January 21, 2022
New York updates nonresident audit guidelines to change 11-month rule to 10-month rule for determining residency
In December 2021, the New York State Department of Taxation and Finance (Department) revised its Nonresident Audit Guidelines (the 2021 Guidelines), which were last updated in 2014 (the 2014 Guidelines). While several changes were made, one of the most important was changing the 11-Month Rule for determining whether someone is a permanent resident of New York state to a 10-Month Rule, beginning in tax year 2022.
Under New York law, individuals can only be deemed a New York resident if they:
The 2014 Guidelines defined "substantially all of the tax year" as generally requiring possession and/or access to the abode for more than 11 months, the so-called 11-Month Rule. As the 11-Month Rule is not in the NYS statute or regulations, its application has been largely discretionary.
The 2014 Guidelines permitted an auditor to deem a residence to be a permanent place of abode, even if the taxpayer possessed it for 11 months or less (for example, a taxpayer repeatedly leased an apartment for exactly 11 months every year). The 2014 Guidelines stated that, "[b]ecause of the potential for abuse … the 11-[M]onth [R]ule will generally be applied by Audit in those years where a taxpayer either acquires or disposes of a residence." In other words, the 11-Month Rule is a "general rule" and not an "absolute rule." If the rule applied, as was generally the case, individuals would only be deemed a statutory resident if they spent 184 or more days in New York (full or partial days) and had access to a residence in New York for more than 11 months during the tax year.
Beginning in tax year 2022, the December 2021 Guidelines consider "'substantially all of the year" to mean "a period exceeding 10 months." The 11-Month Rule, however, applies for tax years before tax year 2022 (i.e., through tax year 2021).
While the 2014 Guidelines "generally" apply the 11-Month Rule in a year in which the taxpayer acquires or disposes of a residence, the December 2021 Guidelines "will" apply the 10-Month Rule "in tax years where [taxpayers] either acquir[e] or dispos[e] of their residence." In other words, the 2021 Guidelines not only change the period from 11 months to 10 months, they also appear to only apply the rule when a taxpayer acquires or disposes of the property in that particular tax year, further narrowing the rule's applicability (for example, individuals who lease out their home every summer will still be deemed to have a permanent place of abode). The 10-Month Rule remains a "general rule" and not an "absolute rule."
Nonresident New York taxpayers should review the changes to the audit rule and determine whether the change from an 11-Month Rule to a 10-Month Rule will cause them to be deemed a New York resident.
1 20 NYRCRR Section 105.20(a)(2).
2 N.Y. Tax Law Section 605(b)(1).