Nonresident Audit Guidelines - Government of New York
2014Nonresident Audit Guidelines
June 2014
Nonresident Audit Guidelines
State of New York - Department of Taxation and Finance
Income Franchise Field Audit Bureau
Page | 1 June 2014
TTaabbleleoof fCCoonntetenntsts
Nonresident Audit Guidelines
Section I. II.
III. IV. V.
VI.
Introduction
Title
Overview of the Nonresident Audit
A. New York State Personal Income Tax Law B. New York State Personal Income Tax Regulations
Scope of the Nonresident Audit
Domicile
A. Definition B. Intention and Motive C. Continuation and Change D. Burden and Degree of Proof
Factors to be Considered in Determining Domicile
A. Primary Factors 1. Home 2. Active Business Involvement 3. Time 4. Items Near and Dear 5. Family Connections
B. Evaluation of the Factors C. Other Factors Affecting Domicile D. Nonfactors of Domicile E. Tax Relief for a Domiciliary F. Foreign Domicile
1. Intent 2. Factors 3. Citizenship Statutory Residence
A. Definition B. Permanent Place of Abode, Part I: The Basics
1. Physical Attributes 2. Nature of the Relationship 3. Conclusion
June 2014
Page(s) 4-5
6 6 6 7-8
9-13
9 9-10 10-12 12-13
14-50 14-33 15-21 22-25 25-29 29-31 32-34 34-37 37-40 40-41 42-44 45-50 45-46 46-49 49-50 51-74 51 51-59 52 52-58 58-59
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Section
VII. VIII.
IX.
Table of Contents
Nonresident Audit Guidelines
Title
C. Permanent Place of Abode, Part II: Other Issues 1. Residence Not Habitable 2. Corporate Apartments 3. Change of Ownership 4. Life Estate Interests 5. Minor Children 6. College Students
D. Substantial Part of the Year E. When Domicile Changes F. A Day Spent in New York G. Temporary Stay H. Auditor Advisory
Resident Credit A. General B. Requirements C. Limitations D. Dual Residents E. Other Considerations Audit Techniques A. Pre-Audit Analysis B. Communicating with the Taxpayer C. Accumulation and Analysis of Data D. Concluding the Audit Appendix Residency Questionnaire Permanent Place of Abode Citation of Domicile and Statutory Residency Cases
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Page(s)
59-62 59 59-60 61 61 61-62 62 63-64 64-65 65-69 69-74 74
75-81 75 75-77 77-78 79-80 80-81 82-95 82-84 84-86 86-91 91-95 96-128 96-98 99 100-128
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Nonresident Audit Guidelines
I. INTRODUCTION
June 2014
These guidelines explain the tax law and regulations concerning residency, discuss audit policies and procedures regarding the subject, and address various technical and complex issues through examples and explanations.
These guidelines have been established to ensure uniformity and consistency in the examination of nonresident returns. The procedures and techniques apply to Articles 22, 30 (New York City), and 30-A (Yonkers) of the New York State Tax Law and Chapter 17 of Title 11 of the New York City Administrative Code.
Guidelines are issued primarily to provide guidance to audit staff. According to Regulation 2375.12, they have no legal force or effect nor do they establish precedent in the particular subject matter. They are generally binding on audit staff who are expected to follow the rules and procedures outlined in the guidelines when conducting an audit.
That being said, the Department recognizes that there may be situations encountered on audit when such rules and procedures may not be appropriate. In these situations, it is up to the supervisor and the auditor to work together to ensure that the spirit of the guidelines is carried out when interacting with taxpayers and their representatives. This requires flexibility in applying the guidelines coupled with a commonsense, practical approach in auditing nonresident cases.
Note: These guidelines do not replace existing law, regulations, case law or informational materials issued by the Department.
Throughout the guidelines, references are made to the following sources:
The Internal Revenue Code (IRC) and related regulations;
Articles 22, 30 and 30-A of the New York State Tax Law;
Title 20 of the personal income tax regulations (NYCRR);
New York State court cases;
Administrative decisions of the Division of Tax Appeals (DTA);
New York State Tax Commission decisions (STC);
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Nonresident Audit Guidelines
June 2014
Advices of Counsel issued by the Office of Counsel (LBW); Advisory opinions (A Memos) and TSB memoranda (M Memos) issued by the Department.
The above sources should be referred to when researching a particular issue. References to tax law in these guidelines are meant to highlight general points of law and are not meant to be an authority on interpreting the law.
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