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SALT TALK: Permanent Place of Abode:  Let’s Eat Out

Posted by Wayne Berkowitz CPA, J.D., LL.M. on Dec 7, 2015 7:00:00 AM
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In my last blog, I discussed the physical aspects of a permanent place of abode (PPA) as defined by New York State. Despite the State’s own regulations stating that a PPA must contain “facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc.,” clearly the State’s view incorporates a broad view of “ordinarily” and interprets “such as” to mean something other than must.

In a 2007 Advisory Opinion, the taxpayer inquired of the Department of Taxation whether a hotel room and/or an apartment that does not have a cooking facility is a PPA. Not surprisingly, the Department concluded that a hotel room without cooking facilities and an apartment that had cooking facilities removed can, in fact, rise to the level of being a PPA. The Opinion does an end run around the regulation by stating that “[t]he words ‘maintain’ and ‘permanent’ are not limited to any particular usage but, instead, may apply to a variety of circumstances inherent in the subject matter at hand.” 

The Department focused on the time component of permanency (the taxpayer was either entering into a long-term lease for the hotel room or was purchasing the apartment) and was not concerned with the fact that one may not permanently wish to eat out every night or knock on your neighbor’s door to use the bathroom.

Practically, what does this all mean to you? Well, despite the wording of the State’s regulation (which carries a higher authority than an Advisory Opinion, which is simply the Department’s opinion), an auditor is going to remain unconvinced that you don’t have a PPA simply because you don’t have a kitchen. Are there steps you can take that aren’t as drastic and still not have a PPA? There are circumstances where you can even remodel your kitchen and still not have a PPA. But every taxpayer is different and a one size fits all approach is going to land you in the soup in your very own kitchen.

Uncertain about your exposure to permanent place of abode rules and the impact on your tax requirements? Contact me at wberkowitz@berdonllp.com.

Wayne Berkowitz, a tax partner and head of the State and Local Tax Group at Berdon LLP, advises on the unique requirements of governments and municipalities across the nation.

Topics: SALT TALK

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