State tax filing

@kristinelby  Again, since you've worked in this field I respect your position.  However, I see verbiage in the statute itself that supports what @TomD8 has posted previously.  If you notice in his post previous to my most recent one, he brings up Memo TSB-M-06(5)I, which is the state's taxation department's application of Regulation 132.18(a) when it comes to telecommuters, which is the topic in question.  Here is the point I believe that is being missed from the Reg. itself, which I am pasting verbatim from this website that is quoting the statute Casetext: N.Y. Comp. Codes R. & Regs. tit. 20 § 132.18:

(a) If a nonresident employee (including corporate officers, but excluding employees provided for in section 132.17 of this Part) performs services for his employer both within and without New York State, his income derived from New York State sources includes that proportion of his total compensation for services rendered as an employee which the total number of working days employed within New York State bears to the total number of working days employed both within and without New York State. The items of gain, loss and deduction (other than deductions entering into the New York itemized deduction) of the employee attributable to his employment, derived from or connected with New York State sources, are similarly determined. However, any allowance claimed for days worked outside New York State must be based upon the performance of services which of necessity, as distinguished from convenience, obligate the employee to out-of-state duties in the service of his employer. In making the allocation provided for in this section, no account is taken of nonworking days, including Saturdays, Sundays, holidays, days of absence because of illness or personal injury, vacation, or leave with or without pay.  (Bolding and italics added)

It is the part highlighted that we are mentioning could apply in the taxpayer's case, because of telecommuting and the convenience principle.  According to this statute, physical presence (even for the year) without New York is moot if the work involved is qualified as "at the convenience distinguished from necessity of the out-of-state-duties in the service of his employer".  In that case, the employee could in theory spend the entire year without New York and still be considered taxable by statute if those services are performed on convenience, which is the center of the telecommuting issue.

This brings us back to the Memo referenced earlier.  In it, New York recognizes when a telecommuter is performing such work out of "necessity" versus "convenience".   There is one catch-all primary factor, which, if established, constitutes necessity:  if the home office is closely located to specialized facilities (it gives an example of a race track for testing vehicles, which I remember comes directly from case law).  Otherwise, to be considered necessity, the home office would need to meet at least 4 of the following conditions:

1. The home office is a requirement or condition of employment.
2. The employer has a bona fide business purpose for the employee’s home office location.
3. The employee performs some of the core duties of his or her employment at the home office.
4. The employee meets or deals with clients, patients or customers on a regular and continuous basis at the home office.
5. The employer does not provide the employee with designated office space or other regular work accommodations at one of its regular places of business.
6. Employer reimbursement of expenses for the home office.

If the taxpayer can establish 4 of the foregoing, then they also must establish 3 of the next conditions:

1. The employer maintains a separate telephone line and listing for the home office
2. The employee’s home office address and phone number is listed on the business letterhead and/or business cards of the employer.
3. The employee uses a specific area of the home exclusively to conduct the business of the employer that is separate from the living area. The home office will not meet this factor if the area is used for both business and personal purposes.
4. The employer’s business is selling products at wholesale or retail and the employee keeps an inventory of the products or product samples in the home office for use in the employer’s business.
5. Business records of the employer are stored at the employee’s home office.
6. The home office location has a sign indicating a place of business of the employer.
7. Advertising for the employer shows the employee’s home office as one of the employer’s places of business.
8. The home office is covered by a business insurance policy or by a business rider to the employee’s homeowner insurance policy
9. The employee is entitled to and actually claims a deduction for home office expenses for federal income tax purposes.
10. The employee is not an officer of the company.

According to Memo TSB-M-06(5)I, this is what determines whether convenience is applied or not.  I would probably grant that spending 0 days in New York may go a long way to proving some of the factors in that list that determines convenience for the telecommuter, but respectfully speaking, by statute is not the sole determining factor.  

Again, I am not so bold as to say your information is wrong; it's quite the contrary.  You give good information that can help someone fighting with New York over the taxability of their income with possibilities on how they can win their argument, and that's a good thing.  In the end, for me, reading the statute, it boils down to the individual case proving that their work was necessity and not convenience.  (And having worked with auditors personally, I know they can be lenient and give the taxpayer the benefit of the doubt when it is reasonable to do so).