It's likely you can. You might find some of the insights provided by @kristinelby helpful in the following thread that discusses this subject (and you will notice the references to statute and case law): Click Here
Based on the education I received on New York's convenience statute, there are at least three conditions that New York must be able to prove before applying convenience:
- You must be working both "within" and "without" New York State (both inside and outside of the state, and not exclusively remotely from outside of the state).
- You do not have, per New York's definition, a legitimate home office that creates "necessity" of working from home
- Work within New York is not "de minimis"
In the conversation, NY courts have established that 25% physical presence in New York is not de minimis. How much presence would be considered de minimis is a good question, because statute does not make it clear. However, it is more likely than not that 5 days in the year is still a de minimis presence. Those 5 days are still taxable to New York, but may not break the threshhold of "de minimis" presence in New York for the state to apply convenience. The answer I refer to above does provide ways to substantiate any claim for 2022 (in 2023) regarding this.
And there is also a way to establish that you have a bona fide home office. Please note New York's instructions in this link: (Click on blue link to open document, and scroll down to the subheading of the same name) Factors to apply to determine if a home office is a bona fide employer office.
@pabreu08
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