Document Type

Amicus Brief

Publication Date



Three reasons of state law independently compel a refund of the New York income tax Professor Edward A. Zelinsky paid on the Cardozo Law School salary Professor Zelinsky earned during the COVID period from March 15, 2020 through December 31, 2020. That salary was not New York source income because Professor Zelinsky earned that COVID period salary at his home in Connecticut “wholly without” New York’s borders. 20 N.Y.C.R.R. § 132.4(b). In addition, New York’s “convenience of the employer” rule does not apply to that COVID period salary because Professor Zelinsky’s remote work at home was for Cardozo’s necessity rather than for anyone’s convenience. Governor Cuomo’s shutdown order only permitted Cardozo to conduct classes remotely. Cardozo was out of business if Professor Zelinsky did not teach his Pandemic classes remotely from his home. Employer necessity does not get stronger than this. 20 N.Y.C.R.R. § 132.18.

New York’s “convenience of the employer” rule also does not apply to Professor Zelinsky’s Cardozo salary for the COVID period because Governor Cuomo’s shutdown order denied Professor Zelinsky the use of his Cardozo office and classroom. The employer convenience rule only applies to a nonresident’s income if the nonresident has or could have had a New York office or other facility in which to work. Fass v. State Tax Commission, 68 A.D. 2d 977 (3d Dept. 1979). But Governor Cuomo deprived Professor Zelinsky of the use of any New York office or classroom for the duration of the Pandemic. Governor Andrew Cuomo, Executive Order No. 202.6, 9 N.Y.C.R.R. § 8.202.6.

As a matter of federal law, the Due Process and dormant Commerce Clauses of the U.S. Constitution prohibit New York from taxing Professor Zelinsky’s Cardozo salary earned at his Connecticut home in 2019 and 2020. Such unapportioned, extraterritorial taxation taxes Professor Zelinsky as if he were a New York resident – which he is not.

Responding to Professor Zelinsky’s constitutional claims for 2019 and 2020, the Division’s Brief relies heavily on Zelinsky v. Tax Appeals Tribunal, 1 N.Y. 3d 85 (2003), cert. denied, 541 U.S. 1009 (2004). But this case is factually distinguishable from Zelinsky. Moreover, Zelinsky has been undermined by subsequent developments, including criticism of Zelinsky by scholars and by judges of the Court of Appeals. Those criticisms make clear that New York taxes unconstitutionally when it levies its extraterritorial, unapportioned “convenience of the employer” income tax on the salary Professor Zelinsky earned remotely at his home in Connecticut in 2019 and 2020. Zelinsky has also been eroded by the subsequent decisions of the U.S. Supreme Court in MeadWestvaco Corp. v. Ill. Dep't of Revenue, 553 U.S. 16 (2008), and in Comptroller of the Treasury v. Wynne, 575 U.S. 542 (2015).

The Division’s Brief asserts that, through a “virtual presence” test, South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018), supports New York’s extraterritorial and unapportioned income tax of Professor Zelinsky’s Cardozo salary earned at his Connecticut home in 2019 and 2020. But Wayfair is about sales tax collection responsibilities. Wayfair neither explicitly or nor implicitly unsettles the century of Due Process and dormant Commerce Clause case law which forbids states from imposing extraterritorial, unapportioned state income taxes on nonresidents like Professor Zelinsky. This unconstitutional taxation is precisely what New York does to Professor Zelinsky for 2019 and 2020 by taxing Cardozo salary Professor Zelinsky earned outside New York’s borders at his home in Connecticut.

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