Here is part 2 of the associated regulations:
Please note in these regulations that an undergraduate student who maintains an apartment is not defined as a resident individual. That was a recent change to fix an obvious problem with students not wanting to attend school in New York where they might need to live off campus. However, the regulations continue to define graduate students as residents under the same circumstances. Since this entire area is relatively new, you will not see any of this in the audit guide they use which has not been revised since that change was made. Please see NY State TSB-M-09(15)I here:
which I am not quoting in its entirety below (but whose text I have deviously modified to highlight what I am contending is true in the above paragraph):
(4) A person can have only one domicile. If a person has two or more homes, such person's domicile is the one which such person regards and uses as such person's permanent home. In determining such person's intentions in this matter, the length of time customarily spent at each location is important but not necessarily conclusive. It should be noted however, as provided by paragraph (2) of subdivision (a) of this section, a person who maintains a permanent place of abode for substantially all of the taxable year in New York State and spends more than 183 days of the taxable year in New York State is taxable as a resident even though such person may be domiciled elsewhere.
(i) Husband and wife. Generally, the domicile of a husband and wife are the same. However, if they are separated in fact, they may each, under some circumstances, acquire their own separate domiciles even though there is no judgment or decree of separation. Where there is a judgment or decree of separation, a husband and wife may acquire their own separate domicile.
(ii) Children. A child's domicile ordinarily follows that of such child's parents, until such child reaches the age of self-support and actually establishes his or her own separate domicile. Where the mother and father have separate domiciles, the domicile of the child is generally the domicile of the parent with whom such child lives for the major portion of the year. The domicile of a child for whom a guardian has been appointed is determined by the facts and circumstances of the situation and is not necessarily determined by the domicile of the guardian.
(6) Members of the Armed Forces. Section 514 of the Federal Soldiers' and Sailors' Civil Relief Act of 1940, as amended, (50 U.S.C. Appx. § 574) provides that for purposes of taxation, an individual in the Armed Forces of the United States is not deemed to have lost such individual's domicile in any state solely by reason of being absent therefrom in compliance with military orders. Thus, such Federal law insures that an individual in the Armed Forces of the United States domiciled in New York State would not be deemed a domiciliary for income tax purposes in another state in which such individual is stationed. On the other hand, an individual in the Armed Forces of the United States domiciled in another state who is stationed in New York State would not be deemed a domiciliary, for personal income tax purposes, of New York State. The rule is, generally speaking, that the domicile of a person is in no way affected by service in the Armed Forces of the United States. A change of domicile has to be shown by facts which objectively manifest a voluntary intention to make the new location a domicile. It is possible for an individual in the Armed Forces of the United States to change such individual's domicile; however, the requisite intent is difficult to prove.
(e) Permanent place of abode.
(1) A permanent place of abode means a dwelling place of a permanent nature maintained by the taxpayer, whether or not owned by such taxpayer, and will generally include a dwelling place owned or leased by such taxpayer's spouse. However, a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode. Furthermore, a barracks or any construction which does not contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc., will generally not be deemed a permanent place of abode. A dwelling place maintained by a full-time student enrolled at an institution of higher education, as defined in section 606(t)(3) of the Tax Law, in an undergraduate degree program leading to a baccalaureate degree, and occupied by the student while attending the institution is not a permanent place of abode with respect to that student. A full-time student is an individual who is carrying a minimum courseload in such program of 12 credit hours per semester for at least two semesters, or the equivalent, during the individual's taxable year.
(2) The determination of whether an individual in the Armed Forces of the United States maintains a permanent place of abode outside New York State is not dependent merely upon whether such individual lives on or off a military base. This is only one of many factors to be considered in determining whether a permanent place of abode is being maintained outside New York State. Some of the other factors include the type and location of quarters occupied by such individual and members of such individual's immediate family and how and by whom such quarters are maintained. Barracks, bachelor officers' quarters, quarters assigned on vessels, etc., generally do not qualify as permanent places of abode maintained by an individual in the Armed Forces of the United States. Further, the maintenance of a place of abode by an individual in the Armed Forces of the United States outside New York State will not be considered permanent if it is maintained only during a duty assignment of a limited or temporary nature.
(i) Husband and wife. Generally, the domicile of a husband and wife are the same. However, if they are separated in fact, they may each, under some circumstances, acquire their own separate domiciles even though there is no judgment or decree of separation. Where there is a judgment or decree of separation, a husband and wife may acquire their own separate domicile.
(ii) Children. A child's domicile ordinarily follows that of such child's parents, until such child reaches the age of self-support and actually establishes his or her own separate domicile. Where the mother and father have separate domiciles, the domicile of the child is generally the domicile of the parent with whom such child lives for the major portion of the year. The domicile of a child for whom a guardian has been appointed is determined by the facts and circumstances of the situation and is not necessarily determined by the domicile of the guardian.
(6) Members of the Armed Forces. Section 514 of the Federal Soldiers' and Sailors' Civil Relief Act of 1940, as amended, (50 U.S.C. Appx. § 574) provides that for purposes of taxation, an individual in the Armed Forces of the United States is not deemed to have lost such individual's domicile in any state solely by reason of being absent therefrom in compliance with military orders. Thus, such Federal law insures that an individual in the Armed Forces of the United States domiciled in New York State would not be deemed a domiciliary for income tax purposes in another state in which such individual is stationed. On the other hand, an individual in the Armed Forces of the United States domiciled in another state who is stationed in New York State would not be deemed a domiciliary, for personal income tax purposes, of New York State. The rule is, generally speaking, that the domicile of a person is in no way affected by service in the Armed Forces of the United States. A change of domicile has to be shown by facts which objectively manifest a voluntary intention to make the new location a domicile. It is possible for an individual in the Armed Forces of the United States to change such individual's domicile; however, the requisite intent is difficult to prove.
(e) Permanent place of abode.
(1) A permanent place of abode means a dwelling place of a permanent nature maintained by the taxpayer, whether or not owned by such taxpayer, and will generally include a dwelling place owned or leased by such taxpayer's spouse. However, a mere camp or cottage, which is suitable and used only for vacations, is not a permanent place of abode. Furthermore, a barracks or any construction which does not contain facilities ordinarily found in a dwelling, such as facilities for cooking, bathing, etc., will generally not be deemed a permanent place of abode. A dwelling place maintained by a full-time student enrolled at an institution of higher education, as defined in section 606(t)(3) of the Tax Law, in an undergraduate degree program leading to a baccalaureate degree, and occupied by the student while attending the institution is not a permanent place of abode with respect to that student. A full-time student is an individual who is carrying a minimum courseload in such program of 12 credit hours per semester for at least two semesters, or the equivalent, during the individual's taxable year.
(2) The determination of whether an individual in the Armed Forces of the United States maintains a permanent place of abode outside New York State is not dependent merely upon whether such individual lives on or off a military base. This is only one of many factors to be considered in determining whether a permanent place of abode is being maintained outside New York State. Some of the other factors include the type and location of quarters occupied by such individual and members of such individual's immediate family and how and by whom such quarters are maintained. Barracks, bachelor officers' quarters, quarters assigned on vessels, etc., generally do not qualify as permanent places of abode maintained by an individual in the Armed Forces of the United States. Further, the maintenance of a place of abode by an individual in the Armed Forces of the United States outside New York State will not be considered permanent if it is maintained only during a duty assignment of a limited or temporary nature.
which I am not quoting in its entirety below (but whose text I have deviously modified to highlight what I am contending is true in the above paragraph):
Under the 2009 amendment, a permanent place of abode means a dwelling place of a
permanent nature maintained by the taxpayer, whether or not owned by the taxpayer, and will
generally include a dwelling place owned or leased by the taxpayer’s spouse. However, a
dwelling place maintained by a full-time student enrolled at an institution of higher education, as
defined in section 606(t)(3) of the Tax Law, in an undergraduate degree program leading to a
baccalaureate degree, and occupied by the student while attending the institution is not a
permanent place of abode with respect to that student.
For purposes of this new rule, a full-time student means an individual who is carrying a
minimum courseload in a baccalaureate program of 12 hours per semester for at least two
semesters, or the equivalent, during the tax year. Accordingly, the amendment does not provide
an exception for graduate students pursuing a post-baccalaureate degree.
permanent nature maintained by the taxpayer, whether or not owned by the taxpayer, and will
generally include a dwelling place owned or leased by the taxpayer’s spouse. However, a
dwelling place maintained by a full-time student enrolled at an institution of higher education, as
defined in section 606(t)(3) of the Tax Law, in an undergraduate degree program leading to a
baccalaureate degree, and occupied by the student while attending the institution is not a
permanent place of abode with respect to that student.
For purposes of this new rule, a full-time student means an individual who is carrying a
minimum courseload in a baccalaureate program of 12 hours per semester for at least two
semesters, or the equivalent, during the tax year. Accordingly, the amendment does not provide
an exception for graduate students pursuing a post-baccalaureate degree.
I will fill out a NY return ths year just on the off chance I thought of NY or said "I love NY" at some point during the year. That way I won't have to read all of the rules.
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