New York Codes, Rules and Regulations › Title 20 - DEPARTMENT OF TAXATION AND FINANCE › Chapter II - Income Taxes and Estate Taxes › Subchapter A - New York State Personal Income Tax Under Article 22 Of The Tax Law › Article 5 - Withholding of New York State Personal Income Tax › Part 171 - Requirement Of Withholding New York State Personal Income Tax From Wages › Section 171.6 - Determining New York State personal income tax to be withheld on wages paid to nonresident of New York State

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
					 General. An employer must deduct and withhold New York State personal income
					 tax on all wages paid to an employee who is a nonresident of New York State for
					 services performed in New York State. The New York State personal income tax to
					 be deducted and withheld is to be determined in accordance with section
					 171.4 
					 of this Part, Appendix 10 of this Title, and this section. If the services of a
					 nonresident employee are performed entirely in New York State, the employer
					 must deduct and withhold New York State personal income tax from all wages paid
					 to such employee. Wages paid to a nonresident employee for personal services
					 rendered entirely without New York State are not subject to withholding of New
					 York State personal income tax.
(b)
					 Income of a nonresident for services performed partly within and partly without
					 New York State.
(1) If a nonresident employee
					 performs services partly within and partly without New York State, such
					 nonresident employee should file a Certificate of Nonresidence and Allocation
					 of Withholding Tax (form IT-2104.1) for the purposes indicated in paragraphs
					 (2) and (3) of this subdivision.
(2) The employer should withhold New York
					 State personal income tax on the basis of the apportionment shown by the
					 nonresident employee on form IT-2104.1, but must nevertheless make necessary
					 adjustments during the year so that the proper amount of New York State
					 personal income tax is withheld from the employee's wages. For the purpose of
					 making these adjustments, the proportion of remuneration which is paid for
					 services rendered within New York State is to be determined as follows:
(i) If the services are rendered by a
					 traveling salesman, agent or other employee whose compensation on the basis of
					 commissions depends directly on the volume of business transacted by such
					 employee, the amount attributable to services within New York State is that
					 proportion of the compensation received which the volume of business transacted
					 by the employee within New York State bears to the volume of business
					 transacted by the employee within and without New York State.
(ii) With respect to all other employees, the
					 amount of wages attributable to services within New York State is that
					 proportion of the total compensation 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, exclusive of nonworking days.
					 Nonworking days usually include Saturdays, Sundays, holidays, and days of
					 absence because of illness, personal injury, vacation or leave with or without
					 pay.
(3) The portion of
					 wages allocable to New York State may be determined by the employer on the
					 basis of the preceding year's experience, except that the employer must make
					 any necessary adjustments during the year to insure that the required New York
					 State personal income tax is withheld for the current year. If the employee
					 reasonably expects that the preceding year's experience will not be applicable
					 to the current year, he may furnish to his employer a certificate on form
					 IT-2104.1, estimating the proportion of his wages allocable to New York State,
					 or the employer himself may make such estimate and may then withhold New York
					 State personal income tax on the basis thereof; in either case, however, the
					 employer is required to make the necessary adjustments during the year so that
					 the proper amount of New York State personal income tax is withheld from the
					 employee's salary for the current year.
(4) Where a nonresident employee will work
					 only a short period of time within New York State and it is reasonably expected
					 that the total wages of such nonresident employee for services rendered within
					 New York State will not exceed the amount of such employee's personal
					 exemptions, the employer need not withhold or deduct any amount of New York
					 State personal income tax from such employee's wages until the aggregate amount
					 paid to such employee exceeds the amount of such employee's personal
					 exemptions.
(5) An employer is
					 required to withhold New York State personal income tax on all wages paid to a
					 nonresident employee who works partly within and partly without New York State,
					 unless there is filed with such employer a Certificate of Nonresidence and
					 Allocation of Withholding Tax on form IT-2104.1, or unless the employer
					 maintains adequate current records to determine accurately the amount of wages
					 from New York State sources. The mere filing of the certificate on form
					 IT-2104.1 does not, however, relieve the employer from the duty of withholding
					 the proper amount of New York State personal income tax from wages paid to an
					 employee. Form IT-2104.1 must be retained by the employer and must be available
					 for inspection by representatives of the Tax Commission.