Nondomiciliary’s Presence In New York State for Part of a Day Constitutes Presence for a “Day” for Income Tax Purposes

The Third Department determined presence in New York State for part of a day constitutes presence for a “day” when calculating the number of days a nondomiciliary resides in New York State for income tax purposes:

The Administrative Law Judge determined that, as per 20 NYCRR 105.20 (c), each of the 26 partial days constituted a day in New York under the statute, bringing Zanetti's total days in New York over 183 and, thus, resulting in petitioners being residents of this state for income tax purposes (see Tax Law § 605 [b] [1] [B]). …

The residency classification can have significant consequences since New York residents pay income tax on their worldwide income whereas nonresidents are taxed only on their New York source income (see Tax Law §§ 612, 631…). A nondomiciliary may be considered a New York resident for income tax purposes if he or she maintains a permanent place of abode in this state and spends in excess of 183 days of the year here (see Tax Law § 605 [b] [1] [B]…). The permanent place of abode element is not at issue here. With regard to days in New York, the pertinent regulation of respondent Commissioner of Taxation and Finance provides that, with certain exceptions not relevant in this proceeding, “presence within New York State for any part of a calendar day constitutes a day spent within New York State” (20 NYCRR 105.20 [c]). Matter of Zanetti v New York State Tax Appeals Trib., 2015 NY Slip Op 03894, 3rd Dept 5-7-15