New York—Personal Income Tax: Taxpayers With Restricted Access to Apartment Did Not Maintain Permanent Abode

The New York Department of Taxation and Finance has issued a personal income tax advisory opinion concerning taxpayers who changed their domicile from New York to Connecticut and had restricted access to their New York City residence prior to its sale. The taxpayer, who spent more than 183 days in New York, could not be taxed as a resident for that year because the taxpayers did not maintain a permanent place of abode in New York. The taxpayers entered into a real estate listing contract under which they were legally bound to turn over their keys to the real estate agent, remove all their personal possessions from the apartment, and agree not to live in the apartment during the period of the sales process. Although the taxpayers did pay for maintenance until the property was sold, they were contractually prohibited from entering the apartment during the period when it was being shown to potential buyers. Accordingly, because the taxpayers did not have unfettered use of their apartment, they did not maintain a permanent place of abode in New York.

TSB-A-11(9)I, New York Commissioner of Taxation and Finance, November 8, 2011