James Maertin, C.P.A.

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New York State Residency Rules


Nonresident
You are a New York State nonresident if you were not a resident of New York State for any part of the year.  If you file Form 1040NR (federal nonresident), you could file as a nonresident of New York by claiming that you do not maintain a permanent place of abode in New York and that you are only in New York for a particular purpose during a temporary period.  If you file as a federal tax resident (Form 1040), but you are on a temporary work visa in the U.S., the New York Tax Department will generally take the position that you maintain a permanent place of abode in New York.  In such case, I recommend that you file as a state tax resident.  You may still take the position that you are a nonresident, but your chance of audit or a tax return adjustment is high. 

Resident
You are a New York State resident for income tax purposes if:
Your domicile is not New York State but you maintain a permanent place of abode in New York State for more than 11 months of the year and spend 184 days or more (any part of a day is a day for this purpose) in New York State during the tax year. (In this instance, you must file Form IT-201, Resident Income Tax Return.)  Note: If you maintain a permanent place of abode in New York State but are claiming to be a nonresident for tax purposes, you must be able to provide adequate records to substantiate that you did not spend more than 183 days of the tax year in New York State.  There are exceptions for members of the armed forces; or
Your domicile is New York State. However, even if your domicile is New York, you are not a resident if you meet all three of the conditions in either Group A or Group B as follows:
Group A
1) You did not maintain any permanent place of abode in New York State during the tax year; and
2) You maintained a permanent place of abode outside New York State during the entire tax year; and
3) You spent 30 days or less (any part of a day is a day for this purpose) in New York State during the tax year.
Group B
1) You were in a foreign country for at least 450 days (any part of a day is a day for this purpose) during any period of 548 consecutive days; and
2) You, your spouse (unless legally separated), and minor children spent 90 days or less (any part of a day is a day for this purpose) in New York State during this 548-day period; and
3) During the nonresident portion of the tax year in which the 548‑day period begins, and during the nonresident portion of the tax year in which the 548‑day period ends, you were present in New York State for no more than the number of days which bears the same ratio to 90 as the number of days in such portion of the tax year bears to 548. The following formula illustrates this condition:

Number of days in the                  Maximum number     
nonresident portion        90   =  of days allowed
548                                            in New York State

Domicile is defined as your permanent home, the place you always intend to return to, regardless of where you may be at the present time.  For a person in the U.S. on a temporary visa, domicile is usually their home country.  You can have only one domicile.

A place of abode (apartment or house) is not permanent if you maintain it only during a temporary or limited period of time for the accomplishment of a particular purpose. 

Part-year resident
You are a New York State part-year resident if you meet the definition of resident or nonresident for only part of the year

The difference in tax between filing as nonresident vs. resident

As a resident, you pay state and city tax on all your income.  As a non-resident, you only pay tax on New York source income, which includes earnings from work physically performed in New York State, and income from real property.  You are not liable for city tax.  Generally, if you live in New York City, you will have city tax withheld from each paycheck (as reported on the W-2), which is why you may receive a much larger tax refund (getting all or most of the city tax back) if you file as a nonresident.