While I’m far from done blogging about residency issues and audits, the end of the year just seemed like the perfect time to recap what I’ve gone over with my faithful readers regarding one important aspect of the statutory residency test, the permanent place of abode (PPA).
Remember, assuming one is domiciled somewhere other than New York (New York State and/or New York City), if you don’t have a PPA, you can be in New York every day and not be a tax resident. For example, a New Jersey resident commuting to work in New York is certainly going to be present for more than 183 days (at least if he or she is an accountant), but he/she won’t be a tax resident if there is no PPA.
Nothing is ever quite so simple. We spend a great deal of time focusing our clients on not getting caught up in the ugly rumors spread at the country club as to what will and will not constitute a PPA. My holiday gift to you, my dear readers, is a short list of what you need to remember about PPAs:
- It doesn’t matter who or what owns the living quarters. If it is available to you and you have unfettered access, it could be a PPA.
- It doesn’t matter if you never stay overnight in the living quarters (see unfettered access, above).
- Not having a kitchen or bathroom (especially if you have removed them) may not be enough to prevail in living quarters not rising to the level of a PPA.
- You don’t have to pay the rent (mortgage, maintenance, etc.) in order to have a PPA. You can contribute to living expenses in some other way.
- The highest court in New York has injected an element of common sense into the PPA debacle by stating that simply having a right or interest in a property isn’t enough to constitute a PPA. There must be some basis to show that the property was in fact used as a residence.
Keep these points in mind and you will be prepared. If you know you have a PPA, you will also know that you need to be aware of your time spent in New York and gather the evidence you need to prove where you were on a contemporaneous basis.
If you are uncertain about how you can best be prepared to establish you PPA, contact me at firstname.lastname@example.org.
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.