was established or given up partway through the year, flag that fact pattern for a closer look before concluding statutory residency applies.

People moving into or out of New York mid-year

If you move into New York and set up a permanent place of abode partway through the year, having spent significant time in New York earlier in the year (before you had any New York home) does not automatically make you a statutory resident for the whole year. The abode-duration requirement protects you from statutory residency in scenarios like this one. That said, this opinion does not decide what happens if the New York abode itself lasts substantially all of the year (for example, established in January and kept through December) - that is a different fact pattern from the one addressed here.

Common questions

Q: If I spend 200 days in New York but only had an apartment here for about 6 months, am I a New York resident?
A: Under this opinion, no - not as a statutory resident under Tax Law § 605(b)(1)(B). The day count (200 days) easily clears the 183-day threshold, but the Department's longstanding policy requires the New York permanent place of abode to exist for substantially all of the taxable year, not just part of it. Since the abode here existed for only about half the year, the statutory-residency test was not satisfied.

Q: Does the 183-day count matter at all, then?
A: Yes, but only as one of two required elements. Tax Law § 605(b)(1)(B) requires both a New York permanent place of abode maintained for substantially all of the year and more than 183 days spent in New York in the aggregate. Failing either element means the individual is not a statutory resident, regardless of how comfortably the other element is met.

Q: Where does the "substantially all of the taxable year" requirement come from if it's not in the statute's exact wording?
A: The Department describes it as its longstanding administrative policy interpreting section 605(b)(1)(B). The opinion explains that this policy is meant to keep nondomiciled statutory residents and domiciled nonresidents (under section 605(b)(1)(A)(i) and Regulation § 102.2(b)(1), which similarly requires the absence of a New York abode for essentially the whole year to claim nonresident status) on the same footing, so neither group faces a stricter or looser abode-duration standard than the other.

Q: If the individual in this scenario had been found to be a statutory resident, would residency have started from January 1 or from when the New York abode began?
A: The opinion does not answer that question. Because the New York abode did not last substantially all of the taxable year, the Department found there was no statutory residency at all for that year, so it never needed to reach the follow-up question of when a partial-year statutory residency would begin.

Q: Does this mean I can avoid New York statutory residency just by delaying when I get a New York apartment?
A: This opinion addresses a specific hypothetical where the New York abode covered only about half the year. It does not bless every abode-timing arrangement - the Department's "substantially all of the taxable year" standard is fact-sensitive, and a permanent place of abode that covers most (even if not literally all) of the year could still satisfy the requirement. Anyone structuring the timing of a New York residence around this rule should get specific advice rather than relying on the exact 50/50 split described here.

Citations and references

• Tax Law § 605(b)(1)(B) - defines a nondomiciled "resident individual" as someone who maintains a New York permanent place of abode and spends more than 183 days in the aggregate in New York during the taxable year
• Tax Law § 605(b)(1)(A)(i) - defines when a New York-domiciled individual can instead be treated as a nonresident
• Income Tax Regs § 102.2(b)(1) - regulatory provision paired with section 605(b)(1)(A)(i) governing the domiciled-nonresident test
• Departmental longstanding policy (as stated in this opinion) - requiring a nondomiciled individual to maintain a New York permanent place of abode for substantially all of the taxable year before the 183-day test can trigger statutory residency

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1988.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a88_16i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-88 (16) I
Income Tax
October 4, 1988

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I880428A

On April 28, 1988, a Petition for Advisory Opinion was received from Richard A. Eisner &
Company, 575 Madison Avenue, New York, New York 10022.
The issue raised is whether an individual domiciled outside New York State is a New York
State resident, pursuant to section 605(b)(1)(B) of Article 22 of the Tax Law, when the individual
spends in the aggregate more than 183 days in New York State but maintains a permanent place of
abode in New York State for only a portion of the year. If yes, does the individual become a resident
from the beginning of the year or from the time the individual maintains a permanent place of abode
in New York State.
Facts
An individual is not domiciled in New York State. During the first half of a taxable year, the
individual does not have a permanent place of abode in New York State but does spend in the
aggregate 100 days in New York State. During the second half of the taxable year, the individual
maintains a permanent place of abode in New York State and spends another 100 days in New York
State. In total, 200 days were spent in New York State during the taxable year.
Discussion
Section 605(b)(1)(B) of the Tax Law defines a "resident individual" as 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."
It is the longstanding policy of the Department of Taxation and Finance that an individual
not domiciled in New York State must maintain a permanent place of abode within the state for
substantially all of the taxable year in order to become a resident individual pursuant to the
provisions of section 605(b)(1)(B) of the Tax Law. This policy is intended to avoid disparate
treatment for resident nondomiciliaries under section 605(b)(1)(B) and nonresident domiciliaries
under section 605(b)(1)(A)(i) and regulation section 102.2(b)(1).

-2­
TSB-A-88 (16) I
Income Tax
October 4, 1988

Accordingly, where an individual is domiciled outside New York State for the entire taxable
year, maintains a permanent place of abode in New York State for only a portion of the taxable year
and spends in the aggregate more than 183 days in New York State during the taxable year, the
individual is not considered a New York State resident individual, pursuant to section 605(b)(1)(B)
of the Tax Law, for such taxable year.

DATED: October 4, 1988

s/FRANK J. PUCCIA
Director
Technical Services Bureau

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