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What is the correct NYS residency

taxxman02
Level 3

Taxpayer is a SC resident where he lives with his spouse and family. Spouse and family live in SC year round and never travel to NY. He works in NYC @ JFK airport, he stays at his fathers apt in Manhattan when he is in town, and flies home every weekend, .he pays no rent or helps maintain apt. his only income is from his employer. Do I claim him a NYS/NYC resident for tax proposes with SC address IT-201 or claim him a NYS/NYC non resident  IT-203.  

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IRonMaN
Level 15

New York non-resident based on the facts presented.


Slava Ukraini!

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6 Comments 6
IRonMaN
Level 15

New York non-resident based on the facts presented.


Slava Ukraini!
BobKamman
Level 15

I would say he's a NYC resident, and you are confusing "maintenance" with the term "maintaining a residence."  It's not who takes out the trash, it's where he regularly stays when he is not at work.  Does it really make a tax difference, though?  Does he have other income?  

sjrcpa
Level 15

How many days was he in NY/NYC?

More than 183 and NY probably considers him a resident.

He's still a SC resident, too.


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Terry53029
Level 14
Level 14

@BobKamman I would agree with you. The rule for NY is "You are a New York State resident for income tax purposes if:

  • your domicile is New York State, or
  • you maintain a permanent place of abode in New York State for substantially all of the taxable year and spend 184 days or more in New York State during the taxable year, whether or not you are domiciled in New York State for any portion of the taxable year. Note: Any part of a day is a day for this purpose.
  • In general, a permanent place of abode is a residence (a building or structure where a person can live) that:

    • you permanently maintain, whether you own it or not; and
    • is suitable for year-round use.
IRonMaN
Level 15

"you permanently maintain"

But he doesn't maintain, he is just hanging out with dad while he is away from his family.  The 183 day thingy is interesting though.


Slava Ukraini!
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BobKamman
Level 15

"Maintain" is just a synonym for "keep."  That's the word they used in some statute, probably a century ago, to mean "living there and not moving away."  He's obviously a NYC resident for tax purposes, and for "tax home."  No indication that Dad also lives in the Manhattan apartment, but it suggests that the taxpayer may be a long-time New Yorker.  He could be staying at a different hotel in Queens every month and still maintaining his NY residence.  

The NYSCPA website has an interesting article about this definition which cites a case that is different from this one:

"In Matter of Gaied v. Tax App. Trib., 22 N.Y.3d 592 (2014), the taxpayer maintained an apartment exclusively for the use of his elderly parents. The taxpayer did not keep any personal items at the apartment, and in those instances where he did sleep there to take care of his parents’ medical needs, the taxpayer would sleep on the couch because he did not have a bed in the apartment. The Court of Appeals stated that for a taxpayer to qualify as maintaining a permanent place of abode, he must have a “residential interest” in the dwelling, and that “there must be some basis to conclude that the dwelling was utilized as the taxpayer’s residence.” The taxpayer’s relationship to the dwelling did not rise to this level.

Thus, the sheer ability to access and use a dwelling is not enough to establish a residential interest if the taxpayer does not actually do so. It, however, remains possible that a residential interest might be established by virtue of the ability to use a dwelling that is primarily utilized by a family member. Under the guidelines, determination of whether an individual’s use of a residence rises to the requisite level is based—in part—on the size of the dwelling, whether the individual’s personal items are kept there, and the extent of the individual’s use."

https://www.nysscpa.org/most-popular-content/statutory-residency-in-new-york-what-qualifies-as-a-per...