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New York's 'Convenience of the Employer' Rule is Unconstitutional

50 Pages Posted: 29 Apr 2008 Last revised: 28 Sep 2008

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: April 25, 2008

Abstract

This Article argues that New York's convenience of the employer doctrine is unconstitutional as a matter of law and ill-advised as a matter of tax policy.

For Commerce Clauses purposes, interstate travel is a form of interstate commerce. In using the concept of employer convenience to tax a nonresident employee for days the employee works at his out-of-state home, New York levies unapportioned income taxation in violation of the dormant Commerce Clause. In Due Process terms, the extraterritorial taxation caused by the employer convenience doctrine unconstitutionally projects New York's taxing authority beyond New York's borders to tax income earned in the employee's state of residence.

Moreover, New York's employer convenience rule is misguided as a matter of tax policy as the rule drives jobs, firms, and taxpayers from New York.

Keywords: income tax, dormant commerce clause, extraterritoriality, tax policy, telecommuting, apportionment

Suggested Citation

Zelinsky, Edward A., New York's 'Convenience of the Employer' Rule is Unconstitutional (April 25, 2008). State Tax Notes, Vol. 48, No. 7, May 19, 2008; Cardozo Legal Studies Research Paper No. 233. Available at SSRN: https://ssrn.com/abstract=1125283

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0277 (Phone)

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