If an out-of-state mother rents or buys a New York City apartment for the roughly four years her minor son attends a religious high school there, and as a result they spend more than 183 days a year in New York City, does either of them become a New York statutory resident for income tax purposes?

Plain-English summary

Petitioner, Jan Groveman, was domiciled in Tennessee with her husband and two children, an observant Orthodox Jewish family long rooted in that community. Because their local Orthodox community had no suitable religious high school, Petitioner and her husband wanted their fourteen-year-old son to attend Ramaz, a combined religious and secular day school (not a boarding school) in New York City. Since he couldn't live alone in the city, Petitioner proposed to rent or buy a New York City apartment and live there with him during the school year for roughly the four years he would attend, returning to Tennessee for school vacations and whenever religious travel restrictions (no travel from Friday sundown through Saturday, plus other holidays) allowed. Because of that schedule, Petitioner and her son were likely to spend more than 183 days a year in New York City. Petitioner had no New York employment and no New York income beyond nonresident-filed gains and losses from minority partnership interests in New York real estate; her husband would remain in Tennessee working in the family business and would not spend more than 183 days in New York.

The Department applied Tax Law § 605(b)(1)(B), under which someone not domiciled in New York is still a "resident individual" (a statutory resident) if they maintain a permanent place of abode in New York and spend more than 183 days of the year there. Regulation 20 NYCRR 105.20(e)(1) carves out an exception: a place of abode is not "permanent" if it is maintained only during a temporary stay for the accomplishment of a particular purpose. "Temporary" means a fixed and limited period (presumed to be three years or less, though the facts can override that presumption), as opposed to a stay of indefinite duration. "Particular purpose" means a specific assignment with readily ascertainable and specific goals and a clear endpoint - the regulation's own examples are an employee sent to a New York office for a fixed period before returning to their permanent post, or someone sent to install a piece of equipment and then leave.

Applying that framework, the Department held that Petitioner's and her son's stay, although in an apartment that is technically a "place of abode," was both temporary (fixed at the four years remaining in the son's high school education) and for a particular purpose (his religious high school education, and for Petitioner, providing parental care to her minor son while he attended a non-boarding school). The apartment therefore did not become a "permanent place of abode" under 20 NYCRR 105.20(e)(1). As a result, neither Petitioner nor her son would be deemed statutory residents of New York under Tax Law § 605(b)(1)(B), even though they would spend more than 183 days a year in New York City during those four years. Petitioner would continue to be treated as a nonresident, filing a nonresident return with her husband and reporting only her New York-source income.

What this means for you

Parents and families maintaining a New York apartment for a child's schooling

If you're keeping a place of abode in New York solely so a minor child can attend a specific school for a fixed and foreseeable period - and you'll leave once that schooling ends - the days you spend there don't automatically make you a statutory resident, even if you cross 183 days in a year. What matters is whether the arrangement has both a defined end point and a specific, non-open-ended reason for being there. Keep documentation of the fixed timeframe (e.g., years remaining until graduation) and the specific purpose (the schooling itself, or supervising a minor who cannot live there alone), since those are exactly the facts the Department relied on here.

Out-of-state taxpayers weighing the 183-day statutory residency trap

The 183-day count is only half of the statutory residency test under Tax Law § 605(b)(1)(B); the other half is whether you maintain a "permanent place of abode" at all. This opinion confirms that a dwelling held only for a temporary stay tied to a particular purpose - with a presumptively three-year (or otherwise fixed and ascertainable) horizon - never becomes "permanent" under 20 NYCRR 105.20(e)(1), no matter how many days you spend there. If your reason for being in New York lacks a specific, foreseeable conclusion, however, this exception won't apply and the days you spend there could push you into statutory residency.

Common questions

Q: What made this four-year New York City apartment "temporary" rather than permanent?
A: Its duration was tied to a fixed and ascertainable event - the number of years remaining until Petitioner's son finished high school at Ramaz - rather than being open-ended. The regulation presumes a stay of three years or less is temporary, but also allows facts and circumstances (like a specific, foreseeable end point) to establish temporariness even outside that presumption.

Q: Why did it matter that Ramaz was not a boarding school?
A: Because the son couldn't live in New York City on his own at fourteen, someone had to live there with him. That need is exactly why Petitioner's presence in New York had a "particular purpose" - not general life or work in New York, but specifically providing parental care to a minor attending a non-boarding school.

Q: Does simply spending more than 183 days in New York automatically make someone a statutory resident?
A: No. Tax Law § 605(b)(1)(B) requires both elements: spending more than 183 days in New York AND maintaining a "permanent place of abode" there. If the place of abode isn't "permanent" under 20 NYCRR 105.20(e)(1) - because it's held only for a temporary stay for a particular purpose - the 183-day count alone doesn't trigger residency.

Q: What is the "particular purpose" analog to the equipment-installation example in the regulation?
A: The regulation illustrates "particular purpose" with an employee sent to install equipment and then leave once installation is complete - a specific, ascertainable task with a clear conclusion. Here, the analogous specific and ascertainable goal was completing the son's high school education at Ramaz; once he graduated (or a suitable school became available near home), Petitioner intended to give up the apartment.

Q: Did Petitioner's husband or daughter have any New York residency exposure under this opinion?
A: The opinion addresses only Petitioner and her son. Her husband was expected to stay in Tennessee working full time and not exceed 183 days in New York. Her daughter had already graduated from Ramaz (having lived with another family while attending) and isn't part of the holding.

Q: Does Petitioner's New York income change as a result of this ruling?
A: No. Petitioner continues to file as a New York nonresident with her husband, reporting only her New York-source income - the gains and losses from her minority partnership interests in New York real estate. The ruling confirms she is not taxed as a resident on income from outside New York.

Citations and references

• Tax Law § 605(b)(1)(B) - defines a "resident individual" to include someone not domiciled in New York who maintains a permanent place of abode in New York and spends more than 183 days of the year there
• Tax Law § 605(b)(2) - defines a "nonresident individual" as one who is not a resident or part-year resident
• 20 NYCRR 105.20(e)(1) - a place of abode is not "permanent" if maintained only during a temporary stay for the accomplishment of a particular purpose; defines "temporary" (fixed and limited period, presumptively three years or less) and "particular purpose" (a specific assignment with ascertainable, specific goals and a conclusion)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1997.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a97_10i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-97(10)I
Income Tax

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I971210A

On December 10, 1997, a Petition for Advisory Opinion was received from Jan
Groveman, c/o Maria T. Jones, Esq., Kramer, Levin, Naftalis & Frankel, 919 Third
Avenue, New York, New York 10022.
The issue raised by Petitioner, Jan Groveman, is whether she will be
considered to have a place of abode in New York State only for a temporary stay
for the accomplishment of a particular purpose, and therefore will not be
considered a resident of New York State for personal income tax purposes under
Article 22 of the Tax Law, if she is present in New York solely to care for her
minor son during the school year.
Petitioner submits the following facts as the basis for this Advisory
Opinion.
Petitioner is domiciled in Tennessee where her family has lived since the
early 1900's. Her husband is employed in the family business originally started
by Petitioner's grandfather and father. Most of the members of Petitioner's
immediate family live in the same area of Tennessee. The Petitioner and her
husband own a substantial home in Tennessee where they live with their two
children, a daughter, age seventeen and a son, age fourteen.
Petitioner's
grandfather also lives with her. Petitioner and her husband are well-known and
active members of their religious and secular local community.
Petitioner and her family are observant orthodox Jews.
The observant
orthodox community where Petitioner and her family live is not large enough to
support a suitable religious high school. For this reason, Petitioner and her
husband wish their son to be educated at Ramaz, a school located in New York
City, where he can receive an appropriate religious and secular education.
Petitioner's daughter attended this school and graduated in June. Ramaz is not
a boarding school.
Petitioner's daughter lived with another family while
attending school; however, similar arrangements are not appropriate for her son.
Since her son is only fourteen and cannot live in New York City by himself,
Petitioner proposes to rent or buy an apartment in New York City near the school
and stay with him there when school is in session. She and her son will return
to their home in Tennessee during school vacations and during any religious
holidays when travel will be possible.
Because of their religious beliefs,
Petitioner and her son cannot travel on Fridays after sundown, on Saturdays, or
on numerous other religious holidays, all of which begin at sundown on the day
before. Therefore, they generally will be unable to return to Tennessee for the
weekend and for other religious holidays.
As a result, it is likely that
Petitioner and her son will be in New York City more than 183 days in a taxable
year.

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Petitioner currently files a New York nonresident return with her husband
to report the gains and losses from certain minority partnership interests in
real estate located in New York. Petitioner has no other income from New York
sources and will not be employed in New York or elsewhere, other than as a
mother.
Petitioner's husband will not regularly accompany Petitioner to New York
and will not be in New York more than 183 days in a taxable year as he is
employed full time at the family's business in Tennessee.
Upon her son's graduation from high school in four years, or if a suitable
religious high school were to become available within daily commuting distance
of Petitioner's home in Tennessee, Petitioner intends to relinquish the apartment
in New York as she will have no further use for it.
Section 605(b)(1)(B) of the Tax law provides that a "resident individual"
includes an individual who is not domiciled in New York State but maintains a
permanent place of abode in New York State and spends in the aggregate more than
183 days of the taxable year in New York State, unless the individual is in
active service in the armed forces of the United States.
Section 605(b)(2) of the Tax Law provides that a "nonresident individual"
means an individual who is not a resident or a part-year resident.
Section 105.20(e)(1) of the Personal Income Tax Regulations ("Regulations")
defines a "permanent place of abode" as a dwelling place permanently maintained
by the taxpayer, whether or not owned by the taxpayer. However, a place of
abode, whether in New York State or elsewhere, is not deemed permanent if it is
maintained only during a temporary stay for the accomplishment of a particular
purpose. For example, an individual domiciled in another state may be assigned
to the individual's employer's New York State office for a fixed and limited
period, after which the individual is to return to the individual's permanent
location. If the individual takes an apartment in New York State during this
period, the individual is not deemed a resident, even though the individual
spends more than 183 days of the taxable year in New York State, because the
individual's place of abode is not permanent. Such individual will, of course,
be taxable as a nonresident on the individual's income from New York State
sources. However, if the individual's assignment to the individual's employer's
New York State office is not for a fixed or limited period, the individual's New
York State apartment will be deemed a permanent place of abode and the individual
will be a resident if the individual spends more than 183 days of the year in New
York State. For a place of abode to be deemed not permanent, the stay in New
York must be temporary (i.e., for a fixed and limited period) and the stay must
be for the accomplishment of a particular purpose.
Section 105.20(e)(1) of the Regulations contemplates that the term
"temporary" means a fixed and limited period as opposed to a stay of indefinite
duration. An employee's stay in New York will be presumed to be temporary (i.e.
the presence in New York is for a fixed and limited period) if the duration of

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TSB-A-97(10)I
Income Tax

the stay in New York is reasonably expected to last for three years or less, in
the absence of facts and circumstances that would indicate otherwise. In the
alternative, a stay is of indefinite duration if the stay is realistically
expected to last for more than three years, even if it does not actually exceed
three years.
Section 105.20(e)(1) of the Regulations contemplates that the phrase
"particular purpose" means that the individual is present in New York State to
accomplish a specific assignment that has readily ascertainable and specific
goals and conclusions, as opposed to a general assignment with general goals and
conclusions. For example, an individual working in California is assigned to New
York to install a piece of equipment.
Once the equipment is installed, the
individual returns to California. That assignment would be for a particular
purpose.
In this case, Petitioner is domiciled in Tennessee. Petitioner and her
family are observant orthodox Jews and the community where they live is not large
enough to support a suitable religious high school for their 14 year old son.
For this reason, Petitioner and her husband wish their son to be educated at a
school located in New York City. Since this is not a boarding school, Petitioner
proposes to live, with her son, in an apartment in New York City near the school
when school is in session. Petitioner and her son will return to their home in
Tennessee during school vacations and during any religious holidays when travel
will be possible. As a result, it is likely that Petitioner and her son will be
in New York City more than 183 days in a taxable year. When Petitioner's son
graduates from high school in four years, or if a suitable religious high school
were to become available within daily commuting distance of Petitioner's home in
Tennessee, Petitioner intends to relinquish the apartment in New York as she will
have no further use for it.
Petitioner will rent or buy an apartment in New York City for the four
years that she and her son will stay in New York City while he attends high
school in New York City. An apartment in New York City constitutes a place of
abode. However, Petitioner's and her son's stay in New York would be temporary
for the accomplishment of a particular purpose. The stay in New York would be
"temporary" because it is for a fixed and limited period, that is, for the four
years Petitioner's son will be in high school in New York City. The stay in New
York would be for the accomplishment of a "particular purpose". That is, with
respect to Petitioner's son, to attain his high school education at an
appropriate religious high school in New York City. With respect to Petitioner,
her sole purpose for being in New York City is to give parental care to her minor
son while he attends the non-boarding high school in New York City. Petitioner
will not be employed while in New York City. When her son graduates, Petitioner
and her son will have accomplished their purposes for being in New York City and
will relinquish the apartment in New York City and return to Tennessee.

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TSB-A-97(10)I
Income Tax

Pursuant to section 105.20(e)(1) of the Regulations, Petitioner would not
maintain a permanent place of abode in New York State for the four years that
Petitioner's son will attend high school in New York City.
Accordingly,
Petitioner and her son would not be deemed to be statutory residents of New York
State under section 605(b)(1)(B) of the Tax Law even though they would spend more
than 183 days a year in New York State during the four years. Petitioner would
continue to be considered a nonresident of New York State and file a nonresident
return with her husband.

DATED: December 29, 1997

NOTE:

/s/
John W. Bartlett
Deputy Director
Technical Services Bureau
The opinions expressed in Advisory Opinions
are limited to the facts set forth therein.