Guides / Residency audits
New York residency audits and the 183-day test.
New York runs one of the most active residency audit programs in the country, and it is data-driven rather than random. There are two independent routes to being taxed as a New York resident, and satisfying either one is enough. People who moved away and still get assessed were almost always caught by the second route, which has nothing to do with where they consider home.
The two tests
How residency is determined
Domicile is the one people think about
Your domicile is the place you intend to be your permanent home, and it continues until you establish a new one. Changing it requires clear and convincing evidence, and New York looks at five primary factors: the use and value of your homes, active involvement in a business, where you spend your time, where the items near and dear to you are kept, and where your close family connections are. Intent is measured by conduct, not by declaration.
Statutory residency does not care about intent
You are a statutory resident if you maintain a permanent place of abode in New York for substantially all of the year and spend more than 183 days in the state. That is a mechanical test. A person genuinely domiciled in Florida who keeps a Manhattan apartment and spends 184 days in New York is a New York resident, taxed on worldwide income.
A day means any part of a day
Presence in New York for any part of a day generally counts as a full day, with narrow exceptions for travel through the state and for days confined by illness. Arriving at 11 pm and leaving at 7 am is two days. This is where careful people lose, because the intuition is that a day means something substantial.
Permanent place of abode has real content
The dwelling must be suitable for year-round living and maintained for substantially all of the year. The Court of Appeals held in Gaied that the taxpayer must also have a residential interest in the property, so an apartment maintained for a parent and not used by the taxpayer as a residence is not an abode for this purpose. That decision matters, and it is fact-specific rather than a general escape.
New York City applies the same tests separately
City residency is determined on the same domicile and statutory rules, applied to the City rather than the State. Someone can be a New York State resident and not a City resident, and the days are counted separately.
Inside an audit
What the Department actually asks for
The burden is on you
The taxpayer proves non-presence, not the state proving presence. Absent records, days default against you. That single procedural point explains why residency audits are won and lost on documentation quality rather than on argument.
The evidence is granular and electronic
Auditors request cell phone records showing tower locations, E-ZPass and toll records, credit and debit card activity, building access swipes, calendars, travel itineraries, medical and dental appointments, and utility usage patterns at each residence. They cross-reference them against each other, and inconsistencies are pursued.
Being a statutory resident is expensive
A statutory resident is taxed on all income from every source, not just New York income. A credit is available for tax paid to another state on income sourced there, but it does not cover intangible income such as interest, dividends, and most capital gains, which is precisely the income a retired or investing taxpayer has most of.
Remote work for a New York employer is its own trap
New York applies a convenience of the employer rule: days a nonresident works from home for a New York employer are generally treated as New York workdays unless the work is performed outside New York out of necessity for the employer, not for the employee’s convenience. Many people who moved away continue to be taxed on their full salary.
Audits look back several years
Residency examinations routinely cover multiple years and often begin with a questionnaire rather than an assessment. The response to that first questionnaire frames everything that follows, which is why it is worth handling with representation from the beginning.
This page is general information about how the rules work, not tax or legal advice for a specific situation. Facts change outcomes. Talk with the firm before acting on anything here.
Keep reading
Related pages
Questions
Common questions
I spent fewer than 183 days in New York. Am I safe?
From the statutory test, yes, provided you can prove it. You can still be taxed as a resident if New York remains your domicile, which is a separate question decided on the five primary factors rather than on day count.
Does a vacation home count as a permanent place of abode?
It can. A dwelling suitable for year-round use, maintained for substantially all of the year and available to you, generally qualifies regardless of how you describe it. Seasonal properties genuinely unusable in winter are treated differently, and the distinction is factual.
How should I track my days?
Contemporaneously, and with corroboration. A calendar alone is weak. A calendar supported by card transactions, toll records, flight confirmations, and phone data is strong. Build it as you go, because reconstructing three years afterward is expensive and less convincing.
I work remotely from Florida for a New York company. Is my salary taxable in New York?
Frequently yes, under the convenience of the employer rule, unless the work is done outside New York because the employer requires it there. Employer documentation of a genuine business necessity matters, and a general remote-work policy is usually not enough on its own.
What triggers a residency audit?
Common triggers include filing a part-year or nonresident return after years of resident returns, a large drop in reported New York income, continued New York address information on third-party filings, sale of a New York business, and simply having high income. It is an analytics-driven program, not a random one.
The records are the case.
If you have New York exposure and a genuine claim to be a nonresident, the time to build the record is now, not when the questionnaire arrives.