A resident individual for New York State income tax purposes generally is an individual who (1) is domiciled in New York State or (2) maintains a permanent place of abode in New York State and spends more than 183 days of the taxable year in the state (a “statutory resident”). The New York Court of Appeals, the highest court in New York, in Gaied v. New York State Tax Appeals, ruled that to qualify as a statutory resident, there must be some basis to conclude that the permanent place of abode was used as the taxpayer’s residence.

In Gaied, the taxpayer was domiciled in New Jersey but worked in and owned a multifamily apartment building in New York State for investment purposes and, in part, as a residence for his parents. While the taxpayer insisted that he never lived or maintained any personal effects at his parents’ apartment, he paid the bills and maintained a telephone number for the apartment. The taxpayer had keys to the apartment but contended he never had unfettered access to it. He stayed at the apartment at his parents’ occasional request to assist with their medical needs and slept on the couch. The New York State Department of Taxation and Finance argued that to qualify as a statutory resident, a taxpayer does not have to actually dwell in the permanent place of abode, only maintain it. The New York Court of Appeals determined that the taxpayer must himself have a residential interest in the property to have maintained a permanent place of abode to be a New York statutory resident. The court remanded the case to the lower court to resolve whether the taxpayer used the apartment as a residence.