Even if you successfully change your domicile from New York, you can still be taxed as a statutory resident if you maintain a permanent place of abode in the state and spend more than 183 days there. Understanding this rule is critical to avoiding unexpected tax liability.
What Is Statutory Residency?
New York Tax Law Section 605(b)(1)(B) creates a second path to residency status, independent of domicile. You’re a statutory resident if:
- You maintain a permanent place of abode in New York, AND
- You spend more than 183 days in New York during the tax year
If both conditions are met, you’re taxed as a New York resident on your worldwide income—even if your domicile is in Texas, Florida, or anywhere else.
What Is a “Permanent Place of Abode”?
A permanent place of abode is a residence that:
- You maintain for substantially all of the tax year (11+ months)
- Is suitable for year-round living
- Is available for your use at any time
It doesn’t matter if you:
- Own or rent the property
- Actually use it frequently
- Share it with others
- Maintain it primarily for someone else’s use
What Qualifies:
- House or apartment you own
- Apartment you rent (even month-to-month)
- Home owned by your spouse
- Property you have the right to use (even if owned by a trust or LLC)
What Doesn’t Qualify:
- Hotel rooms or short-term rentals
- Property you rent out to unrelated third parties at fair market value
- Property you maintain for less than 11 months
- Vacation home you use only occasionally (this is disputed—see below)
The Obus Decision
In Matter of Obus (2022), New York’s highest court ruled that a vacation home used only sporadically may not constitute a permanent place of abode for statutory residency purposes. The court held that the property must be maintained for “residential living” rather than occasional use.
This decision created uncertainty about what qualifies as a permanent place of abode. The DTF has not fully accepted the Obus reasoning and continues to argue that any property maintained for your use counts, regardless of how often you use it.
The 183-Day Count
If you maintain a permanent place of abode in New York, you must track your days carefully. You’re a statutory resident if you spend more than 183 days in New York during the tax year.
What counts as a “day in New York”:
- Any day you’re physically present in NY for any part of the day
- Days you arrive in NY (even late at night)
- Days you depart from NY (even early in the morning)
- Days you work remotely from your NY residence
What doesn’t count:
- Days you’re in transit through NY to reach another destination (with proof)
- Days you’re completely outside NY for the entire 24-hour period
The “Any Part of a Day” Rule
New York’s rule is harsh: if you’re in the state for even one minute, it counts as a full day. Flying into JFK at 11:59 PM on December 31st counts as a day in New York for that tax year.
Common Scenarios
Scenario 1: You moved to Texas but kept your NY apartment
If you:
- Maintain your NY apartment for the full year
- Spend 184+ days in NY (even if your domicile is Texas)
- Result: You’re a statutory resident, taxed on worldwide income
Scenario 2: You moved to Texas and sold your NY home
If you:
- Sold your NY residence
- Have no other permanent place of abode in NY
- Result: You’re not a statutory resident, regardless of how many days you spend in NY
Scenario 3: You moved to Texas but your spouse stayed in NY
If:
- Your spouse maintains the NY home
- You have the right to use it
- You spend 184+ days in NY
- Result: You’re likely a statutory resident (the home is available for your use)
Avoiding Statutory Residency
To avoid statutory residency after leaving New York:
Option 1: Eliminate your permanent place of abode
- Sell your NY property
- Terminate your lease
- Ensure you have no right to use any NY residence
Option 2: Stay under 183 days
- Track your days meticulously
- Limit NY visits to well under 183 days (aim for 150 or fewer for safety)
- Maintain contemporaneous records
The Interaction with Domicile
You can be:
- A domiciliary resident (NY is your domicile)
- A statutory resident (you meet the permanent place of abode + 183-day test)
- Both (NY is your domicile AND you meet the statutory test)
- Neither (you’ve changed domicile and don’t meet the statutory test)
The key is that statutory residency is a separate test. Even if you successfully change your domicile to Texas, you can still be taxed as a NY resident if you maintain a permanent place of abode and spend too much time there.
Audit Risk
The DTF aggressively audits taxpayers who:
- Filed as NY residents in prior years
- Suddenly file as nonresidents
- Maintain property in NY
- Have high income
If you’re caught in a statutory residency audit, the burden is on you to prove either:
- You didn’t maintain a permanent place of abode, OR
- You spent 183 days or fewer in New York
Planning Strategies
If you’re keeping a NY property:
- Rent it to a third party at fair market value (eliminates your right to use it)
- Transfer ownership to someone else (and don’t retain usage rights)
- Sell it before the tax year begins
If you must maintain a NY property:
- Track your days obsessively
- Stay well under 183 days
- Document every day outside NY
- Prepare for potential audit
Our Guidance
We help clients avoid statutory residency by:
- Analyzing whether your NY property qualifies as a permanent place of abode
- Advising on timing of property sales or lease terminations
- Setting up day-count tracking systems
- Reviewing your situation before each tax year
- Defending against statutory residency audits
The 183-day rule is a trap for taxpayers who think they’ve successfully left New York. Don’t assume that changing your domicile is enough—eliminate your permanent place of abode or stay under the day threshold.
