Document Type

Amicus Brief

Publication Date

12-1-2025

Case Name

Zelinsky v. Commissioner of Taxation and Finance, CV-25-1156

Abstract

To combat COVID, New York in 2020 forbade an out-of-state employee like the petitioner to commute into his New York office, forcing him to instead work at his home in Connecticut. New York now takes the remarkable position that it can tax the income Governor Cuomo forced this out-of-state employee to earn at his home exclusively outside New York. That position is as wrong as it sounds.

Both as a matter of New York law and of federal constitutional law under the Due Process and dormant Commerce Clauses, New York may not tax the income the petitioner earned exclusively at his Connecticut home during the COVID period when Governor Cuomo made it illegal for out-of-state commuters like the petitioner to work in New York.

The Department’s denial of an income tax refund for the COVID-19 period is wrong for three reasons of state law.

First, New York’s own regulations and case law do not tax a nonresident employee’s salary as New York source income if the nonresident works “wholly without” New York. 20 N.Y.C.R.R. § 132.4(b). See also Hayes v State Tax Commission, 61 AD2d 62 [3d Dept. 1978] (“services rendered wholly without the State are not taxable in New York.”).

Second, New York’s “convenience of the employer” regulation does not tax a nonresident employee’s salary if the nonresident employee works out-of-state for his employer’s necessity rather than for the employee’s personal convenience. 20

N.Y.C.R.R. § 132.18. The petitioner worked at home starting on March 15, 2020 for Cardozo’s necessity, a necessity created by the Governor’s COVID-19 shutdown order.

Third, the case law under the employer convenience rule only taxes a nonresident employee’s salary if the nonresident had or could have had a New York office available to him. Fass v State Tax Commission, 68 AD2d 977 [3d Dept. 1979]. Due to the COVID shutdown for the last nine and one-half months of 2020, the petitioner had no New York office or classroom available to him and could not have had such a New York office or classroom.

Even if New York law taxes the petitioner’s Cardozo salary during the COVID-19 period, the Due Process and dormant Commerce Clauses forbid New York’s taxation of this salary during COVID. Indeed, it is difficult to envision a more unconstitutional tax than an income tax levied by a state whose Governor forbade the nonresident taxpayer from using his New York office and classroom for the period in question.

In deciding otherwise, the Tribunal relied on Zelinsky v. Tax Appeals Tribunal, 1 NY3d 85 [2003], cert. denied, 541 U.S. 1009, 124 S. Ct. 2068 (2004), a

decision involving a challenge by the same petitioners to their nonresident state income taxes for 1994 and 1995. But Zelinsky underscores why the COVID-19 tax is unconstitutional. Zelinsky emphasized the petitioner’s “voluntary choice” in

1994 and 1995 to work at home. But starting on March 15, 2020, Governor Cuomo gave the petitioner no choice but to work at his home.

The petitioners also deserve to win for the pre-COVID period. They acknowledge that Zelinsky upheld for 1994 and 1995 a similar nonresident income tax. But Zelinsky does not control this case. The facts of this case are distinguishable from the facts of Zelinsky. Moreover, Zelinsky is no longer good law as it has been eroded by the subsequent decisions of the U.S. Supreme Court in Wynne and MeadWestvaco, by criticism of Zelinsky from judges of the Court of Appeals, by criticism from commentators, and by subsequent events.

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