The New York State Tax Appeals Tribunal reversed an administrative law judge determination and held that an individual was not a statutory resident of New York in 2014 because he did not maintain a permanent place of abode in New York for 11 months of the year.

On audit, the Department of Taxation and Finance asserted that the individual qualified as a statutory resident and issued an assessment for New York State personal income tax, in addition to amounts paid by the individual as a part-year resident.

In 2014, a statutory resident was defined as a person who was not domiciled in New York State but who (1) maintained a permanent place of abode in the state for substantially all of the taxable year, and (2) spent at least 183 days in the state during the taxable year.

The Tribunal noted that the Department’s Nonresident Audit Guidelines for 2014 stated that the Department considers “substantially all of the taxable year” to mean more than 11 months. The Tribunal found that the individual maintained a permanent place of abode in New York for the first 10 months of the year by renting an apartment in New York City, but did not maintain a permanent place of abode in New York during either of the last two months of the year. The Tribunal acknowledged that the individual stayed with a friend for an additional month in New York City, but that the individual lacked a legal right to the friend’s dwelling, and that the living arrangement was “brief and clearly temporary.” In addition, the Tribunal acknowledged that the individual purchased an apartment in New York City in December 2014, but that use of the residence did not begin until January 2015. Thus, the Tribunal held that the individual did not maintain a permanent place of abode in New York for “substantially all of the taxable year” and, therefore, was not a statutory resident in 2014.

Matter of Joseph Pilaro and Joe Gorrie, DTA No. 829204 (N.Y.S. Tax App. Trib. Aug. 18 2022).