Husband and wife with different resident status.

(1) If either the husband or wife is a resident and the other is a nonresident of New York State, they must file separate New York State personal income tax returns on separate form IT-201 or IT-203, regardless of whether they file a joint or separate Federal income tax return, unless both elect to file a joint New York State resident personal income tax return in which their joint New York taxable income is determined as if both were residents. They may elect to do this only if they meet the following requirements:

(i) they filed a joint Federal income tax return for the same taxable year; and

(ii) each spouse maintained his or her status as a resident or nonresident during the entire taxable year. If they file such a joint New York State resident personal income tax return, their income tax liabilities will be joint and several, except as provided in subdivision (e) of this section and in subsection (e) of section 685 of the Tax Law. If they file separate New York State personal income tax returns, their income tax liabilities will be separate.

(2) If, for Federal income tax purposes, a joint Federal income tax return cannot be made because either the husband or wife, at any time during the taxable year, was a nonresident alien, it follows that in accordance with subparagraph (1)(i) of this subdivision, a joint New York State personal income tax return cannot be filed in such a case.