Apologies 20TCon, I'm just seeing this, and I don't know to the extent I will see notifications in the future.
Regarding your question- let me break it down a little more simply:
1. You never step foot in NYS. Your employer is not required to withhold and you are not required to pay NYS taxes on your wage income.
2. You come to NYS < 14 days. Your employer is not required to withhold, but you may be required to file, if your NYS source income exceeds the filing threshold.
3. You come to NYS = or >14 days. Your employer should be withholding, but even if they are not, you likely still have a filing requirement.
There is no day threshold for personal tax purposes, only withholding. For instance, if you made $1M a year and you worked one day in NY, you would still have to file and pay tax on that one day. The above applies to ALL nonresident employees working in the State, even for an out-of-State employer.
Its the convenience rule that makes it a bit more complicated, but it only applies to individuals who have NYS employers. So we have to do the above again:
1. You have a NY employer, you work ZERO days a year in NY. You do not have to pay NYS tax. You do not meet the minimum threshold under Federal due process. Your employer shouldn't be withholding either.
2. You have a NY employer, you work 1-24% of your work year in NY. First, check to see if the convenience rule may not apply. This is true if you your home office qualifies as a "bona fide home office of your employer", those rules are available in TSB-M-06(5)I. If your home office doesn't qualify, you exist in a "grey area" where there is no solid direction. Obviously the closer you are to 0% than 24%, the more likely you would be to succeed on your case, even at the audit level. Also, many audit cases agree with some settlement of less than 100% tax due, even in these "grey areas". So it may behoove you to take the position, fully disclose on your return, and have that discussion with an auditor.
3. You have a NY employer, you work 25% or more in NY, and your home office does not meet the bona fide office exclusion- all days worked from home and in NY are allocated to NYS.
**It should be noted that in Huckaby, Judge R.S. Smith had a strong dissent (you may read that here https://law.justia.com/cases/new-york/court-of-appeals/2005/2005-02413.html). If I had a taxpayer in the grey area range, I would point to that dissenting opinion.
Here is a good article about all of the relevant case law on the topic (as it stood in 2006) - https://www.hodgsonruss.com/newsroom-publications-NewYork_srevisedconvenienceruleprovidessomeclarity...
The entire 84 page PDF of the NYS Nonresident Allocation Guidelines - nonresident employees starts at page 11 https://www.hodgsonruss.com/media/publication/915_Nonresident%20Allocation%20Guidelines%202013.pdf
If the above still does not answer your question- please Google my username- and the word tax. Not difficult to track me down.
Kristine L. Bly, EA Private Client Services / Residency / Tax Controversy
Partner, Cohen & Company
