New York (Yonkers) residency filing requirements

I am a NY CPA but I believe that all states would probably follow similar rules. In NY temporary absences do not change one's residency. If your client has not done anything that would lead one to believe he is planning on permanently changing his residency from NY to somewhere else then he is a NY full-time resident. The amount of time one spends in NY is only one criteria in determining if residency has changed. Just as important if not more important is:

has he given up or sold his NY home/apartment?
has he obtained a drivers license from somewhere else?
is he planning on returning in 2008?
Does he still receive mail in NY?
does he any other continuing activities in NY?

It is sometimes not any easy call but it is clearly more involved than where did he happen to spend the majority of his time in 2007? If it was that easy all of my clients who spend the winter in FL would make sure they spent at least 183 days a year in FL and not pay NY taxes at all.

Even if he could justify not being a resident for part of the year it would sound from your facts that he was a resident for at least part of the year so he would at least have to file IT-203 for part-year residents.

The fact he received a W-2 with NY withholding means that he must have physically worked inside NY during the year so he would at least be subject to a non-resident return. NY is one of those states that requires withholding if you work within the borders of NY, so he would have to file an IT-203 as either a part-year resident or non-resident.

But also be aware that NYS is very aggressive catching workers who owe NYS taxes even if they never worked a day in NYS. The court ruled that a TN resident employee of a NY company owed NYS taxes.

>>he spoke to a tax attorney that was familiar with New York State law<<

Do you think "familiar with" is a good enough credential for tax law? It's hard to evaluate a third-hand answer because we don't know what the actual question was. If all he asked was, "What if I am paid by a NY company but I'm based in FL," then such an answer might be true.

Most states use the concept of domicile in addition to residency, so it is possible to be a resident of more than one state at the same time. Anyway, there is nothing in the original post to suggest that the taxpayer was a resident of any particular state besides New York.

Besides the 183 days for residency, NYS also looks at your near and dear. Where was the rest of the family while he was out of state on business. And don't forget Yonkers income tax. Sounds like he should be filing an IT-201 as a resident rather than an IT-203.