If an out-of-state mother rents or buys a New York City apartment so her minor son can attend a NYC high school, and both spend more than 183 days a year in the city, does she become a New York statutory resident?

Plain-English summary

The Taxpayer and her family are domiciled in Tennessee, where the family has lived since the early 1900s; her husband runs the family business, and most of her immediate family, including her grandfather, live in the same area. The Taxpayer and her family are observant Orthodox Jews, and their local community isn't large enough to support a suitable religious high school. Their older daughter had already attended and graduated from Ramaz, a religious and secular day school (not a boarding school) in New York City, boarding with another family while she did. That arrangement wasn't appropriate for their fourteen-year-old son, so the Taxpayer proposed instead to rent or buy a New York City apartment near the school and live there with him during the school year, returning to Tennessee for vacations and for religious holidays when travel restrictions permit. Because of religious restrictions on Friday-evening, Saturday, and holiday travel, it was likely that both the Taxpayer and her son would spend more than 183 days a year in New York City. The Taxpayer had no New York employment, filing only a nonresident return with her husband to report gains and losses from minority real-estate partnership interests, and her husband would remain in Tennessee, staying under 183 New York days himself. The Taxpayer intended to give up the apartment once her son graduated in four years, or sooner if a suitable religious high school became available within commuting distance of their Tennessee home.

The Department held that even though the New York City apartment was a "place of abode," it did not become a "permanent place of abode" under 20 NYCRR 105.20(e)(1), because the Taxpayer's and her son's stay there was both temporary and for a particular purpose. It was temporary because it was tied to a fixed and limited period - the four remaining years of the son's high school education - rather than a stay of indefinite duration. It was for a particular purpose because the son was there to complete a specific, ascertainable goal (his religious high school education), and the Taxpayer's only reason for being there was to give her minor son parental care while he attended a non-boarding school. Since the apartment was not a permanent place of abode, the 183-day statutory residency test in Tax Law § 605(b)(1)(B) never came into play, and the Taxpayer remained a New York nonresident, continuing to file a nonresident return with her husband reporting only her New York-source partnership real estate income.

This opinion's facts closely mirror those of a companion advisory opinion issued about seven weeks later, naming the petitioner as Jan Groveman and submitted through the same attorney at the same law firm - strongly suggesting the two opinions concern the same underlying family and arrangement, first requested anonymously as an unnamed "Taxpayer" and then resubmitted or reissued with the petitioner identified by name.

What this means for you

Parents maintaining a temporary NYC residence for a child's schooling

If you're an out-of-state family renting or buying a New York City apartment so a minor child can attend a specific school, the fact that you and the child may spend more than 183 days a year in the city does not automatically make you a New York statutory resident. What matters is whether the apartment counts as a "permanent place of abode." If your stay is tied to a fixed and limited period - such as the years remaining until the child finishes school at that particular institution - and your only purpose for being there is that specific, ascertainable goal (rather than an open-ended relocation), the apartment can fall outside the permanent-place-of-abode definition, regardless of day count.

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

The 183-day rule in Tax Law § 605(b)(1)(B) only applies once you already have a permanent place of abode in New York; if you don't have one, the day count is irrelevant to residency status. This opinion shows that a dwelling maintained solely to accomplish a specific, time-limited purpose - like completing a fixed number of years of schooling - may not be "permanent" under 20 NYCRR 105.20(e)(1), even where the arrangement realistically spans several years and involves heavy New York presence.

Common questions

Q: What makes a New York stay "temporary" rather than indefinite under 20 NYCRR 105.20(e)(1)?
A: "Temporary" means the stay is for a fixed and limited period rather than an indefinite duration. A stay reasonably expected to last three years or less is presumed temporary absent contrary facts; a stay realistically expected to exceed three years is treated as indefinite even if it ultimately doesn't. Here, the stay was tied to the son's remaining four years of high school - a fixed, ascertainable endpoint - which supported finding it temporary.

Q: Why did it matter that Ramaz is not a boarding school?
A: Because Ramaz wasn't a boarding school, the son (only fourteen) could not live in New York City on his own the way his older sister had while boarding with another family. That made the mother's presence in New York necessary to give him parental care, which the Department treated as the Taxpayer's own "particular purpose" for being there, distinct from the son's purpose of attaining his education.

Q: Does spending more than 183 days a year in New York, by itself, create statutory residency?
A: No. Tax Law § 605(b)(1)(B) requires both a permanent place of abode in New York and more than 183 days spent in New York in the taxable year. Here, the Department found no permanent place of abode existed, so the 183-day threshold - though satisfied - never triggered statutory residency.

Q: What counts as a "particular purpose" under the regulation?
A: A particular purpose is a specific assignment with readily ascertainable and specific goals and a foreseeable conclusion, as opposed to a general, open-ended assignment. 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 once installation is complete. The son's high school education, with a graduation date fixing the endpoint, fit this same mold.

Q: Did the Taxpayer's New York-source income change the analysis?
A: No. The Taxpayer already filed a nonresident return with her husband reporting gains and losses from minority real estate partnership interests located in New York, and had no other New York income or New York employment. That nonresident filing status continued unchanged; the advisory opinion only confirmed that the New York City apartment did not convert her into a resident taxed on all her income.

Q: What happens if the son doesn't graduate on schedule, or the apartment arrangement drags on longer than expected?
A: The opinion's conclusion rests on the stay being fixed and limited to the four years of high school (or ending sooner if a local religious school became available). If the arrangement became open-ended or continued well beyond that fixed period without a specific ascertainable endpoint, the "temporary" and "particular purpose" elements could no longer be satisfied, and the apartment could be recharacterized as a permanent place of abode.

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 taxable year in New York
• 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) - defines "permanent place of abode" and excludes a dwelling maintained only during a temporary stay for the accomplishment of a particular purpose, with examples of a fixed-period employee assignment and an equipment-installation assignment
• TSB-A-97(10)I - a companion advisory opinion issued about seven weeks later on nearly identical facts, naming the petitioner Jan Groveman and submitted through the same attorney

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_8i.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-97(8)I
Income Tax

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I970707B

On July 7, 1997, a Petition for Advisory Opinion was received from Maria
T. Jones, Esq., Kramer, Levin, Naftalis & Frankel, 919 Third Avenue, New York,
New York 10022.
The issue raised by Petitioner, Maria T. Jones, Esq., is whether a taxpayer
("Taxpayer") who is present in New York solely to care for her minor son during
the school year, 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.
Petitioner submits the following facts as the basis for this Advisory
Opinion.
The Taxpayer 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 the Taxpayer's grandfather and father. Most of the members of the Taxpayer's
immediate family live in the same area of Tennessee.
The Taxpayer 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. The Taxpayer's
grandfather also lives with her. The Taxpayer and her husband are well-known and
active members of their religious and secular local community.
The Taxpayer and her family are observant orthodox Jews. The observant
orthodox community where the Taxpayer and her family live is not large enough to
support a suitable religious high school. For this reason, the Taxpayer 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. The
Taxpayer's daughter attended this school and graduated in June. Ramaz is not a
boarding school.
The Taxpayer's daughter lived with another family while
attending school; however, similar arrangements are not appropriate for the son.
Since the son is only fourteen and cannot live in New York City by himself,
the Taxpayer 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, the Taxpayer 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 the Taxpayer and her son will be in New York City more than 183 days
in a taxable year.

-2­
TSB-A-97(8)I
Income Tax

The Taxpayer 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. The Taxpayer has no other income from New York
sources and will not be employed in New York or elsewhere, other than as a
mother.
The Taxpayer's husband will not regularly accompany the Taxpayer 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 the 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 the Taxpayer's home in Tennessee, the Taxpayer 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.

-3­
TSB-A-97(8)I
Income Tax

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
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, Taxpayer is domiciled in Tennessee. Taxpayer 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, Taxpayer and her husband wish their son to be educated at a school
located in New York City. Since this is not a boarding school, Taxpayer proposes
to live, with her son, in an apartment in New York City near the school when
school is in session.
Taxpayer 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 Taxpayer and her son will be
in New York City more than 183 days in a taxable year. When Taxpayer'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 Taxpayer's home in
Tennessee, Taxpayer intends to relinquish the apartment in New York as she will
have no further use for it.
Taxpayer 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, Taxpayer'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 Taxpayer'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 Taxpayer's son, to attain his high school education at an appropriate
religious high school in New York City.
With respect to Taxpayer, 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. Taxpayer will
not be employed while in New York City. When the son graduates, Taxpayer 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.

-4­
TSB-A-97(8)I
Income Tax

Pursuant to section 105.20(e)(1) of the Regulations, Taxpayer would not
maintain a permanent place of abode in New York State for the four years that
Taxpayer's son will attend high school in New York City. Accordingly, Taxpayer
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. Taxpayer would continue to
be considered a nonresident of New York State and file a nonresident return with
her husband.

DATED: November 4, 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.