Discussion:NY tax experts, please help!

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Discussion Forum Index --> Tax Questions --> NY tax experts, please help!


JAD (talk|edits) said:

1 May 2007

Hi NY tax experts,

Normally when a client moves to another state, I can get up-to-speed fairly easily and generate a return with confidence. I have a client who has transferred to NY for about one year, 4/07 – 6/08. I am nervous about this work because my limited experience with NY is that its tax laws are somewhat outside of the average state (as is CA’s) and because my client’s numbers are pretty substantial. I don’t want to be stuck with penalties related to missing something in NY law.

Can anyone direct me to resources that would help me get comfort with these issues? In CA we have a company that focuses on CA research and that discusses part-year resident rules in detail. Is there a similar resource in NY?

Here is the tax picture:

1. CA resident status continues since he maintains his home here and plans to return.

2. Wage income $1.5 million.

3. Passive loss carryovers approaching ½ million. I expect that during the time he is living in NY, this will increase

4. Capital loss carryovers of $200,000. If he generates capital gains in excess of that amount, does the carryover from a time before he was in NY reduce those gains?

Are these questions, and any traps that I am not even aware of, fairly straight-forward, or do I need to consult w/ a NY practitioner?

Any help as I begin this client’s planning would be greatly appreciated. Thank you!

Uncle Sam (talk|edits) said:

2 May 2007
I suggest you call the NYS Tax Hotline at 1-800-225-5829 (1-800-CALL-TAX) and direct your questions there.

Now while your client is WORKING in New York, is he actualliy LIVING in New York (State). There's another catch - if he's living in New York City (Manhattan, Queens, Brooklyn, Staten Island, Bronx) then he also pays tax as a RESIDENT of NYC. Nonresidents don't pay taxes to NYC even if they work there. The NYC tax is incorporated and piggypacked onto the New York State tax return. Partial year residents and Non-Residents of NYS must file Form IT-203. Partial year residency in NYC requires Form IT-360.1 If you can get the tax booklet for form IT-203, that may explain what you're looking for.

Death&Taxes (talk|edits) said:

2 May 2007
Uncle Sam raises a good point about residency. But to answer your basic questions, go to either the 201 (Resident) or 203 (Part or Non-Year Resident) form and you will note that it follows line for line the Federal return so that your loss carryovers should apply when computing the left column income on the 203 or income on the 201.

I can site a case of a client who began work in NY in May 2004, making sizeable wages, but all were wiped out on the 1040 by a NOL carryforward from 2003. Though his NY income exceeded 300,000, his Federal income was zero meaning there was no tax to pay in NY since on the 203 the income percentage was zero.

I think you really have to review what makes a resident, and I suspect your client is one, but in being one he should carry all attributes from the past.

Dennis (talk|edits) said:

2 May 2007
Resident, but part-year for both returns.

Fsteincpa (talk|edits) said:

2 May 2007
He may not actually be a NY resident. But either way, the form is IT-203. I am in NY and there are two ways NY calculates the tax. what will happen is that either the NY portion of the total income will be attributale to ny and taxes paid or that the total amount of income will be attributable to NY and then the taxes paid to other states is an offset credit to taxes owed to NY.

Very simplified explanation because I am limited in time, but look at the form and if you need more specific info after filling it out, let us know.

LTBV01 (talk|edits) said:

2 May 2007
There is a position to take whereby a place of abode is not counted for the 183 day residency test if the presence in NY is for a specific purpose lasting less than two years. See the residency audit guidelines, I think pg 40.

If you can meet the specific purpose test, then you file nonresident for both years. That avoids NYC tax entirely and also avoids NYS tax on investment income and compensation attributable to non NY wokdays.

JAD (talk|edits) said:

2 May 2007
Wow! This is a really great jump-start on this work. Thank you so much for the responses!

KatieJ (talk|edits) said:

2 May 2007
Jessica, your client will probably remain a tax resident of California, since it appears his absence will be for a temporary purpose. I don't think you can file him as a part-year resident of California based on what you've told us, since he expects to be absent only for one year and is leaving his ties to California in place. If the absence was going to be 18 months or more, he might meet the safe harbor, but as it is, I think he's going to be a CA resident, as you first indicated.

For NY purposes, an individual domiciled elsewhere is a tax resident if he maintains a permanent place of abode and is present in NY for at least 183 days of the taxable year. A place of abode is not "permanent" for this purpose if it is maintained "only during a temporary stay for the accomplishment of a particular purpose." 20 NYCRR 105.20(e)(1). The regulation gives an example of an employer assigned to the employer's NY office for a fixed period of time, after which he is scheduled to return to his previous location. Such a person would not have a "permanent" place of abode in NY even though he spent more than 183 days of a taxable year in NY. The NYC definition of a resident is exactly the same as the state definition, just substituting "city" for "state." "

Of course the client will be subject to NY tax on his earnings from services performed in NY. However, he will not be subject to the NYC resident earnings tax if he is a nonresident. If he is a nonresident, NY will not tax his non-NY source income, which includes intangible income (interest, dividends, etc.).

If your client is a resident of both NY and CA at the same time, he will be in a double bind with respect to any intangible income. Both NY and CA consider that income to have its source at the residence of the owner, and deny any credit for taxes paid to another state on income that, by the state's definition, does not have a source in that state. So neither state would allow him credit for any tax paid to the other on income from intangibles. You don't want to get him into that position if you can help it.

JAD (talk|edits) said:

2 May 2007
Katie, I knew you had significant CA experience and am amazed that you know NY so well also. Thank you for your very significant contribution here. I will read your cite to the Code and find the Reg. Thank you.

Lalva (talk|edits) said:

3 May 2007
OK, I also have a client with ties in CA (wife) and working in NYC. In 2006 he was a NYC resident, but I also have to prepare '04 and '05, and he worked both in CA and NY.

I was thinking that he could be a CA resident and NY non resident because he was working temporarily there. But reading this discusion I am not sure. So if he was living in a hotel is he considered a NYC resident? Thank you.

KatieJ (talk|edits) said:

3 May 2007
Lalva, tell me more about your client. What made him a NYC resident in 06? Is his employment there really temporary, i.e., is there a fixed ending date? Or is it open-ended?

A hotel room generally would not be considered a "permanent place of abode." You need to read the regulation (20 NYCRR 105.20). Then let's talk about your client's particular situation. You may be able to avoid his being treated as a tax resident of NY and NYC -- or maybe not. He probably remains a CA resident unless the spouses are estranged and his absence from CA is not temporary.

Dennis (talk|edits) said:

4 May 2007
20 NYCRR 105.20(e)(1)

Permanent place of abode. (1) A permanent place of abode means a dwelling place permanently maintained by the taxpayer, whether or not owned by such taxpayer, and will generally include a dwelling place owned or leased by such taxpayer's spouse. However, a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode. Furthermore, a barracks or any construction which does not contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc., will generally not be deemed a permanent place of abode. Also, a place of abode, whether in New York State or elsewhere, is not deemed permanent if it is maintained only during a temporary stay for the accomplishment of a particular purpose. For example, an individual domiciled in another state may be assigned to such individual's employer's New York State office for a fixed and limited period, after which such individual is to return to such individuals's permanent location. If such an individual takes an apartment in New York State during this period, such individual is not deemed a resident, even though such individual spends more than 183 days of the taxable year in New York State, because such individual's place of abode is not permanent. Such individual will, of course, be taxable as a nonresident on such individual's income from New York State sources, including such individual's salary or other compensation for services performed in New York State. However, if such individual's assignment to such individual's employer's New York State office is not for a fixed or limited period, such individual's New York State apartment will be deemed a permanent place of abode and such individual will be a resident for New York State personal income tax purposes if such individual spends more than 183 days of the year in New York State. The 183-day rule applies only to taxpayers who are not domiciled in New York State.

Lalva (talk|edits) said:

4 May 2007
My client filed as a NYC resident in 2006 because he worked there for most of the year and rented an apartment in NYC. He works as a radio producer. I think that his contracts are open-ended, although he has several W2s, and a 1099 every year.

For 2004 and 2005, he worked both in NYC and in CA, and when not working he comes to CA. He also comes regularly to stay with his wife. For those years, maybe he could be part-year resident in both states since he worked aprox. half of each year in each one.

What could be the best (tax efficient) option? Or the right one, if more than one is possible?

Thank you for your help!

Dennis (talk|edits) said:

4 May 2007
Lots of court cases on this. After first contract renewal you are pretty much dead meat. Note that NY allows MFS where spouse is non-resident.

Lalva (talk|edits) said:

4 May 2007
So if he works for different companies, as long as there is no contract renewal, he is OK, right?

KatieJ (talk|edits) said:

4 May 2007
You said he stayed in a hotel in NY when he was working there. I don't think that's a "permanent place of abode" as defined in the regulation. Of course, if he has maintained the same room over an extended period of time (without moving out and giving it up when he goes to California), that would be a different kettle of fish. But if he checks into and out of the hotel every time he arrives and leaves, I don't think that's a permanent place of abode. In order to be a NY resident, he has to have BOTH a permanent place of abode AND be present in the state for more than 183 days. Depending on the facts, you may be on safe ground to treat him as a nonresident of NY. If so, it was a mistake to file him as a resident in 06. I wouldn't amend it (claims for refund usually get audited), but be aware that if you file him as a nonresident in 07, questions may be asked. Then you just say, he's not a resident, 06 was a mistake.

I also don't think you can treat him as a part-year resident of each state. He is a California domiciliary and remains a California resident unless he is absent for a purpose that is not temporary or transitory. If he is absent to perform particular contracts, and comes back to California afterwards, then I think he is always a California resident.

As Dennis says, there are a ton of ALJ and TAT decisions on these issues in NY.

Lalva (talk|edits) said:

4 May 2007
A million thank yous!!

JAD (talk|edits) said:

5 May 2007
Katie, how do you know all this about NY?

What does ALJ and TAT stand for...that information will help me find them if I need to go into case law.

Thank you.

KatieJ (talk|edits) said:

6 May 2007
Oh, sorry, Jessica. Since 1986 NY has what amounts to a tax court, somewhat analogous to the federal Tax Court in that it is independent from the Department of Taxation and Finance, which administers the personal income and corporate franchise taxes. This "court" is the Tax Appeals Tribunal (TAT), which consists of three Commissioners appointed by the governor.

The first level of appeal from an action of the Department of Taxation and Finance (Department) is the Division of Tax Appeals (DTA). Although the DTA is technically a division of the Department, the Commissioner (who runs the Department) has no power to control or manage its activities, which are instead managed and controlled by the TAT. If you appeal to the DTA, your case will be handled by an administrative law judge (ALJ), who will issue a written opinion. If you do not agree with the ALJ's decision, you can appeal to the TAT, which may or may not grant an oral hearing. There is no further administrative appeal from a decision of the TAT. If you lose at that level, your next step is the judicial system.

The trial court in New York is called the Supreme Court (I know, that's confusing, but they do a lot of things backwards in NY <G>). Instead of a system of district courts of appeal, such as exist in most states, the "intermediate" appeal court in NY is the Appellate Division of the Supreme Court. An application for judicial review of a TAT decision goes straight to the Appellate Division -- in other words, the TAT fills the role of a trial court. If you lose in the Appellate Division, you go to the high court of the state, which is called the New York Court of Appeals.

DTA/ALJ and TAT decisions are generally published and available in searchable form via CCH, RIA, or Lexis. You can learn more about the process at the DTA/TAT web site, http://www.nysdta.org/index.htm.

I teach multistate tax -- so I have to know a little bit about most states, and quite a lot about the larger economies such as NY, IL, FL, TX, OH, etc. ... plus I have access to RIA's 50-state service through SDSU, where I teach.

KatieJ (talk|edits) said:

6 May 2007
Another thing I probably should mention about the New York tax administrative appeals process is that a final decision of the TAT is binding on the Department. The taxpayer can go to court, but the Department cannot. As William Bennett, a long-time member of the California State Board of Equalization used to say about the California system, the taxpayer can go to the TAT (or SBE) and hit a home run.

JAD (talk|edits) said:

6 May 2007
Katie, I am at a loss for words, so I guess I will just leave it at thank you, which is so inadequate. How many hours of research would I have spent before figuring out NY's court structure? I'm going to do this project next week. I am still within my first few months w/ this website, and I am so amazed at the the knowledge and experience that the different people bring to this forum. Thank you again.

Uncle Sam (talk|edits) said:

6 May 2007
Katie-I'd like to thank you for your above capsule summary of the NYS Tax Appeals system.

I am from New York, have been in practice for nearly 30 years, and never really understood how it worked. I knew that back in 1986, the Tax Tribunal was set up, and its purpose was to take the Tax Commissioner OUT of the appeals process - so he wouldn't be both judge and jury. But you explained what I couldn't figure out in 20 years. Thanks so much.

KatieJ (talk|edits) said:

7 May 2007
Well, gee, you're welcome (blush).

I'm sensitive to the importance of independent, prepayment state tax dispute resolution systems that issue precedential rulings because I'm in California, where our administrative appeals body (the State Board of Equalization) is certainly not independent -- two of its 5 members are also members of the Franchise Tax Board. And with respect to sales and use tax appeals, the SBE *is* the administrative authority. It does have the advantages of not requiring payment of the tax prior to appeal, and its income/franchise tax decisions are binding on the FTB which is a good thing, but in recent years it has virtually stopped issuing written opinions. As a result we are in the swamps of ignorance, with no guidance offered by the SBE to the FTB or taxpayers.

So, orchids to NY, onions to CA.

KMMK (talk|edits) said:

23 May 2007
Help! I have a client who is domiciled in Tennessee - his family is there, but rents an apartment in New York City because he goes back and forth between the two locations for work. This will probably go on indefinitely while the client holds his particular job. i prepared a NY part year residency return, but a revenue agent looking at the return said my client absolutely has to pay NY income tax on wages for the year unless he can establish that he spent less than 184 days in NY. My client can't establish this - is there any way around the tax? Does the NY residence count as his "permanent place of abode?" I feel like my only argument is that the NY apartment is not his permanent residence. Thanks!

Death&Taxes (talk|edits) said:

24 May 2007
If we are fortunate, KatieJ will chime in at some point, but the manner of your question is not very precise. I could read it to say that the job is in NY and his other location is simply his home, or I could read it to say that his employer has locations in both states (in which case I would wonder why he is not reimbursed for traveling to NY), or I could read it that he works in NY and then does some work at home. NY does not recognize the days spent at home in most cases when filing as a non-resident. If all of the income is derived from his work in NY, I think you are going to have a rough time of it.

I question whether someone can be a part-year resident year after year. He is either a non-resident or a resident, and from the way it sounds, his arrangement does not meet the definition KatieJ gives above when discussing a hotel room.

Dennis (talk|edits) said:

24 May 2007
With a NYC apartment, part year resident is out of the question.

KatieJ (talk|edits) said:

24 May 2007
Like D&T, I could read the facts here a number of different ways, so we need more clarification. However, if your client has maintained an apartment in NYC and spent more than 183 days there during the year, I think he is a full-year resident of NY and NYC. If you read the regulation Dennis quoted above, you will see that the apartment (a dwelling place permanently maintained by the taxpayer) would be a "permanent place of abode" unless it is maintained "only during a temporary stay for the accomplishment of a temporary purpose." It appears that your client stays in the apartment and works in NY from time to time on a regular basis, which is not a "temporary purpose."

Well. I have argued successfully with a California FTB hearing officer that a client who came to Orange County from Nevada every Monday morning, stayed in his former family home (listed for sale), drove a company car in California, and flew home to his family in Reno every Friday night was in California each week for the TEMPORARY purpose of performing services for his employer -- and therefore was a nonresident, taxable only on his California earnings (and not on the big gain on the chunk of employer stock he sold after he moved his family to Nevada). The statutory framework in California is very different from New York (no 183-day rule, for one thing), but there is some similarity in the concept of a temporary purpose. So you MIGHT make the argument that the apartment is not a "permanent" place of abode. However, if you read some of the NY cases, I think you will conclude that your chances of making that argument stick are pretty slim.

If he is a resident of NY and NYC, he is subject to NY and NYC income tax on ALL of his income, not just his compensation for services performed in NY (which would be subject to NY state income tax even if he were a nonresident).

As a Tennessee domiciliary, your client is subject to the "Hall Income Tax," which is imposed on interest and dividend income of residents. Since such income is generally considered to have its source at the residence of the owner of the intangibles that produce it, Tennessee does not provide a credit for taxes paid to other states. If your client is a NY resident, NY will also tax his interest and dividend income, and will not allow a credit for the tax paid to Tennessee on that income. New York limits the credit to taxes paid to another state on income from sources within that state (N.Y. Tax Law § 620(a) ; NYCRR 20 § 120.1). Since income from intangibles is sourced at the residence of the owner, if your client is a NY resident, it's NY source income - hence no credit.

Mikhailway (talk|edits) said:

12 June 2007
Hi, I have a client who is a US govt employee and normally works at a govt lab in California.

He is on a "detail" (meaning he is assigned to work at a different location) in NYC that is currently set for 11 months. He will be working in NYC continuously from Feb 1 - Dec 31 2007 at this temporary location. However, he is still paid in California and withholdings are taken out there for California. I've seen in the discussions here that if it is for a "temporary" purpose he can claim non-residency, but is this regardless of the NY State 183 day rule? I believe in this case he simply files his California and Federal Returns like he is a California resident. He maintains his auto registration in California, but has all of his bills (credit cards, vehicle reg, etc) sent to where he is temporarily renting in NYC.

However, it *may* be more tricky than that. He may also do some part-time teaching at CUNY this Fall and they want to pay him. Can he still file non-residency for NY on this income? If he can then clearly he will have to claim the income on his California taxes. CUNY would not allow California withholdings when asked since it's not considered a tri-state residence. If he cannot I told him he will have to forgo the teaching until he officially moves to NY (if that ever happens).

In particular, I hope someone can confirm the residency rules for someone on "temporary assignment" (for which he has government documentation) since I cannot get a clear confirmation on this from all of the very good discussion on this list. Hopefully one of you experts can help.

thanks!

Blrgcpa (talk|edits) said:

12 June 2007
If he's here more than 183 days on a temp assignment, file IT-203. The tax will be allocated. He will owe NYS and if a resident of NYC will owe that also. (NYC is on the same tax form)

Do the NYS return before the CA return. CA will give credit for taxes paid to another state.

KatieJ (talk|edits) said:

13 June 2007
Mikhail,

You have the California rule backward. Your client remains a resident of California if he is absent for a temporary purpose. An 11-month assignment is a temporary purpose. Therefore, he will be a California resident during this entire period.

I think you can argue under NY law that he is a nonresident, even though he is present in the state for more than 183 days. The NY definition of a nondomiciliary resident (your client's domicile remains in CA) has two prongs: maintenance of a permanent place of abode, and presence in the state for more than 183 days of the taxable year (NYTL Sec. 605(b)).

This is what the regulation (NYCRR Sec 105.20(e)(1)) says about "permanent place of abode":

"A permanent place of abode means a dwelling place permanently maintained by the taxpayer, whether or not owned by such taxpayer, and will generally include a dwelling place owned or leased by such taxpayer's spouse. However, a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode. Furthermore, a barracks or any construction which does not contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc., will generally not be deemed a permanent place of abode. Also, a place of abode, whether in New York State or elsewhere, is not deemed permanent if it is maintained only during a temporary stay for the accomplishment of a particular purpose. For example, an individual domiciled in another state may be assigned to such individual's employer's New York State office for a fixed and limited period, after which such individual is to return to such individual's permanent location. If such an individual takes an apartment in New York State during this period, such individual is not deemed a resident, even though such individual spends more than 183 days of the taxable year in New York State, because such individual's place of abode is not permanent. Such individual will, of course, be taxable as a nonresident on such individual's income from New York State sources, including such individual's salary or other compensation for services performed in New York State."

Under that definition, your client's apartment in NY for 11 months is not a "permanent place of abode." The NYC definition is exactly the same except for referring to the city rather than the state. So your client will be a nonresident of NY and NYC. Of course he will be subject to NY state income tax on his income from services performed in NY, which includes both his government job wages and his salary from CUNY. (There's no problem with his accepting a temporary part-time teaching job at CUNY; it doesn't make him a resident.) California will tax all of his income, including all his NY earnings, and will give him credit for the tax he pays to NY on his NY source earnings (limited to the proportion of his California tax liability that relates to the NY source income). As a nonresident, he will not be subject to the NYC earnings tax.

Watch out -- if this turns out to be a permanent transfer, he'll become a NY and NYC resident, probably as of the date his status changes from "detail" to "transfer." At that point, he will presumably be absent from California for a purpose that is not temporary or transitory, and will become a nonresident of California.

At this point his employer should be withholding NY tax from his salary, not California tax, because of the way the credits work. By granting the credit, California effectively cedes the tax to the source state. If he goes on as he is, he will be overwithheld for California and underwithheld for NY. You need to get that fixed. CUNY should also withhold NY tax.

JAD (talk|edits) said:

19 September 2007
Does anyone have access to Section 11-1705(b)(1)(B) of the Administrative Code of the City of New York? Would you mind cutting and pasting here? I cannot find it online. Thank you!

Dennis (talk|edits) said:

19 September 2007
Title 11

(b) City resident and city nonresident defined. (1) City resident individual. A city resident individual means an individual:

   (A)  who is domiciled in this city, unless (i) he maintains no permanent place of abode in this city, maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this city, or (ii) (I) within any period of five hundred forty-eight consecutive days he is present in a foreign country or countries for at least four hundred fifty days, and (II) during such period of five hundred forty-eight consecutive days he is not present in this city for more than ninety days and does not maintain a permanent place of abode in this city at which his spouse (unless such spouse is legally separated) or minor children are present for more than ninety days, and (III) during any period of less than twelve months, which would be treated as a separate taxable period pursuant to section 11–1754, and which period is contained within such period of five hundred forty-eight consecutive days, he is present in this city for a number of days which does not exceed an amount which bears the same ratio to ninety as the number of days contained in such period of less than twelve months bears to five hundred forty-eight, or
   (B)  who is not domiciled in this city but maintains a permanent place of abode in this city and spends in the aggregate more than one hundred eighty-three days of the taxable year in this city, unless such individual is in active service in the armed forces of the United States.

Wrwcpa (talk|edits) said:

27 February 2008
My client maintains a residence in New York City. His permanent residence is in Long Island, however.

He says he spent 40% of his time in New York City in 2007 -- so he does not meet the 183 day test. Does this mean he should pay zero NYC income taxes even though he maintained a "permanent place of abode?"

TaxManager (talk|edits) said:

27 February 2008
You must be carefull with NYC. Everyday in the city whether or not he steps foot into his city residence is considered a day in the city.

For example everyday that he works in the city is considered part of the 183 day test. As well as if he goes into the city on the weekend to go the museum.

If your client goes through the city to go to NJ but stops to eat lunch in a city restaurant then its a day in the city.

Your client needs to maintain very good records to say that he was not a city resident. I have represented a couple of clients on a NYC residency audit. NYC can be very aggressinve in saying they are a resident.

If you do not have doumentation showing they are not in the city on a particular day, they sometimeins will take the position that they must have been in the city.

Wrwcpa (talk|edits) said:

27 February 2008
Thanks for all the excellent answers!! This message board is incredible!

I hope that I can start to give back soon.


TexCPA (talk|edits) said:

30 March 2008
Taxpayer works for NY comapny. TP Moved out of NY in 2005, TP filed 2005 Form IT 360 and Form IT 203. TP files 2006 IT 203, was never a residence. Now 2007 W-2 states state tax withheld.

Question: How to get state tax refund for 2006 and 2007 ?

File IT 203X for 2006?

Thanks

TexCPA

KatieJ (talk|edits) said:

30 March 2008
Tex, is your client a telecommuter? Does he work out of his home? If so, does he spend any time working at his employer's NY place of business?

As long as he NEVER SET FOOT in his employer's NY location, you can just file nonresident NY returns for 06 and 07 showing zero income and claiming a refund of the tax that was withheld. If he did work part of the time in NY, and the rest of the time at his home, you have another problem. NY will tax 100% of his earnings from that employer unless you can show that the employee's home office was a "bona fide employer office." See TSB-M-06(5)I [1].

TexCPA (talk|edits) said:

30 March 2008
Katie,

Client is not a telecommuter, works from home and spent no time @ NY' place of business.

So second issue:In preparing IT 203 for 2007, Both TP and wife were nonresidents and filed 2007 Federal MFJ, any direction for Part A?

Thank you !

TexCPA 10:50, 30 March 2008 (CDT)

KatieJ (talk|edits) said:

1 April 2008
Sounds like he IS a telecommuter if he works from home! But as long as he spent no time at his employer's NY location, he's safe. All he needs to do is file a nonresident return to get the withholding back.

If both spouses are nonresidents, and only one had NY source income, and they file a joint federal return, then they must file a joint NY return, but only the spouse who has NY source income signs it, and a Form IT 203(C) must be attached to the front of the return; then the refund will be issued only to the spouse who had the NY source income, and only that spouse will be liable for any additional assessments, etc. In your case there is no NY source income so it probably doesn't really make any difference whether you attach the 203(C). You do have to use the same filing status as federal and include both spouses' income in the calculation of your zero tax liability <G>.


Donniecastleman (talk|edits) said:

26 January 2010
I have a client that has lived in Las Vegas for 4 years in an apartment, but also has an apartment in New York State where his estranged wife and grown child stay. I'm guessing with the new rules that because he has family in NY he has to go back to filing as a full-year resident of NY, he is a touring person and did have maybe a week of work in NYC with the tour and we filed him a part year-non resident for that year, could NY come back and slam him for all wages made because of his wife and kid in NY?

Dennis (talk|edits) said:

26 January 2010
NY allows MFS for those who file a joint Federal return but maintain separate residences in different states.


BTCPA (talk|edits) said:

18 March 2011

I think I may be confusing myself on the 183 day test... here is the situation-

Client resided in Michigan from Jan-Feb 2010 and moved to NYC on March 1, 2010. He has 3 w-2's- fist one was for his job in Michigan from Jan-Feb, second and third are for the remainder of the year while living (and working) in NYC. Right now I have it set up as a part year resident Michigan return allocating the first w-2 and 1/6 of his dividend income and student loan interest deduction to Michigan (for the time he lived there), and a part year/non res NYS return (it-203) and allocating the remaining dividend income, student loan interest, and the second and third w-2's to NYS and NYC (form IT-360.1). This made sense until I read about the 183 day test- if he lived in NYC for greater than 183 days should all income be allocated to NYS? That would include the first w-2 while he lived in Michigan, I'd have to look into that further but I am guessing he could get a credit for tax paid to MI. Logically that doesn't make sense to me because he didn't live or work in NY for those two months. Please help!

Taxalmancer (talk|edits) said:

March 18, 2011
Here is an excellent resource for residency issues in NYS. It's the NYS Audit Guide, is very thorough and cites cases in this area.

http://www.tax.ny.gov/pdf/2009/misc/residency_guidelines_2009.pdf

BTCPA (talk|edits) said:

18 March 2011
Thanks taxalmanacer... it looks like the 183 day test is for statutory residents which is not the case here. I think I had it right in my original assessment.

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