NY state/city residency issue


G

Gary Goodman

This is different from the Zelinsky case that was decided
Nov 24, 2003.

The main issue is whether or not he is liable for NYC taxes.
My gut says yes, but CCH doesn't have any cases that hit the
point directly.

Client's main residence is in New Hampshire. Wife & kids
there fulltime. He has an apartment in NYC. (Note: NH
doesn't tax earned income, so there is no offsetting credit
to ease the pain.)

Works 4 days a week in NYC. Works from home on Fridays.

Issue: Is he a New York resident? (City / State)

He thinks not because his list of days shows:

Days in: 178
Days out: 52
Vacation: 21
Wknds: 104
Holidays: 10
 
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K

Katie Jaques

Gary Goodman said:
This is different from the Zelinsky case that was decided
Nov 24, 2003.

The main issue is whether or not he is liable for NYC taxes.
My gut says yes, but CCH doesn't have any cases that hit the
point directly.

Client's main residence is in New Hampshire. Wife & kids
there fulltime. He has an apartment in NYC. (Note: NH
doesn't tax earned income, so there is no offsetting credit
to ease the pain.)

Works 4 days a week in NYC. Works from home on Fridays.

Issue: Is he a New York resident? (City / State)

He thinks not because his list of days shows:

Days in: 178
Days out: 52
Vacation: 21
Wknds: 104
Holidays: 10
I would say no, based on those numbers. It seems clear that
his domicile is in NH, so he is, if anything, a statutory
resident of NY/NYC. He meets the first prong of the
statutory definition (maintaining a permanent place of
abode) but not the second prong (spending more than 183 days
there).

Just bear in mind that the 183 days includes all days ANY
PART of which was spent in NY. So the total could add up to
more than 365 days if, for example, he returns to the city
on Sunday evenings, and he is counting the Sundays as
"weekend" days. Those Sundays would also be counted as
"days in" so they would in effect be counted twice.

Also "days in" would include any vacation days or holidays
spent in NY state/city for shopping, theater, etc.

And of course I'm sure you are aware that NY considers 100%
of his compensation, including payment for services
performed at his home in NH, to be NY source income. That's
the Zelinsky issue. Man, if I could write, I'd write a cert
petition on that one to the USSC, if they could only read
..... <G>

Katie in San Diego

The foregoing is intended for educational purposes only and
does not constitute legal or professional advice.
 
A

A.G. Kalman

Gary said:
This is different from the Zelinsky case that was decided
Nov 24, 2003.

The main issue is whether or not he is liable for NYC taxes.
My gut says yes, but CCH doesn't have any cases that hit the
point directly.

Client's main residence is in New Hampshire. Wife & kids
there fulltime. He has an apartment in NYC. (Note: NH
doesn't tax earned income, so there is no offsetting credit
to ease the pain.)

Works 4 days a week in NYC. Works from home on Fridays.

Issue: Is he a New York resident? (City / State)

He thinks not because his list of days shows:

Days in: 178
Days out: 52
Vacation: 21
Wknds: 104
Holidays: 10
Not a New Yorker, but according to their documentation, if
you are domiciled outside of NY and you maintain a permanent
place of abode in NY, you would be a resident if you spend
at least 184 days in NY. You can only have one domicile. It
is the place you call home; the place you intend to return
to every time you leave; the place that contains your
permanent home. In this instance it appears that NH may be
his domicile and NY is where he also has a permanent place
that he maintains. Therefore, if his evidence of only 178
days is authentic, he would not be a NY resident.

Please note, that there are a variety of factors that are
used to determine which place is the taxpayer's domicile.
The fact that his spouse and children reside in NH is only
one factor.
 
G

Gary Goodman

(e-mail address removed) says...
Gary Goodman wrote:
Not a New Yorker, but according to their documentation, if
you are domiciled outside of NY and you maintain a permanent
place of abode in NY, you would be a resident if you spend
at least 184 days in NY. You can only have one domicile. It
is the place you call home; the place you intend to return
to every time you leave; the place that contains your
permanent home. In this instance it appears that NH may be
his domicile and NY is where he also has a permanent place
that he maintains. Therefore, if his evidence of only 178
days is authentic, he would not be a NY resident.

Please note, that there are a variety of factors that are
used to determine which place is the taxpayer's domicile.
The fact that his spouse and children reside in NH is only
one factor.
When we told him that his Fridays couldn't be apportioned as
non-NY days, he wrote the check for the estimated taxes on
his salary. It looks like he will change his withholding so
NYC taxes will be withheld from now on.

His days worked at home count as NY days because there is no
business reason for him to work from home.

Gary
 
A

A.G. Kalman

Gary said:
(e-mail address removed) says...
[snip]
Not a New Yorker, but according to their documentation, if
you are domiciled outside of NY and you maintain a permanent
place of abode in NY, you would be a resident if you spend
at least 184 days in NY. You can only have one domicile. It
is the place you call home; the place you intend to return
to every time you leave; the place that contains your
permanent home. In this instance it appears that NH may be
his domicile and NY is where he also has a permanent place
that he maintains. Therefore, if his evidence of only 178
days is authentic, he would not be a NY resident.

Please note, that there are a variety of factors that are
used to determine which place is the taxpayer's domicile.
The fact that his spouse and children reside in NH is only
one factor.
When we told him that his Fridays couldn't be apportioned as
non-NY days, he wrote the check for the estimated taxes on
his salary. It looks like he will change his withholding so
NYC taxes will be withheld from now on.

His days worked at home count as NY days because there is no
business reason for him to work from home.
I'm going to let Katie tackle the last part of your comment.
For sure, the compensation is NY source income when he is
working from the home in NH. I have no idea whether NY
would or could count those days as being "present in NY" for
purposes of the 184 day test, but in all honesty I would
think not.
 
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B

Benjamin Yazersky CPA

A.G. Kalman said:
Gary said:
(e-mail address removed) says...
[snip]
Not a New Yorker, but according to their documentation, if
you are domiciled outside of NY and you maintain a permanent
place of abode in NY, you would be a resident if you spend
at least 184 days in NY. You can only have one domicile. It
is the place you call home; the place you intend to return
to every time you leave; the place that contains your
permanent home. In this instance it appears that NH may be
his domicile and NY is where he also has a permanent place
that he maintains. Therefore, if his evidence of only 178
days is authentic, he would not be a NY resident.

Please note, that there are a variety of factors that are
used to determine which place is the taxpayer's domicile.
The fact that his spouse and children reside in NH is only
one factor.
When we told him that his Fridays couldn't be apportioned as
non-NY days, he wrote the check for the estimated taxes on
his salary. It looks like he will change his withholding so
NYC taxes will be withheld from now on.

His days worked at home count as NY days because there is no
business reason for him to work from home.
I'm going to let Katie tackle the last part of your comment.
For sure, the compensation is NY source income when he is
working from the home in NH. I have no idea whether NY
would or could count those days as being "present in NY" for
purposes of the 184 day test, but in all honesty I would
think not.
NY does not recognize working at home as a day out of the
state. They have taken this issue to court and have
repeatedly won on the issue.
 
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