Document Type

Amicus Brief

Publication Date

8-4-2023

Abstract

The Division’s Brief confirms that the Tribunal should rule for the taxpayers, Edward A. and Doris Zelinsky Perhaps most egregiously, the Division disparages binding factual stipulations to which the parties agreed at the outset of this litigation. These stipulations confirm that, from March 15, 2020 through December 31, 2020 (“the COVID period”), Professor Zelinsky had no New York office or classroom available to him. Consequently, Professor Zelinsky taught his classes and met with students exclusively on zoom from his Connecticut home. He did not step foot in New York for this nine and one-half month period.

The stipulated facts lead to straightforward conclusions: Professor Zelinsky’s exclusively online services for Cardozo for the last nine and one-half months of 2020 were significantly different from his traditional teaching in 2019 and the first two and one-half months of 2020 (“the pre-COVID period”). As a matter of state law, New York law does not tax Professor Zelinsky’s Cardozo salary from March 15, 2020 through December 31, 2020 since Professor Zelinsky did not have a New York classroom or office for that COVID-19 period and could not have had a New York classroom or office for that period.

The Division also flouts New York’s constitutional obligation to apportion Professor Zelinsky’s Cardozo salary. Instead, of apportioning, New York taxes all of such salary despite Professor Zelinsky’s extensive activity outside New York’s borders. For the pre-COVID period, New York taxes 100% of Professor Zelinsky’s Cardozo salary even though he spent only 40% of his time in New York. Matters are even worse for the COVID-19 period. For these nine and one-half months of 2020, New York taxes 100% of Professor Zelinsky’s Cardozo salary even though he spent 0% of his time in New York.

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