Am I a New York resident? The two tests, the abode, the day count and the audit

New York taxes a resident on everything. That is the whole reason this question is worth an argument, and it is why the Department audits it. There are two independent ways to be a New York resident, they are decided by completely different facts, and either one alone is enough — which is what makes both of the usual reassurances wrong.

This page answers whether New York counts you as a resident. Once that is settled, which returns you file across state lines is a separate question, and when a change of status takes effect is another one again.

Read the marked passages differently from the rest. 14 of the statements below rest on the Department’s own audit manual and on nothing else. They describe what an auditor is instructed to do, which is not the same thing as what the law requires, and each one carries a mark where it appears. The mark is produced from the sources behind the statement rather than written beside it, so it cannot fall out of step with them.

Why this matters at all

A New York resident is taxed on all income, wherever it is earned. No single sentence of Article 22 says so: §601 imposes the tax on “New York taxable income”, §611(a) defines that as New York adjusted gross income less deductions and exemptions, and §612(a) defines New York adjusted gross income as federal adjusted gross income with modifications. Federal adjusted gross income has no geography, so neither does a resident’s New York base.N.Y. Tax Law §601(a)–(c), (e) · N.Y. Tax Law §611(a) · N.Y. Tax Law §612 · tax.ny.gov, Nonresident FAQs

New York decides residency by domicile or by statutory residence, and neither test has immigration status among its criteria. The two questions therefore come apart in both directions: someone who is a nonresident alien for federal purposes can still be a New York resident, and a lawful permanent resident can be a New York nonresident. 20 NYCRR §105.20(d)(3) states the domicile half affirmatively — “Domicile is not dependent on citizenship; that is, an immigrant who has permanently established such immigrant’s home in New York State is domiciled here regardless of whether such immigrant has become a United States citizen or has applied for citizenship.” That is narrower than it may sound. New York’s Nonresident Audit Guidelines treat a green card as one of the subordinate indicators of intent where domicile is genuinely in dispute, and say those factors “are subordinate to the primary factors”. Status is not a criterion of either test; it remains admissible as evidence of intent.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026" · Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91

Two tests, and either one alone is enough

The first turns on where your permanent home is. The second ignores that entirely and asks whether you keep a place to live here and how much of the year you spend in the State. Nothing requires both, which is why “I don’t live there” and “I was only there part of the year” each answer one test and neither answers the other.

New York has two residence tests, and either one alone makes a person a resident. §605(b)(1) opens “A resident individual means an individual:” and then sets out subparagraph (A), domicile in the State, and subparagraph (B), the permanent place of abode and day-count test — joined by the word “or” at the end of (A). 20 NYCRR §105.20(a) says the same thing as a list, providing that the term includes persons domiciled in New York State and, separately, an individual “not domiciled in New York State” who maintains an abode here; the two classes are mutually exclusive, so the “and” joining them joins a list rather than demanding both. Leaving this unsaid invites the commonest error in both directions at once: that someone not domiciled here is beyond the reach of the day count, and that someone here for only part of the year cannot be a resident. Both are wrong for the same missing sentence.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Being domiciled in New York makes a person a New York resident, without more. §605(b)(1)(A) reaches an individual “who is domiciled in this state, unless” — and the two clauses that follow are exceptions to residence, not elements of it. 20 NYCRR §105.20(a)(1) is built the same way: “all persons domiciled in New York State, subject to the exceptions set forth in subdivision (b) of this section.” No abode and no day count enter this limb at all. The two exceptions are escapes from residence based on domicile, available while the domicile lasts; changing domicile is a different matter and is not one of them. What domicile is, and how it is proved, is a separate question from this one.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The second test, and what the regulation adds to it

The statute writes this test as a conjunction, and the regulation restates it with a durational qualifier on the abode that the statute does not contain. The two texts are set out one after the other below, in that order, because reading either without the other is how a regulation’s gloss comes to be quoted as the statute’s words. Nothing here decides which text governs where they part — that is a legal conclusion, and it is not one this page draws.

The second test is conjunctive, and the day count is only half of it. §605(b)(1)(B) reaches an individual “who maintains a permanent place of abode in this state and spends in the aggregate more than one hundred eighty-three days of the taxable year in this state, whether or not domiciled in this state for any portion of the taxable year, unless such individual is in active service in the armed forces of the United States.” Both halves are required together: a permanent place of abode in New York, and more than 183 days here. The threshold is exclusive — 183 days does not reach it — and the days need not run together, because they are counted “in the aggregate”. Compressed to “more than 183 days in New York makes you a resident”, the test keeps a true figure and loses the half that most often decides the case.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read

The regulation states the abode element with a durational qualifier, and that qualifier is the regulation’s alone. 20 NYCRR §105.20(a)(2) reaches an individual “who is not domiciled in New York State, but who maintains a permanent place of abode for substantially all of the taxable year (generally, the entire taxable year disregarding small portions of such year) in New York State and spends in the aggregate more than 183 days of the taxable year in New York State.” The words “substantially all” appear nowhere in §605, which gives the abode element only the words “who maintains a permanent place of abode in this state” and qualifies “maintains” by no span of time. The regulation nowhere quantifies “substantially all” either — no fraction, no count of months, no count of days — and the figures that circulate for it come from the Department’s audit practice rather than from this text. Which of the two texts governs where they differ is not settled here.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

A taxpayer can exceed the day threshold and still not be a statutory resident, and Obus is the decided case. The Third Department recorded that “because petitioners concede that they spent more than 183 days in New York during the tax years at issue, their argument distills to whether the Tribunal rationally determined that the Northville home constituted a permanent place of abode”, and concluded that “it was inappropriate for the Tribunal to deem petitioners statutory residents of this state” (206 AD3d 1511, 1512, 1514). The day count was conceded; the abode element failed on its own facts. That is what makes the conjunction real rather than theoretical. It is not a safe harbour: the taxpayers reached that result only after an audit, an Administrative Law Judge, the Tribunal and an article 78 proceeding, and the opinion never says how many days they actually spent here.206 AD3d 1511 (3d Dept June 2022) (Pritzker, J.), pp. 1511–1515; lv denied 39 NY3d 907 (Feb. 9, 2023)

The armed-forces exception attaches to the statutory residence test and not to the domicile test. In the statute it is the closing words of §605(b)(1)(B) — “unless such individual is in active service in the armed forces of the United States” — and subparagraph (A), the domicile limb, carries no equivalent. The regulation places it differently and lands in the same place: a parenthetical inside 20 NYCRR §105.20(a)(2), “(other than an individual in active service in the Armed Forces of the United States)”, with nothing corresponding in §105.20(a)(1). Two drafters, two grammatical positions, one side of the test. What is stated here is where the clause sits in those two texts; whether a court or the Department has ever read it more widely has not been established, and neither text defines “active service”. It is not a general exemption from New York residence — it reaches the abode-and-days test and leaves the domicile test untouched.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The third statement above is a decided case rather than an argument, and it is the answer to the only thing most people have heard about New York residency. Notice which half of the test decided it. What makes a dwelling a permanent place of abode is the next section.

What a permanent place of abode is

The regulation defines the term and the courts have said what else must be shown. Both belong in the same breath — the definition read on its own is a test about maintaining a dwelling, and that is the reading the Court of Appeals found no rational basis for.

A permanent place of abode is defined by the regulation and conditioned by the courts, and the two belong in one sentence. 20 NYCRR §105.20(e)(1) provides that “a permanent place of abode means a dwelling place of a permanent nature maintained by the taxpayer, whether or not owned by such taxpayer”. The Court of Appeals held in Gaied that “in order for an individual to qualify as a statutory resident, there must be some basis to conclude that the dwelling was utilized as the taxpayer’s residence”, and that “in order for a taxpayer to have maintained a permanent place of abode in New York, the taxpayer must, himself, have a residential interest in the property” (22 NY3d 592, 594 and 598). The Third Department stated the negative of it in Obus: “The taxpayer must have utilized the dwelling as his or her residence; maintaining a dwelling that could be a permanent place of abode is not enough to establish status as a statutory resident” (206 AD3d 1511, 1513). Read alone, the regulation looks like a test about maintenance, and it is not. Neither court held the regulation invalid — Gaied cites it as supporting the residential-interest requirement — and neither defined “residential interest”, which Obus calls a fact-intensive inquiry.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026" · 22 NY3d 592 (2014) (Pigott, J.), argued January 16, 2014, decided February 18, 2014; opinion pp. 594–598, reversing 101 AD3d 1492 (3d Dept 2012) · 206 AD3d 1511 (3d Dept June 2022) (Pritzker, J.), pp. 1511–1515; lv denied 39 NY3d 907 (Feb. 9, 2023)

Gaied v New York State Tax Appeals Tribunal is where the residential-interest requirement comes from, and it construes the statute rather than the regulation. The Tribunal had read “maintains a permanent place of abode” to mean that a taxpayer “need not ‘reside’ in the dwelling, but only maintain it”; the Court of Appeals concluded that “there is no rational basis for that interpretation”, and held that “there must be some basis to conclude that the dwelling was utilized as the taxpayer’s residence” (22 NY3d 592, 594, 598). The posture is worth knowing, because a holding reads like settled law in isolation and this one had four decisions behind it: the Administrative Law Judge sustained the deficiency, the Tribunal reversed and then on reargument reversed itself, the Appellate Division confirmed while saying a contrary conclusion would have been reasonable, and the Court of Appeals reversed unanimously and remitted. It remitted — it settled the legal standard and did not decide the facts of the taxpayer’s apartment.22 NY3d 592 (2014) (Pigott, J.), argued January 16, 2014, decided February 18, 2014; opinion pp. 594–598, reversing 101 AD3d 1492 (3d Dept 2012)

Matter of Obus supplied the negative half: what a dwelling is like does not by itself answer the question. The Third Department held that although the house was “undoubtedly suitable for year-round living” and so not a “mere camp or cottage”, that “does not mean that the Northville home necessarily constitutes a permanent place of abode”, and that “it was unreasonable for the Tribunal to focus solely on the Northville home’s objective characteristics”; the same dwelling “could have been used in a manner such that it could constitute a permanent place of abode within the meaning of Tax Law § 605, because petitioners did not use it in this manner, it does not constitute a permanent place of abode” (206 AD3d 1511, 1513-1514). The same house, two answers, decided by use. The facts the Court relied on were facts about use, and it acknowledged the taxpayer’s free and continuous access to the home and held against the Department anyway — so they are not a checklist to be worked through; the inquiry is fact-intensive. The Third Department annulled the determination and granted the petition, unanimously, and leave to appeal was later denied (39 NY3d 907). It is an Appellate Division decision, not a Court of Appeals one.206 AD3d 1511 (3d Dept June 2022) (Pritzker, J.), pp. 1511–1515; lv denied 39 NY3d 907 (Feb. 9, 2023)

What is included, and what is carved out

The regulation names one inclusion and three exclusions, and none of them is a gate. Clearing an exclusion does not make a dwelling an abode, and a court has said exactly that about the best known of them.

The regulation reaches a spouse’s dwelling, with a hedge of its own. 20 NYCRR §105.20(e)(1) continues that a permanent place of abode “will generally include a dwelling place owned or leased by such taxpayer’s spouse.” The word is “generally”, and it is the regulation’s. Beside it stands the Court of Appeals’ own emphasis in Gaied — “the taxpayer must, himself, have a residential interest in the property” (22 NY3d 592, 598), in the same opinion that quotes the spouse clause — and the requirement in Obus that the taxpayer have used the dwelling as a residence (206 AD3d 1511, 1513). Both are here because both are in the texts. Neither court decided a case about a spouse’s house: the dwelling in Gaied was his parents’ apartment, in a building he owned. Whether a house held in a spouse’s name is the taxpayer’s abode is a question those texts frame and neither answers.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026" · 22 NY3d 592 (2014) (Pigott, J.), argued January 16, 2014, decided February 18, 2014; opinion pp. 594–598, reversing 101 AD3d 1492 (3d Dept 2012) · 206 AD3d 1511 (3d Dept June 2022) (Pritzker, J.), pp. 1511–1515; lv denied 39 NY3d 907 (Feb. 9, 2023)

The camp-or-cottage exclusion is an example, not a gate. 20 NYCRR §105.20(e)(1) provides that “a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode” — suitable only for vacations and used only for vacations. The inference it invites is that anything more than a camp or cottage is an abode, and the Third Department rejected exactly that in Obus: “the fact that it is not a ‘mere camp or cottage’ does not mean that the Northville home necessarily constitutes a permanent place of abode, because the reference to a ‘mere camp or cottage’ is just one example of circumstances where a dwelling will not constitute a permanent place of abode” (206 AD3d 1511, 1513-1514). The house in that case was furnished, climate-controlled and had its utilities paid the year round, so it cleared the exclusion comfortably — and it was still held not to be a permanent place of abode, because of how it was used.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026" · 206 AD3d 1511 (3d Dept June 2022) (Pritzker, J.), pp. 1511–1515; lv denied 39 NY3d 907 (Feb. 9, 2023)

The regulation also takes out dwellings that lack ordinary facilities, and hedges this exclusion too. 20 NYCRR §105.20(e)(1) provides that “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.” Cooking and bathing are given as examples of what an ordinary dwelling has, not as the test — the regulation’s own “etc.” is doing that work — and “will generally not be deemed” is not “is not”. This clause runs the opposite way from the camp-or-cottage point: it takes a dwelling out of the definition for what it lacks, rather than putting one in for what it has. It is one circumstance among others in which a dwelling is not an abode, and clearing it establishes nothing.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

A student’s dwelling is carved out, and the carve-out runs to the student alone. 20 NYCRR §105.20(e)(1) provides that “a dwelling place maintained by a full-time student enrolled at an institution of higher education, as defined in section 606(t)(3) of the Tax Law, in an undergraduate degree program leading to a baccalaureate degree, and occupied by the student while attending the institution is not a permanent place of abode with respect to that student.” Four conditions, all required together: a full-time student; enrolled at an institution of higher education as §606(t)(3) defines one; in an undergraduate programme leading to a baccalaureate; occupying the dwelling while attending. A graduate programme is outside it. And “with respect to that student” is the phrase that matters most to a family: the same apartment can still be a permanent place of abode of the parent who maintains and pays for it. The regulation defers to §606(t)(3) for what an institution of higher education is, and that provision is not set out here.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

“Full-time student” is defined for that carve-out by course load. 20 NYCRR §105.20(e)(1) provides that “a full-time student is an individual who is carrying a minimum courseload in such program of 12 credit hours per semester for at least two semesters, or the equivalent, during the individual’s taxable year.” Each part is doing work: 12 credit hours is a load per semester, at least two semesters is a count of them, and the whole is measured over the taxable year rather than an academic one. “Or the equivalent” makes both figures defeasible and the regulation supplies no measure of equivalence, so neither is a hard gate. And the course load is only the definition of the first of the carve-out’s four conditions — meeting it decides nothing on its own.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Counting days

The statute imposes a day threshold and never says what a day is. The regulation does, and its rule is stricter than almost anyone expects.

Part of a day is a whole day. 20 NYCRR §105.20(c) provides that “in counting the number of days spent within and without New York State, presence within New York State for any part of a calendar day constitutes a day spent within New York State”. Arrive late one evening and leave early the next morning, and two days have been counted. This is the rule that decides most statutory-residence audits, it is the one a client is least likely to guess, and it is nowhere in the statute — §605 imposes the day test and never says what a day is.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The travel exception is narrow on the regulation’s own words. 20 NYCRR §105.20(c) continues that presence in New York “may be disregarded if such presence is solely for the purpose of boarding a plane, ship, train or bus for travel to a destination outside New York State, or while traveling through New York State to a destination outside New York State.” Both qualifiers bind. “Solely” means any other purpose for the presence takes the day outside the exception; “may be disregarded” permits the day to be disregarded rather than commanding it. There are two limbs, and neither is as wide as “travel”: boarding one of the named conveyances for a destination outside New York, and passing through New York to a destination outside it. A journey that ends in New York is outside both, and the conveyances named in the first limb do not include a car.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The regulation puts a record-keeping duty on the person a day count is most likely to be run against. 20 NYCRR §105.20(c) provides that “any person domiciled outside New York State who maintains a permanent place of abode within New York State during any taxable year, and claims to be a nonresident, must keep and have available for examination by the Department of Taxation and Finance adequate records to substantiate the fact that such person did not spend more than 183 days of such taxable year within New York State.” This falls on the opposite person from the New York domiciliary who claims one of the year escapes: here it is someone domiciled outside the State who keeps an abode inside it. And it is a duty to keep records, not a standard of proof — what an auditor must be persuaded by is a separate question from what must be kept.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Where audit practice takes over

Everything below qualifies the rules above, and every one of these statements comes from the Department’s audit manual and from nothing else. They are worth knowing, because an auditor is expected to follow them. They are not rules a taxpayer can insist on, that a tribunal is bound by, or that a court must apply. Several run in the taxpayer’s favour and several run the other way, and they are set out here in pairs for that reason.

The Department’s audit manual qualifies the any-part-of-a-day rule with an expectation about audits rather than with a threshold. Its Nonresident Audit Guidelines say at p. 53 that “the literal interpretation of ‘any part of a day’ could mean stepping over the state line for one second; however, no audit is ever expected to be based on such a minimal amount of time spent in New York. Common sense must prevail.” The manual gives no number of minutes, no distance and no test. It is describing what the Department expects of its own auditors about a regulation that says the opposite, so a taxpayer cannot demand it and no tribunal is bound by it — and the manual supplies its own counterweight on the same page.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

That expectation is not a small-visits exemption, and the manual says so on the same page. Its Nonresident Audit Guidelines state at p. 53 that “presence in New York for brief periods of time would normally constitute days in the state”, and report a case in which taxpayers living near the Connecticut border came into New York on a handful of days to shop and dine and were held statutory residents. The manual quotes the Administrative Law Judge: “There is, unfortunately, no shopping or dining exception in the statute, regulation, or caselaw ... petitioners’ presence was purposeful and voluntary.” Those are the Judge’s words as the manual reproduces them, and the day counts in that case are its facts and not a threshold. The manual’s own text classes determinations of that kind as non-precedential.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The regulation says “solely”; the Department says what it will still treat as solely. The Nonresident Audit Guidelines state at p. 54 that the question turns on “(1) whether the traveler’s activity is incidental to his presence for travel purposes and (2) the degree of control the taxpayer exercises over his travel arrangements”, and that “the purchase of meals or other items at a terminal, access to an automatic teller machine (ATM), stopping for gas or a meal while driving through New York, stopping to pick up a traveling companion on route to the terminal, parking the car in New York in order to meet a limousine or other conveyance that takes the individual to the airport or terminal should not change the treatment of this day as a travel day”. The manual draws its own contrast: arriving a day early for a cruise in order to attend a business meeting is a day present, while seeing a friend during an unavoidable delay is not. This is the Department elaborating on a regulation, and it cites nothing for any of it.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The Department states a medical exclusion in its own name, and it is about confinement. The Nonresident Audit Guidelines say at p. 54 that “it is Audit policy that confinement to a medical institution for any reason in New York (serious or otherwise), does not constitute a day spent in New York.” The manual presents this as its own extension of a court decision it describes as reaching a serious illness, and every example it gives is confinement — a person placed in a facility, an emergency in which the patient cannot realistically be removed from the state, a heart attack on a business trip. It is not a rule that medical days do not count, and the two statements that follow are why.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

That exclusion stops at the hospital door. The Nonresident Audit Guidelines state at p. 54 that “the above exclusion does not extend to outpatient care”, and report a decision in which the status of days a taxpayer spent in New York City “as an outpatient or visiting doctors” was in dispute and “the Court found the taxpayers contention that these days were covered by Stranahan to be lacking in merit.” A client who spends a regular day in Manhattan seeing a specialist is counting those days. What is stated here is what the manual says about that decision; the opinion itself has not been read for this page.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The exclusion is about the patient, not the family. The Nonresident Audit Guidelines report at p. 55 a case in which the issue “was whether to count days a husband spent in New York City visiting his wife who was hospitalized”, and in which “the ALJ concluded Stranahan did not apply to the husband’s days.” For anyone sitting with a hospitalised parent or spouse this is the first way the medical exclusion gets over-read. The manual notes that neither taxpayer was ultimately held a statutory resident of the City in that case, so those days did not decide it. It was a New York City residency case, and determinations of that kind are ones the manual’s own text classes as non-precedential.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The most taxpayer-favourable statement in the day-counting material is an instruction to auditors, hedged twice. The Nonresident Audit Guidelines state at p. 53 that taxpayers trying to meet their burden “may not always leave a paper trail to substantiate their whereabouts on weekend days when they claim to be at home in their state of domicile”, and that “in such situations, auditors should generally accept the taxpayer’s allegations absent evidence to the contrary such as a clear pattern of regularly being in New York on weekends.” “Should generally” is not “must”, and the accommodation is withdrawn by a pattern of weekend presence. It is what the Department tells its own staff to do. It is not an entitlement a taxpayer can insist on.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

What domicile is

Domicile is the other test, and it follows a person rather than a property. The statute uses the word and defines it nowhere; the definition below is the regulation’s.

Domicile is defined by the regulation, not by the statute — §605 uses the word and defines it nowhere. 20 NYCRR §105.20(d)(1) provides that “domicile, in general, is the place which an individual intends to be such individual’s permanent home — the place to which such individual intends to return whenever such individual may be absent.” It is a test about intention, and about a single place. The Department’s audit manual paraphrases the sentence into a shorter form of its own and puts that in quotation marks; the words above are the regulation’s.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

A person has one domicile, and keeping a place in two states does not produce two. 20 NYCRR §105.20(d)(4) provides that “a person can have only one domicile. If a person has two or more homes, such person’s domicile is the one which such person regards and uses as such person’s permanent home. In determining such person’s intentions in this matter, the length of time customarily spent at each location is important but not necessarily conclusive.” Note what the third sentence does with time. For domicile, time spent at each home is important and not decisive: there is no threshold here and no day count, and a reader arriving from the statutory residence test will be tempted to import one.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

A move meant to last only a limited time does not change domicile, and selling the New York house does not change that answer. 20 NYCRR §105.20(d)(2) provides that “no change of domicile results from a removal to a new location if the intention is to remain there only for a limited time; this rule applies even though the individual may have sold or disposed of such individual’s former home.” The clause after the semicolon is the one clients need, because disposing of the New York home is the act most people believe settles the question. What the regulation says is narrower than “the sale is irrelevant”: the sale does not defeat the limited-time rule. The home remains an indicator among others, and it is the first of the factors the Department’s auditors work through.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Saying where home is counts for something, and it loses to conduct. 20 NYCRR §105.20(d)(2) provides that “in determining an individual’s intention in this regard, such individual’s declarations will be given due weight, but they will not be conclusive if they are contradicted by such individual’s conduct.” Saying, writing, filing or swearing that somewhere else is home is a declaration; it is admitted and weighed, and behaviour to the contrary overrides it. The sentence cuts both ways, though: “due weight” is not “no weight”, and reading declarations out of the analysis altogether is as wrong as treating them as decisive.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Voter registration is the only indicator the regulation names. 20 NYCRR §105.20(d)(2) provides that “the fact that a person registers and votes in one place is important but not necessarily conclusive, especially if the facts indicate that such individual did this merely to escape taxation.” The text rates it as important and then removes its force where the facts show it was done for tax reasons. Driver’s licences, vehicle registrations, club memberships, mailing addresses and school enrolments are on every checklist in circulation and appear nowhere in this regulation — where they figure at all in what has been read for this page, they are the Department’s own audit factors, in a document that disclaims legal force.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Citizenship, and going abroad

Domicile does not depend on citizenship, and the sentence runs in the direction most often reported backwards. 20 NYCRR §105.20(d)(3) provides that “domicile is not dependent on citizenship; that is, an immigrant who has permanently established such immigrant’s home in New York State is domiciled here regardless of whether such immigrant has become a United States citizen or has applied for citizenship.” This is not a comfort. It says that a non-citizen who has permanently made a home here is domiciled here, and that no visa category, no pending application and no absence of either changes that. Note also the word the regulation uses: “citizenship”. It says nothing about visa category or about lawful permanent residence.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

A United States citizen who goes abroad does not ordinarily lose a New York domicile by going. 20 NYCRR §105.20(d)(3) provides that “a United States citizen will not ordinarily be deemed to have changed such citizen’s domicile by going to a foreign country unless it is clearly shown that such citizen intends to remain there permanently”, and gives the example of a citizen domiciled in New York “who goes abroad because of an assignment by such citizen’s employer or for study, research or recreation”, who “does not lose such citizen’s New York State domicile unless it is clearly shown that such citizen intends to remain abroad permanently and not to return.” The subject of both sentences is a United States citizen. Whether the Department applies the same presumption to a lawful permanent resident or another non-citizen leaving New York for their country of origin is not established here, and the regulation does not say.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The one thing the statute forbids being weighed

Almost everything about domicile is evidence rather than rule. There is a single exception, it sits in the statute rather than in a regulation or a manual, and it is absolute.

There is one thing §605 itself says about how domicile is determined, and it is a prohibition. §605(c) provides that “notwithstanding any other provision of any other law to the contrary”, the making of a financial contribution, gift, bequest, donation or other financial instrument or pledge in any amount, the donation or loan of any object of any value, or “the volunteering, giving or donation of uncompensated time”, where it is considered a charitable contribution under IRC §170(c) or is made to a not-for-profit organisation as defined in State Finance Law §179-q(7), “shall not be used in any manner to determine where an individual is domiciled.” It sits in its own subsection, outside the residency definition, which is why a reader working from §605(b) never meets it. “Shall not be used in any manner” is absolute, and no departmental factor list can reach past it. The protection is defined by those two cross-references rather than covering giving in general, and neither cross-reference is set out here. It says nothing about the income tax deduction for the same gift.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read

Leaving New York

Leaving is not the same as arriving somewhere else, and a domicile does not lapse for want of use. Separately from changing domicile, a person who remains a New York domiciliary can be treated as a nonresident for a year — but only by satisfying every condition of one of two escapes, and only for as long as the conditions keep being met.

A change of New York resident status is triggered under §639(e) where an individual “changes his or her status from a resident to nonresident or from a nonresident to resident during a taxable year, or at the beginning of a taxable year, as a result of a change of domicile or as a result of becoming a resident or nonresident based on the definition contained in subsection (b) of section six hundred five of this article.” Both timings attach to both routes; the sentence contains no device pairing one with the other, so a change of domicile is not confined to mid-year and a §605(b) change is not confined to a year boundary. The second route also subsumes the first, since domicile is itself a limb of the §605(b) definition — they are belt and braces rather than two separate doors.N.Y. Tax Law §639(e); the whole section, (a) through (h), was read · N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read

A New York domicile continues until a new one is established elsewhere. 20 NYCRR §105.20(d)(2) states it as a rule about persistence rather than about proof, and the practical effect is that leaving is not by itself arriving: until a domicile is acquired somewhere else, the former one stands. What makes a new domicile established — the factors weighed, the standard applied, and what an auditor examines — is a separate question from when the change takes effect, and is not answered here.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026" · Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91

The first escape, and the regulation’s words for it

The day figure in this escape is the part everyone remembers and the least of its three conditions. Two of the three are about where a home is kept, and the regulation states those two with durational words the statute does not use — so, again, both texts, one after the other.

The first escape has three conditions and all three must hold. §605(b)(1)(A)(i) applies “unless (i) the taxpayer maintains no permanent place of abode in this state, maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this state”. Two of the three are not about days at all: no permanent place of abode kept in New York, and a permanent place of abode kept somewhere else. The third is a ceiling of not more than 30 days here, and it is inclusive — 30 passes, 31 fails, the opposite operator from the threshold in the statutory residence test, counting the same thing on the same page. The direction is opposite too: exceeding that threshold makes a person a statutory resident, while staying at or under this one is one of three things a New York domiciliary must do to be treated as a nonresident. And it is an escape for the year rather than a departure: the person remains domiciled in New York throughout, and the conditions are tested again each year.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read

The regulation attaches durational words to both abode conditions of that escape, and uses two different formulas for them. 20 NYCRR §105.20(b)(1) requires that “(i) such person maintains no permanent place of abode in New York State during such year; (ii) such person maintains a permanent place of abode outside New York State during such entire year”, before coming to the day condition at (iii). §605(b)(1)(A)(i) qualifies neither abode condition by any span of time. So the regulation asks for “during such year” in one limb, “during such entire year” in the next, and “for substantially all of the taxable year” elsewhere — and it nowhere says whether it means the three to differ. That is what the regulation provides; it is not a statement of what the statute requires.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The second escape, for a domiciliary abroad

This one runs over a window of consecutive days rather than over a taxable year, which is why it can straddle two of them. Its family condition is the sharpest divergence on this page: the statute counts where the family is, the regulation counts a home the taxpayer maintains at which the family is. Both are set out together and neither is presented as the law.

The second escape runs on a window rather than on a total. §605(b)(1)(A)(ii) sets three conditions at clauses (I), (II) and (III), joined by “and”, and measures every one of them “within any period of five hundred forty-eight consecutive days”; 20 NYCRR §105.20(b) states the arithmetic in words, requiring “all three requirements in paragraph (2)”. The 548 days are consecutive, and they are the period over which the other conditions are tested — not a further quantity of time to accumulate. “Any period of” lets the window sit anywhere, including across two taxable years, which is the whole reason the third condition exists. Like the first escape it does not change domicile: the person stays a New York domiciliary and is tested against the conditions year by year.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

One of those conditions is a floor, and it is the only floor in the test. §605(b)(1)(A)(ii)(I) requires that “within any period of five hundred forty-eight consecutive days the taxpayer is present in a foreign country or countries for at least four hundred fifty days”, and 20 NYCRR §105.20(b)(2)(i) says the same in digits. At least 450 days, so 450 passes: this is the one figure a taxpayer needs more of rather than less, and it must never be paraphrased into a ceiling. The days aggregate across countries, and nothing requires them to run together — it is the window that is consecutive, not the presence.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Under the statute the family condition counts presence in the State. §605(b)(1)(A)(ii)(II) requires that “during the period of five hundred forty-eight consecutive days the taxpayer, the taxpayer’s spouse (unless the spouse is legally separated) and the taxpayer’s minor children are not present in this state for more than ninety days”. That is one conjunctive series, with the taxpayer counted alongside the spouse and the minor children, and what it counts is presence: the words “permanent place of abode”, “abode”, “dwelling” and “maintain” appear nowhere in the clause. On the statute’s face a spouse or a child who spends more than 90 days in New York breaks the condition wherever they stayed. The ceiling is exclusive — 90 passes, 91 fails — and neither text defines “legally separated”. The regulation writes this condition differently, and the two are set out side by side because which of them governs has not been decided.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read

Under the regulation the same condition turns on a maintained abode. 20 NYCRR §105.20(b)(2)(ii) requires that “during such period of 548 consecutive days such person is not present in New York State for more than 90 days and does not maintain a permanent place of abode in New York State at which such person’s spouse (unless such spouse is legally separated) or minor children are present for more than 90 days”. That is two limbs joined by “and”, not a single series. The first is the taxpayer’s own presence. The second fails only where both facts hold together — an abode maintained in New York, and the spouse or minor children present at that abode beyond the ceiling — so the words “at which”, which are not in the statute, narrow the family condition sharply. The connective flips as well: the statute joins the taxpayer, the spouse and the children conjunctively, while the regulation separates the taxpayer into the first limb and joins “spouse ... or minor children” disjunctively in the second, so either one alone can break it. This is what the regulation provides; the statute provides something else, and which governs is not settled here.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

The third condition prorates the New York ceiling into the taxable years at each end of the window. §605(b)(1)(A)(ii)(III) requires that “during the nonresident portion of the taxable year with or within which the period of five hundred forty-eight consecutive days begins and the nonresident portion of the taxable year with or within which the period ends, the taxpayer is present in this state 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 that portion of the taxable year bears to five hundred forty-eight”; 20 NYCRR §105.20(b)(2)(iii) states the same relationship in digits. So the 90-day ceiling is scaled to the length of each partial year, in the proportion that the partial year bears to the 548 days of the window. This is the clause that makes the escape hard to plan: it reaches into two taxable years, and a taxpayer who has counted only the days falling inside the window has not tested it at all.N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read · 20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

Who has to prove it

An escape is not asserted, it is proved, and the regulation says whose job that is. This is the regulation’s own allocation. It is not audit practice, and nothing in the section that follows qualifies it.

Neither escape is asserted — it is proved, and by the taxpayer. The flush text following 20 NYCRR §105.20(b)(2)(iii) provides that “as long as an individual who is domiciled in New York State continues to meet the requirements of either paragraph (1) or paragraph (2) of this subdivision, such individual will be considered a nonresident of New York State for personal income tax purposes. However, where such individual fails to meet those conditions, such individual will be subject to New York State personal income tax as a resident. Where an individual domiciled in New York State claims to be a nonresident for any taxable year (or portion thereof), the burden is upon such individual to show that such individual satisfied the requirements set forth in paragraph (1) or paragraph (2) of this subdivision.” Two things follow. The escape is not won once: “as long as ... continues to meet” makes it a test for each taxable year. And the conditions are not a safe harbour a client can simply claim — the burden of showing they were met sits on the person claiming them. The text of §605(b)(1) contains no burden language of its own.20 NYCRR §105.20, headed "Tax Law, § 605(b)(1)"; the whole section, (a) through (e), was read — quoted at (a)(2), (b)(2)(ii) and the flush text following it, (c), (d)(1)–(6) and (e)(1), and cited at (a), (d)(2) and (d)(3). Text relied on read at law.cornell.edu, which carries no currency stamp of any kind; the word-for-word identical copy at govt.westlaw.com/nycrr prints "Current through May 15, 2026"

What an audit actually weighs

A residency audit is run out of a manual, and the manual is candid about what it is. Everything in this section is marked, and the marks are not a disclaimer — they are the point. Read what the Department says about its own document before reading what the document says about you.

The Department’s Nonresident Audit Guidelines describe their own status, and the asymmetry in that description is the useful part. They state at p. 4 that “guidelines are issued primarily to provide guidance to audit staff”, that “they have no legal force or effect, nor do they establish precedent in the particular subject matter”, and that “they are generally binding on audit staff who are expected to follow the rules and procedures outlined in the guidelines when conducting an audit.” A note immediately below adds that they “do not replace existing law, regulations, case law or informational materials issued by the Department”, and at p. 5 that references to tax law in them “are meant to highlight general points of law and are not meant to be an authority on interpreting the law.” Both halves matter to a client under audit. The manual binds the auditor across the table, and it binds neither the taxpayer nor anyone who reviews that audit.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The manual is full of case names, and says itself that not all of them are law. The Nonresident Audit Guidelines state at p. 7 that “only cases decided by the New York State Tax Tribunal or the New York State Courts establish precedent in an area”, and that “certain Administrative Law Judge decisions, although not precedential, are cited throughout these guidelines in instances where they thoroughly explain an audit issue and are in accordance with current audit policy.” That is the manual’s own rule about a whole class of what it cites, and it is why several statements on this page are given as what the manual says rather than as what the law is. Sorting any particular citation into that class means reading the citation, which is a separate exercise from reading the manual.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The five factors, and where they come from

This is the list published all over the internet as the test New York applies. It is genuinely what an auditor will work through, and it is worth preparing for. It is also a manual’s list, and one of the statements below records what the manual offers as its authority for it.

The five factors that circulate as “the factors New York uses” are an audit manual’s. The Department’s Nonresident Audit Guidelines state at p. 11 that “the factors used to determine domicile are divided into two general categories, primary factors and other factors”, and that “an analysis of the five primary factors (Home, Active Business Involvement, Time, Items Near & Dear and Family Connections) should generally provide a basis for New York domicile before documentation concerning the ‘other’ factors is requested from the taxpayer.” The manual develops each of the five at length. This is genuinely what an auditor will work through, which is why it belongs on the page — and it is not a legal test, which is why it appears as departmental practice. The “other” factors are not enumerated here.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The manual says where the primary factors come from, and the answer is a dictionary. The section of the Nonresident Audit Guidelines introducing them opens, at p. 11: “A. PRIMARY FACTORS. Webster’s New World Dictionary defines Primary as: 1. first in line or order; 2. from which others are derived; fundamental; 3. first in importance. All three meanings describe the importance of the primary factors in determining domicile.” It cites nothing else — no statute, no regulation, no case, no tribunal decision — and a full-text search of the whole document for a contrary statement found none. What is stated is an absence in that document. It is not a claim that no authority for a five-factor structure exists anywhere in New York law, which is a much larger question and was not researched. Nor is it an accusation: the manual is candid about its own status a few pages earlier.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The manual tells its auditors to reach an answer on the primary factors, and to do more than count them. The Nonresident Audit Guidelines state at p. 11 that “information concerning the ‘other’ factors should only be requested when a basis for New York domicile, using the primary factors, is found to exist or where primary factors are at least equal in weight for New York and another location”, that “in virtually all cases the review of primary factors will result in a decision on domicile”, and that “the development of a domicile case involves more than a mere listing of the factors that exist in one location versus those in other locations; the analysis must demonstrate a positive link or bond to New York or the other locations.” At p. 26 it suggests “applying the accounting principle of a ‘T’ account to the factors”, aligning those favouring New York against those favouring elsewhere so that auditor and taxpayer have “a visual summary of the reasons for a specific determination.” The T account displays a conclusion rather than reaching one — the same passage forbids deciding a case by which column is longer.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

How convincing the evidence has to be

Who must prove an escape is settled further up by the regulation, and that allocation is not part of this section. How convincingly a case must be made is a different question, and the answer below is the manual’s — stated as the manual states it, including where the manual says it comes from.

The “clear and convincing” standard everyone cites for a New York domicile change comes from the Department’s manual, which attributes it to a case. Under the heading “Burden and Degree of Proof”, the Nonresident Audit Guidelines state at p. 10 that “the burden of proving a change of domicile is upon the party asserting the change”, that “the evidence to effect a change of domicile must be ‘clear and convincing’ as noted in Bodfish v. Gallman”, and that “thus, a taxpayer who has been historically domiciled in New York State who is claiming to have changed his domicile must be able to support his intentions with unequivocal acts.” Two things about that chain are worth a client knowing. Neither §605 nor 20 NYCRR §105.20 contains the phrase. And the manual paraphrases rather than quotes: only the two words sit in quotation marks, joined to the case by “as noted in”, with no passage of the opinion set out and no pinpoint given, while the places where the manual does block-quote Bodfish (50 AD2d 457) contain the phrase nowhere. What is stated here is that the manual states this standard and attributes it to that case.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

The manual points the same standard at the Department, and attaches a consequence to falling short of it. The Nonresident Audit Guidelines state at p. 10 that “if the weight of the factors does not present a ‘clear and convincing’ body of evidence that the taxpayer has changed his or her domicile to New York, then the individual is to be treated as a nonresident.” That is the half that matters to someone the Department says moved in, and it has no counterpart in the outbound direction. It is an instruction the Department gives its own auditors rather than a right a taxpayer can enforce — the same manual says of itself that it has no legal force and that it binds audit staff.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91Departmental practice, not law — the Department’s own audit manual.

We could not read that decision. The case the manual names for the clear-and-convincing standard is old enough that the official bound-volume series published by the New York courts does not reach back to it, and it could not be retrieved at any official source. Neither the statute nor the regulation contains the phrase. So what is stated above is what the manual says and what the manual attributes it to — not a holding we have read, and not a proposition of New York law we are able to verify. That is a fact about our research rather than about the law, which is why it is written here in prose and is not among the statements.

One thing about the manual’s age

The edition of the Nonresident Audit Guidelines this page draws on is dated December 2021, printed on its cover and in the running header of every page. A case-insensitive full-text search of that document for “Obus” returns no hits, and so does a search for “206 AD3d”. Matter of Obus was decided in June 2022, and leave to appeal was denied in February 2023. Matter of Gaied, decided in 2014, appears in the manual in several places and is discussed at length and treated as governing: at p. 42 the manual writes that the Court “concluded that there is no rational basis for this interpretation”, and at p. 46 that “by using these factors ... we are also satisfying the Court of Appeals’ requirement in Gaied”. Those are publication dates and document contents. Nothing is concluded from them here.Nonresident Audit Guidelines, December 2021, pp. 4-7, 9-12, 26, 29-30, 36-37, 42, 44, 46, 49-55, 86 and 91 · 22 NY3d 592 (2014) (Pigott, J.), argued January 16, 2014, decided February 18, 2014; opinion pp. 594–598, reversing 101 AD3d 1492 (3d Dept 2012) · 206 AD3d 1511 (3d Dept June 2022) (Pritzker, J.), pp. 1511–1515; lv denied 39 NY3d 907 (Feb. 9, 2023)

That statement is a sequence of dates and a search of a document. It is set out for that reason and no other. We draw no conclusion from it, and none should be read into it here.

New York City

New York City runs the same two tests, measured against the City. N.Y. Tax Law §1305(a) defines a city resident individual by the same two branches as §605(b)(1): domicile “in the city wherein the tax is imposed”, subject to escapes, and maintaining “a permanent place of abode in such city” while spending more than the day threshold “of the taxable year in such city”. The Department states the substitution plainly in the instructions to Form IT-201-I: “For the definition of a New York City or Yonkers resident, nonresident, and part-year resident, see the definitions of a New York State resident, nonresident, and part-year resident above, and substitute New York City or Yonkers in place of New York State.” What changes is the geography. This is not a statement that the City’s definition is identical to the State’s: the City also carries a definition of its own in its Administrative Code, which could not be read at any official source for this page, and differences are visible on the face of the texts that could be read.N.Y. Tax Law §1305(a) and (b); the whole section, (a) through (d), was read · Form IT-201-I (2025), pp. 30–31

New York City defines who its residents are in its own code, at Administrative Code §11-1705(b)(1), rather than adopting the State’s definition by reference. There is no clause anywhere in the chain saying that “city resident” has the meaning given in Tax Law §605 — the City writes out both tests, and every threshold in them is measured against the city rather than the state. The tell is a cross-reference: the City’s own 548-day clause points at §11-1754, its own change-of-status section.N.Y.C. Admin. Code §11-1705(b)(1), "City resident and city nonresident defined"; read at American Legal Publishing, edition stamped September 2026, section as amended 2018 N.Y. Laws Ch. 59

Having written its own definition, the City wrote the State’s. Administrative Code §11-1705(b)(1) is Tax Law §605(b)(1) with “city” substituted for “state”, word for word in both limbs — the abode-and-day-count test, and the condition that the taxpayer, spouse and minor children are not present for more than the ninety-day ceiling during the 548-day window. That matters beyond the city line: the State regulation writes that family condition as a maintained abode at which the spouse or the children are present, and neither the State statute nor the City code says any such thing. Whether the regulation reaches a city determination at all is a question no source here decides.N.Y.C. Admin. Code §11-1705(b)(1), "City resident and city nonresident defined"; read at American Legal Publishing, edition stamped September 2026, section as amended 2018 N.Y. Laws Ch. 59 · N.Y. Tax Law §605(a)(1), (b)(1), (b)(2) and (b)(5); the whole section, (a) through (c), was read

A city nonresident is defined by subtraction: “A city nonresident individual means an individual who is not a city resident.” The two categories are exhaustive, so failing both limbs of the city resident test is the whole of it. That says nothing about a part-year city resident — the Code cross-refers to Administrative Code §11-1754 for the effect of a change of resident status, so the City has its own provision on the point, and it has not been read for this page.N.Y.C. Admin. Code §11-1705(b)(1), "City resident and city nonresident defined"; read at American Legal Publishing, edition stamped September 2026, section as amended 2018 N.Y. Laws Ch. 59

Where this stops

New York City is covered as far as its definition and no further. The City’s Administrative Code could not be retrieved by any automated route — its publisher refuses fetchers and no archived copy exists — so §11-1705 was read at the publisher’s own page in a browser and supplied to this build. The source record says that, rather than implying a retrieval that did not happen.What is not here: the City’s part-year mechanics, which live in Administrative Code §11-1754 and have not been read; and — the question this page deliberately leaves open — whether the State regulation, as opposed to the State statute the City copied out, reaches a City determination at all. No source read for this page decides it.This paragraph previously said that who is a City nonresident was also not established. It is: §11-1705(b)(2) defines it residually, and that sentence was in the section all along.

New Jersey and Connecticut residence are not covered. Each has its own definition and its own rules, and none of what is above transfers to either. If you have moved between two of the three states, which returns to file is a different guide.

Some things are deliberately absent. There is nothing here on the domicile of spouses or of children, nothing on a service member’s abode outside the State, and nothing on the Department’s secondary factors — a half-remembered checklist of those is exactly what this page exists to argue against. Where a court has said an inquiry is fact-intensive, no list on this page turns it into a test.

Myung Keon Kim CPA prepares and files New York and New Jersey returns and represents clients in residency examinations. Nothing here is advice on a particular set of facts, and residency is a subject where the facts decide everything.

Rendered from 56 verified records, of which 14 are marked as departmental practice. Last verified: 2026-09-09