If someone domiciled and living in Florida for 15 years buys a New York City co-op that they personally use only from June through September and leave vacant the rest of the year, will they become subject to New York State personal income tax?

Plain-English summary

Petitioner, Freundlich & Company, asked the Department whether an unnamed individual would owe New York State personal income tax for 1994 and later years under a specific fact pattern. The individual has lived in, been a resident of, and been domiciled in Florida for the last 15 years, with every traditional marker of Florida domicile - voter registration, driver's license, a Florida condominium, bank and brokerage accounts - located there. The individual usually travels to New York (or other northern states) from mid-May through September, and was considering buying a cooperative apartment in Queens, New York City. Under the plan, the individual would personally use the co-op from June through September, leave it vacant the rest of the year (aside from occasional gratuitous use by friends or family), and would not be physically present in New York at any other time.

The Department applied Tax Law § 605(b), which defines a "resident individual" as either someone domiciled in New York, or someone not domiciled in New York who nonetheless maintains a "permanent place of abode" in the state and spends more than 183 days of the year there (the statutory-residency test). Under 20 NYCRR § 105.20(e), a "permanent place of abode" is a dwelling place permanently maintained by the taxpayer, regardless of ownership form, and the Department held that once the individual buys the Queens co-op, it will meet this definition - it is "immaterial" that the apartment will sit vacant most of the year. Owning and periodically using a seasonal residence is enough to "permanently maintain" it.

Critically, though, having a permanent place of abode does not by itself create New York residency. The Department applied the full two-part test in 20 NYCRR § 105.20(a): the individual will be treated as a New York resident, subject to tax on all income under Article 22, only for a taxable year in which the co-op is maintained as a permanent place of abode for substantially all of that year AND the individual spends more than 183 aggregate days in New York during that year. For any year in which the individual does not spend more than 183 days in New York (or does not maintain the abode for substantially all of the year), the individual remains a nonresident, taxable only on New York-source income under Tax Law § 631, the numerator of the allocation fraction in Tax Law § 601(e). The opinion lays out this conditional legal framework but does not itself calculate or determine whether the individual's described travel pattern will actually cross the 183-day line in any given year - that determination depends on the individual's actual day count each year.

What this means for you

Out-of-state owners of a New York seasonal or vacation home

Buying a New York vacation property that you use only part of the year - and leave vacant the rest, aside from occasional use by family or friends - is enough, by itself, to create a "permanent place of abode" in New York. Vacancy during the off months does not defeat that classification. That means a permanent place of abode is essentially a fixed fact once you own the property; it does not depend on how often you actually stay there. But owning such a property does not automatically make you a New York resident or subject you to tax on all of your income. The second, independent trigger - spending more than 183 days in New York in that specific year - has to also be met before full New York resident taxation applies. If you keep your annual New York visits below the 183-day threshold, you remain a nonresident taxed only on your New York-source income, even though you own and periodically use a New York home.

Accountants and tax professionals tracking clients' day counts

Because the permanent-place-of-abode prong will typically be satisfied automatically once a client buys and regularly uses a New York vacation property, the residency determination each year effectively turns on the 183-day count. You should help clients maintain contemporaneous records of their New York physical presence (arrival/departure dates, partial days, etc.) for every taxable year, since a client's residency status - and therefore whether all their income or only their New York-source income is taxable in New York - can change from year to year depending solely on how many days they spend in the state, even though the underlying property ownership doesn't change.

Common questions

Q: Does simply owning a New York vacation co-op make someone a New York resident?
A: No. Owning and periodically using the co-op will make it a "permanent place of abode," but that is only one half of the statutory residency test. The individual must also spend more than 183 days in New York during that taxable year to be treated as a resident for that year.

Q: Does it matter that the co-op will be vacant most of the year?
A: No. The Department expressly held that it is "immaterial" that the apartment sits vacant for much of the year (aside from occasional gratuitous use by friends or family). Seasonal use is enough to "permanently maintain" a dwelling under 20 NYCRR § 105.20(e).

Q: Based on the facts described (visits mid-May through September, co-op used June through September), does the opinion conclude whether this individual will or won't be a New York resident?
A: No. The opinion sets out the conditional two-part legal test but does not itself count the individual's actual days in New York or resolve whether any particular year's travel pattern crosses the 183-day threshold. That is a factual determination the individual (or their tax preparer) must make year by year.

Q: What happens in a year where the individual spends 183 days or fewer in New York?
A: The individual is treated as a nonresident for that year, even though the co-op is still a permanent place of abode. As a nonresident, they are taxed only on New York-source income under Tax Law § 631, which is the numerator of the tax-allocation fraction in Tax Law § 601(e), rather than on all of their income.

Q: Can residency status change from year to year for the same taxpayer and the same property?
A: Yes. Because the permanent-place-of-abode fact stays constant once the property is purchased and used seasonally, the individual's resident/nonresident status for any given year depends entirely on whether their aggregate New York day count for that specific year exceeds 183 days.

Q: What New York law governs this two-part test?
A: Tax Law § 605(b) defines resident and nonresident individuals. 20 NYCRR § 105.20(a) restates the statutory-residency test (permanent place of abode for substantially all of the year, plus more than 183 days in New York), and § 105.20(e) defines "permanent place of abode."

Citations and references

• Tax Law § 605(b) - defines a "resident individual" as either domiciled in New York or, if not domiciled, as maintaining a permanent place of abode in New York and spending more than 183 days of the year there
• Tax Law § 601(e) - tax allocation fraction; New York-source income is the numerator for nonresidents
• Tax Law § 631 - determines the New York-source income of a nonresident individual
• 20 NYCRR § 105.20(a) - a non-domiciliary is taxable as a resident when maintaining a New York permanent place of abode for substantially all of the taxable year and spending more than 183 days in New York
• 20 NYCRR § 105.20(e) - defines "permanent place of abode" as a dwelling place permanently maintained by the taxpayer, regardless of ownership

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1994.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a94_14i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-94 (14) I
Income Tax
January 4, 1995

Taxpayer Services Division
Technical Services Bureau
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I940810C

On August 10, 1994, a Petition for Advisory Opinion was received from
Freundlich & Company, 425 Park Avenue, New York, New York 10022.
The issue raised by Petitioner, Freundlich & Company, is whether, based on
the facts stated below, an individual would be subject to New York State personal
income tax for taxable year 1994 and subsequent sequential tax years.
The individual lives in, is a resident of and is domiciled in the State of
Florida. The individual has continuously lived in, has been a resident of and has
been domiciled in Florida for the last 15 years. All of the indicia of domicile,
including but not limited to, voter registration, driver's license, ownership of
condominium apartment in Florida, bank and brokerage accounts, etc. have been in
or from Florida.
The individual usually comes to New York State, or other northern states,
for the period mid-May through September.
At present, the individual is
considering the purchase of a cooperative apartment in the County of Queens, City
of New York. The individual would personally stay in such apartment from June
through September. Other than an occasional gratuitous use by friends or family,
the apartment would be vacant the remainder of the year.
Moreover, the
individual would not be physically present in New York State at any other time
during the year.
Section 605(b) of the Tax Law defines a resident and nonresident individual
as follows:
(1) Resident individual. A resident individual means an individual:
(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 ...
(2) Nonresident individual.
A nonresident individual means an
individual who is not a resident or a part-year resident.
Section 105.20(a) of the Personal Income Tax Regulations provides that an
individual who is not domiciled in New York State is taxable as a resident when
such individual maintains a permanent place of abode for substantially all of the
taxable year (generally, the entire taxable year disregarding small portions of
TP-9 (9/88)

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TSB-A-94 (14) I
Income Tax
January 4, 1995

such year) in New York State and spends in the aggregate more than 183 days of
the taxable year in New York State.
Section 105.20(e) of the Personal Income Tax Regulations defines a
permanent place of abode as 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.
Herein, the individual is not domiciled in New York State, but when the
individual purchases a cooperative apartment in Queens, such cooperative
apartment will be a permanent place of abode pursuant to section 105.20(e) of the
Personal Income Tax Regulations. (It is immaterial that it will be vacant a
portion of the taxable year.) Therefore, the individual will be considered a
resident of New York State, pursuant to section 605(b) of the Tax Law and section
105.20(a) of the Personal Income Tax Regulations, for any taxable year the
individual maintains the permanent place of abode for substantially all of the
taxable year, and spends in the aggregate more than 183 days of the taxable year
in New York State. For any such taxable year the individual will be subject to
personal income tax under Article 22 of the Tax Law.
Where the individual does not spend in the aggregate more than 183 days of
the taxable year in New York State or does not maintain the permanent place of
abode for substantially all of such taxable year, the individual will be
considered a nonresident of New York State for such taxable year.
As a
nonresident of New York State, the individual will be subject to personal income
tax for each taxable year that the individual has taxable income derived from
sources in New York State (New York source income). For determining the New York
source income of a nonresident individual, see section 631 of the Tax Law. Such
New York source income is the numerator of the tax allocation fraction contained
in section 601(e) of the Tax Law.

DATED: January 4, 1995

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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