My wife and I currently live in TX. I still get my income from my job located in NY while my wife gets her solely from TX. When filling out my NY Non resident papers it ask for my Federal gross income and when calculating the taxes it use that income instead of mine. Should I be filing my federal jointly and my state separate? I am currently doing itemized on the federal.

Where do you work? Do you actually commute to NY and work there? Because if you actually work in TX, you have absolutely no obligation to pay any taxes to NY - even though the company may be headquartered there. So the first stepis - verify that you actually have to pay NY tax.

If you do work in NY, and hence owe taxes there - then yes, the NY non-resident form IT-203 (like most states) requires you to report your total household income, but taxes you only on the portion attributable to NY sources. The reason they ask for all income is to (a) determine what state income tax bracket you belong in, and (b) alllow them to compare the numbers you report to NY against the numbers you report to the feds, to presumably reduce cheating. As to filing separately or jointly for NY - I think you are required by NY to file jointly - the instructions for IT-203 states that if you you filed a joint federal return, are both non-residents, and only one of you had NY income you must select filing status 2 - which is joint. See "Item A" on page 14 of the instructions: http://www.tax.state.ny.us/pdf/2009/inc/it203i_2009.pdf

I don't commute to NY but I read the document you gave thanks! It does say I am taxable if service are performed for that area. When I first move to Texas the system took and stop withholding NY taxes but HR came back and changed it saying I had to pay NY Taxes. The one thing is I do not have to pay NYC tax.

What business are you in that makes your HR think that you perform services in NY Sate while sitting in TX? The wording in the IT-203 instructions say: "New York source income also includes: ... services peformed in New York State." This means services performed while you are physically in state. For example, if you were a lawyer and traveled to NY to meet with a client, and billed the customer for hours of the meeting, then you have performed a service in NY. But if that same lawyer calls his client from TX, and bills for the time, he is not providing that service in NY.

I work for a call center where the calls come into a switch from NY and I have those calls sent to me in TX. I used to work in NY for the same company. I just moved to Texas but continued working my same position.

NY state has NO LEGAL STANDING to tax you on your income. Your physical location where you work (Texas) and where you live (Texas) determines which state can tax your salary. This basic tenant of state tax law was decided decades ago in federal court.

The fact that the calls that are routed into the call center are routed from NY is irrelevent in determining which state taxes your income.

When you file your NY state tax return, file IT-203 and claim ZERO NY-sourced income. Attach a letter signed by your supervisor on company letterhead that says that you are physically located in Texas to both work and live. Given these fact, NY state SHOULD honor your request for a total refund.

Further, you should immediately contact your payroll department and tell them what I just posted. Any competent tax professional in NY will tell them the same thing, and they should stop withholding NY state taxes and refund whatever NY state taxes have been withheld to date for 2010.