161.3 New York State elections not controlled by Federal elections.

(a) Examples of New York State elections upon which Federal elections are not binding are those relating to:

(1) the claiming of the New York standard deduction or the New York itemized deduction by a taxpayer who has claimed itemized deductions on his Federal income tax return;

(2) the filing of a joint New York State personal income tax return or separate New York State personal income tax returns on one form by a husband and wife who file a joint Federal income tax return;

(3) the allocation or division of the New York standard deduction between a husband and wife who determine their New York taxable incomes separately, either on separate forms or on one form; and

(4) the allocation or division of the New York itemized deduction between a husband and wife who determine their Federal taxable income jointly and determine their New York taxable incomes separately on one form. Where a husband and wife claim itemized deductions and determine their Federal taxable incomes separately, no such allocation or division of the New York itemized deduction is permitted. (See section 115.10 of this Title.)

(b) A taxpayer's election as to any of the matters listed in subdivision (a) of this section may be changed without prior application to the Tax Commission, subject to the conditions stated in section 161.4 of this Part.

(c) Other elections for New York State personal income tax purposes which are independent of any election for Federal income tax purposes.

(1) The election to claim an overpayment of New York State income tax computed on a New York State personal income tax return as a credit against the estimated income tax for the succeeding year is a New York State election independent of any election for Federal income tax purposes. If a taxpayer elects to have an overpayment of New York State income tax for a taxable year so credited, such taxpayer cannot thereafter change such election with respect to the overpayment for that taxable year.

(2) The election by a nonresident person to file or not to file on a group New York State nonresident personal income tax return is a New York State election independent of any election for Federal income tax purposes. If a nonresident person elects to file on a group New York State nonresident personal income tax return, such nonresident person may not file an amended New York State nonresident personal income tax return on an individual basis after the 15th day of the fourth month following the close of the taxable year. Similarly, if a nonresident person elects to file on an individual basis, such nonresident person may not file an amended New York State nonresident personal income tax return on a group basis after the 15th day of the fourth month following the close of the taxable year. However, if a nonresident person's status changes in such a way as to prevent such nonresident person from qualifying to file on a group return, such nonresident person shall be permitted or required, as the case may be, to file an amended return. Such amended return must be filed within the time prescribed by section 687 of the Tax Law.

(3) The election by a nonresident member of a professional athletic team to file or not to file on a group New York State nonresident personal income tax return is a New York State election independent of any election for Federal income tax purposes. If a nonresident member of a professional athletic team elects to file on a group New York State nonresident personal income tax return, such member may not file an amended New York State nonresident personal income tax return on an individual basis after the 15th day of the fourth month following the close of the taxable year. Similarly, if a nonresident member of a professional athletic team elects to file on an individual basis, such member may not file an amended New York State nonresident personal income tax return on a group basis after the 15th day of the fourth month following the close of the taxable year. However, if a nonresident member's status changes in such a way as to prevent such member from being able to qualify as an electing nonresident member of a professional athletic team, such individual shall be permitted or required, as the case may be, to file an amended return. Such amended return must be filed within the time prescribed by section 687 of the Tax Law.

(d) Any election for New York State personal income tax purposes which is not controlled by the taxpayer's election for Federal income tax purposes, other than the elections covered by subdivisions (a) and (c) of this section, may be changed after the due date of the original New York State personal income tax return only with the prior approval of the Tax Commission, and only upon such terms and conditions as the Tax Commission may specify in each individual case.