Tax Law, § 632(b)(1)(B)
(a)
(1) The
New York adjusted gross income of a nonresident individual includes items of
income, gain, loss and deduction entering into his Federal adjusted gross
income which are attributable to a business, trade, profession or occupation
carried on in New York State.
(2) A
business, trade, profession or occupation (as distinguished
from personal services as an employee) is carried on within New York State by a
nonresident when such nonresident occupies, has, maintains or operates desk
space, an office, a shop, a store, a warehouse, a factory, an agency or other
place where such nonresident's affairs are systematically and regularly carried
on, notwithstanding the occasional consummation of isolated transactions
without New York State. This definition is not exclusive. Business is carried
on within New York State if activities within New York State in connection with
the business are conducted in New York State with a fair measure of permanency
and continuity. A taxpayer may enter into transactions for profit within New
York State and yet not be engaged in a trade or business within New York State.
If a taxpayer pursues an undertaking continuously as one relying on the profit
therefrom for such taxpayer's income or part thereof, such taxpayer is carrying
on a business or occupation. However, see section
132.10
of this Part with regard to the effect of the purchase and sale of property by
a nonresident for such nonresident's own account.
(b) The New York adjusted gross income of a
nonresident individual rendering personal services as an employee includes the
compensation for personal services entering into his Federal adjusted gross
income, but only if, and to the extent that, his services were rendered within
New York State. Compensation for personal services rendered by a nonresident
individual wholly without New York State is not included in his New York
adjusted gross income, regardless of the fact that payment may be made from a
point within New York State or that the employer is a resident individual,
partnership or corporation. Where the personal services are performed within
and without New York State, the portion of the compensation attributable to the
services performed within New York State must be determined in accordance with
sections
132.16
through
132.18
of this Part.
(c) If personal
services are performed within New York State, whether or not as an employee,
the compensation for such services includible in Federal adjusted gross income
constitutes income from New York State sources, regardless of the fact that (1)
such compensation is received in a taxable year after the year in which the
services were performed, or (2) such compensation is received by someone other
than the person who performed the services.
(d)
Pensions or other retirement
benefits constituting an annuity.
(1)
General.
Where an individual formerly employed in New York State
is retired from service and thereafter receives a pension or other retirement
benefit attributable to his former services, the pension or retirement benefit
is not taxable for New York State personal income tax purposes if the
individual receiving it is a nonresident and if it constitutes an
annuity as defined in paragraph (2) of this subdivision. Where
a pension or other retirement benefit does not constitute an annuity, it is
compensation for personal services and, if the individual receiving it is a
nonresident, it is taxable for New York State personal income tax purposes to
the extent that the services were performed in New York State. The term
compensation for personal services as used in the foregoing
sentence includes, but is not limited to, amounts received in connection with
the termination of employment, amounts received upon early retirement in
consideration of past services rendered, amounts received upon retirement for
consultation services, and amounts received upon retirement under a covenant
not to compete. For allocation rules, see section
132.20
of this Part.
(2)
Definition.
To qualify as an annuity, a pension or
other retirement benefit must meet the following requirements:
(i) It must be paid in money only, not in
securities of the employer or other property.
(ii) It must be payable at regular intervals,
at least annually, for the life of the individual receiving it, or over a
period not less than half of such individual's life expectancy as of the date
payments begin. For payments which begin on or after July 1, 1987, an
individual's life expectancy is the expected return multiple shown for the
applicable age in the table entitled "Table V. Ordinary Life Annuities-One
Life-Expected Return Multiples," promulgated under section 1.72 -9 of the
Federal Income Tax Regulations (for payments which began before July 1, 1987,
an individual's life expectancy is the expected return multiple shown for the
applicable age and sex in the table entitled "Table I. Ordinary Life
Annuities-One Life-Expected Return Multiples," promulgated under section 1.72
-9 of the Federal Income Tax Regulations).
(iii) It must be payable:
(a) at a rate which remains uniform during
such life or period; or
(b) at a
rate which varies only with:
(1) the
fluctuation in the market value of the assets from which such benefits are
payable;
(2) the fluctuation in a
specified and generally recognized cost-of-living index; or
(3) the commencement of social security
benefits; or
(c) in such
a manner that the total of the amounts payable is determinable at the annuity
starting date either directly from the terms of the contract or indirectly by
the use of either mortality tables or compound interest computations, or both,
in conjunction with such terms and in accordance with sound actuarial theory.
The term annuity starting date in the case of any contract or
plan is the first day of the first period for which an amount is received as an
annuity by the individual under the contract or plan.
(iv) The individual's right to receive it
must be evidenced by a written instrument executed by his employer, or by a
plan established and maintained by the employer in the form of a definite
written program communicated to his employees.
(v) In the case of a pension or other similar
benefit paid to a nonresident beneficiary of a deceased employee:
(a) where the employee died after retirement,
if the pension or other retirement benefit he was receiving constituted an
annuity, payments to his beneficiary, even though they do not meet the
requirements of subparagraphs (i), (ii) and (iii) of this paragraph, will
constitute an annuity;
(b) if the
employee died before retirement, the pension or other benefit payable to his
beneficiary need not be payable for the life of such beneficiary or for a
period measured by his or her life expectancy, provided that it is payable
pursuant to a plan established and maintained by the employer before the
employee's death, under which a pension or benefit meeting the requirements set
forth in subparagraphs (i) through (iv) of this paragraph would have been
payable to the employee upon his retirement. For the purposes of this clause,
the employee's life expectancy is determined as of the date of his death if he
was then eligible for retirement under the terms of the plan; otherwise, his
life expectancy is determined as of the earliest date when he would have become
eligible for retirement under the plan.
(e)
Prizes, awards and
similar payments.
Prizes, awards and similar payments are derived from or
connected with New York State sources as long as they are incidental to the
nonresident's presence or other activities in New York State.