SALT TALK: Counting Days - The Sun May Actually Rise in the West

Posted by Wayne K. Berkowitz CPA, J.D., LL.M. on Apr 15, 2019 11:30:00 AM
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While most of us think of a day as the interval of light between two successive nights, taxing jurisdictions that look to the statutory residency test certainly had something much shorter in mind. While the New York statutes don’t bother to define what constitutes a day for purposes of the count, the regulations clearly state that “presence within New York State for any part of a calendar day constitutes a day spent within New York. . .”

Despite the broad reach of the regulations, two very limited exceptions are carved out. The first of these pertains to travel days within New York. If in New York solely to board a plane, ship train, bus, etc. to travel to a point outside of New York, this will not count as a day.

Be careful: solely means just that. For example, if you travel from New Jersey and go straight to JFK Airport to board a plane, that won’t count as a day. But if you arrive at your Manhattan apartment 11:59 p.m. the night before, so that you can beat the traffic to the airport the very next morning, I have some bad news for you. You’ve just spent two days in New York!

Continuing travel begun outside the state to a point outside the state also won’t count as a day. So if you are driving from Florida to Maine and pass through New York (within one day), that won’t count as a day. Stopping at a gas station for a meal, to use the restroom, etc., will not be penalized, but be careful.

As one often cited case says, “[t]here is, unfortunately no shopping or dining exception . . .” Does this mean that if you buy a pair of sunglasses at a rest stop on the thruway, you have spent a day in New York? Probably not. However, if you live in Montvale, New Jersey, and drive over the border to Pearl River, New York, to have dinner, more bad news in on the way.

If you have residency questions, contact me at

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.



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