Tax Law, § 605(b)(1)
(a)
General.
An individual may be a resident of New York State for
personal income tax purposes, and taxable as a resident, even though such
individual would not be deemed a resident for other purposes. As used in this
Subchapter, the term resident individual includes:
(1) all persons domiciled in New York State,
subject to the exceptions set forth in subdivision (b) of this section;
and
(2) any individual (other than
an individual in active service in the Armed Forces of the United States) who
is not domiciled in New York State, but who maintains a permanent place of
abode for substantially all of the taxable year (generally, the entire taxable
year disregarding small portions of such year) in New York State and spends in
the aggregate more than 183 days of the taxable year in New York
State.
(b)
Certain persons not deemed residents although domiciled in New York
State. Any person domiciled in New York State is a resident for
personal income tax purposes for a specific taxable year, unless for that year
such person satisfies all three of the requirements in paragraph (1) or all
three requirements in paragraph (2) of this subdivision:
(1)
(i)
such person maintains no permanent place of abode in New York State during such
year;
(ii) such person maintains a
permanent place of abode outside New York State during such entire year;
and
(iii) such person spends in the
aggregate not more than 30 days of the taxable year in New York State;
or
(2)
(i) within any period of 548 consecutive days
such person is present in a foreign country or countries for at least 450
days;
(ii) during such period of
548 consecutive days such person is not present in New York State for more than
90 days and does not maintain a permanent place of abode in New York State at
which such person's spouse (unless such spouse is legally separated) or minor
children are present for more than 90 days; and
(iii) during the nonresident portion of the
taxable year with or within which such period of 548 consecutive days begins
and the nonresident portion of the taxable year with or within which such
period of 548 consecutive days ends, such person is present in New York State
for a number of days which does not exceed an amount which bears the same ratio
to 90 as the number of days contained in such portion of the taxable year bears
to 548.
As long as an individual who is domiciled in New York
State continues to meet the requirements of either paragraph (1) or paragraph
(2) of this subdivision, such individual will be considered a nonresident of
New York State for personal income tax purposes. However, where such individual
fails to meet those conditions, such individual will be subject to New York
State personal income tax as a resident. Where an individual domiciled in New
York State claims to be a nonresident for any taxable year (or portion
thereof), the burden is upon such individual to show that such individual
satisfied the requirements set forth in paragraph (1) or paragraph (2) of this
subdivision.
Example:
B, a single individual, is domiciled in New York State.
During the period July 2, 1988 through December 31, 1989 (a period of 548
consecutive days), B was present in a foreign country 463 days.
During the above period, B was present in New York
State a total of 50 days, 15 days during the period July 2, 1988 through
December 31, 1988, and 35 days during 1989. Since B was present in a foreign
country 463 days, B meets the requirements of subparagraph (i) of paragraph (2)
of this subdivision.
B also meets the requirements of subparagraph (ii) of
paragraph (2) of this subdivision, because the total of 50 days B was present
in this State during this 548 consecutive day period is less than the maximum
of 90 days allowed.
To ascertain whether B meets the requirements of
subparagraph (iii) of paragraph (2) of this subdivision, B must determine if
the number of days present in New York State during the period July 2, 1988
through December 31, 1988 exceeds the maximum allowed for the nonresident
portion of the taxable year within which the 548 consecutive day period began.
The maximum number of days B may be present in New York State during the period
July 2, 1988 through December 31, 1988 is 30, determined by making the
following computation:
| 183 (number of days in the nonresident portion of
the taxable year) |
/ |
548 × 90 |
= |
30 (maximum number of days B may spend in New
York State during the period July 2, 1988 through December 31, 1988) |
Since B was present in New York State 15 days during
the period July 2, 1988 through December 31, 1988, B did not exceed the maximum
of 30 days allowed for this period. Therefore, B meets the requirements of
subparagraph (iii) of paragraph (2) of this subdivision.
Based on the information contained in this example, B
meets all the requirements of paragraph (2) of this subdivision and would be
considered a nonresident of New York State for income tax purposes during the
period July 2, 1988 through December 31, 1989. Therefore, B would be required
to file as a part-year resident of New York State for the taxable year 1988 and
as a nonresident of New York State for the taxable year 1989.
(c)
Rules for
days within and without New York State. In counting the number of days
spent within and without New York State, presence within New York State for any
part of a calendar day constitutes a day spent within New York State, except
that such presence within New York State may be disregarded if such presence is
solely for the purpose of boarding a plane, ship, train or bus for travel to a
destination outside New York State, or while traveling through New York State
to a destination outside New York State. Any person domiciled outside New York
State who maintains a permanent place of abode within New York State during any
taxable year, and claims to be a nonresident, must keep and have available for
examination by the Department of Taxation and Finance adequate records to
substantiate the fact that such person did not spend more than 183 days of such
taxable year within New York State.
(d)
Domicile.
(1) Domicile, in general, is the place which
an individual intends to be such individual's permanent home - the place to
which such individual intends to return whenever such individual may be
absent.
(2) A domicile once
established continues until the individual in question moves to a new location
with the bona fide intention of making such individual's fixed and permanent
home there. No change of domicile results from a removal to a new location if
the intention is to remain there only for a limited time; this rule applies
even though the individual may have sold or disposed of such individual's
former home. The burden is upon any person asserting a change of domicile to
show that the necessary intention existed. In determining an individual's
intention in this regard, such individual's declarations will be given due
weight, but they will not be conclusive if they are contradicted by such
individual's conduct. The fact that a person registers and votes in one place
is important but not necessarily conclusive, especially if the facts indicate
that such individual did this merely to escape taxation.
(3) Domicile is not dependent on citizenship;
that is, an immigrant who has permanently established such immigrant's home in
New York State is domiciled here regardless of whether such immigrant has
become a United States citizen or has applied for citizenship. However, a
United States citizen will not ordinarily be deemed to have changed such
citizen's domicile by going to a foreign country unless it is clearly shown
that such citizen intends to remain there permanently. For example, a United
States citizen domiciled in New York State who goes abroad because of an
assignment by such citizen's employer or for study, research or recreation,
does not lose such citizen's New York State domicile unless it is clearly shown
that such citizen intends to remain abroad permanently and not to return. (See
subdivision (b) of this section for certain persons not deemed residents of New
York State for a specific taxable year although domiciled in New York
State.)
(4) A person can have only
one domicile. If a person has two or more homes, such person's domicile is the
one which such person regards and uses as such person's permanent home. In
determining such person's intentions in this matter, the length of time
customarily spent at each location is important but not necessarily conclusive.
It should be noted however, as provided by paragraph (2) of subdivision (a) of
this section, a person who maintains a permanent place of abode for
substantially all of the taxable year in New York State and spends more than
183 days of the taxable year in New York State is taxable as a resident even
though such person may be domiciled elsewhere.
(5)
(i)
Husband and wife. Generally, the domicile of a husband and wife are the same.
However, if they are separated in fact, they may each, under some
circumstances, acquire their own separate domiciles even though there is no
judgment or decree of separation. Where there is a judgment or decree of
separation, a husband and wife may acquire their own separate
domicile.
(ii) Children. A child's
domicile ordinarily follows that of such child's parents, until such child
reaches the age of self-support and actually establishes his or her own
separate domicile. Where the mother and father have separate domiciles, the
domicile of the child is generally the domicile of the parent with whom such
child lives for the major portion of the year. The domicile of a child for whom
a guardian has been appointed is determined by the facts and circumstances of
the situation and is not necessarily determined by the domicile of the
guardian.
(6) Members of
the Armed Forces. Section 514 of the Federal Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, (
50 U.S.C. Appx. § 574) provides that for
purposes of taxation, an individual in the Armed Forces of the United States is
not deemed to have lost such individual's domicile in any state solely by
reason of being absent therefrom in compliance with military orders. Thus, such
Federal law insures that an individual in the Armed Forces of the United States
domiciled in New York State would not be deemed a domiciliary for income tax
purposes in another state in which such individual is stationed. On the other
hand, an individual in the Armed Forces of the United States domiciled in
another state who is stationed in New York State would not be deemed a
domiciliary, for personal income tax purposes, of New York State. The rule is,
generally speaking, that the domicile of a person is in no way affected by
service in the Armed Forces of the United States. A change of domicile has to
be shown by facts which objectively manifest a voluntary intention to make the
new location a domicile. It is possible for an individual in the Armed Forces
of the United States to change such individual's domicile; however, the
requisite intent is difficult to prove.
(e)
Permanent place of abode.
(1) A permanent place of
abode means a dwelling place of a permanent nature 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. However, a mere camp
or cottage, which is suitable and used only for vacations, is not a permanent
place of abode. Furthermore, a barracks or any construction which does not
contain facilities ordinarily found in a dwelling, such as facilities for
cooking, bathing, etc., will generally not be deemed a permanent place of
abode. A dwelling place maintained by a full-time student enrolled at an
institution of higher education, as defined in section 606 (t)(3) of the Tax Law,
in an undergraduate degree program leading to a baccalaureate degree, and
occupied by the student while attending the institution is not a permanent
place of abode with respect to that student. A full-time
student is an individual who is carrying a minimum courseload in such
program of 12 credit hours per semester for at least two semesters, or the
equivalent, during the individual's taxable year.
(2) The determination of whether an
individual in the Armed Forces of the United States maintains a permanent place
of abode outside New York State is not dependent merely upon whether such
individual lives on or off a military base. This is only one of many factors to
be considered in determining whether a permanent place of abode is being
maintained outside New York State. Some of the other factors include the type
and location of quarters occupied by such individual and members of such
individual's immediate family and how and by whom such quarters are maintained.
Barracks, bachelor officers' quarters, quarters assigned on vessels, etc.,
generally do not qualify as permanent places of abode maintained by an
individual in the Armed Forces of the United States. Further, the maintenance
of a place of abode by an individual in the Armed Forces of the United States
outside New York State will not be considered permanent if it is maintained
only during a duty assignment of a limited or temporary nature.
