Brief of Edward A. and Doris Zelinsky in DTA # 830517 and DTA # 830681
Brief of the Petitioners-Taxpayers Edward A. And Doris Zelinsky
59 Pages Posted: 14 Jun 2023
Date Written: June 14, 2023
As a matter of state law, New York’s own regulations and case law do not permit taxation of Professor Zelinsky’s income earned at home in Connecticut for the COVID-19 period starting on March 15, 2020. Even if New York law permitted the taxation of Professor Zelinsky’s Cardozo salary during this COVID-19 period, as a matter of federal constitutional law, the Due Process and dormant Commerce Clauses do not permit New York’s taxation of this salary earned in Connecticut. In addition, Zelinsky v. Tax Appeals Tribunal, 1 N.Y. 3d 85 (2003), cert. denied, 541 U.S. 1009 (2004), does not apply to the income Professor Zelinsky earned at home starting on March 15, 2020. Zelinsky is not good law for the COVID-19 period.
As to 2019 and the first two and one-half months of 2020, two of the claims applicable to the COVID-19 period also apply to this earlier pre-COVID period. First, New York’s unapportioned, extraterritorial taxation of Professor Zelinsky’s Connecticut-source income violates the Due Process and Commerce Clauses as applied to the facts of this case. Second, just as Zelinsky is not good law for the COVID period, it is not good law for the earlier, pre-COVID period.
Keywords: state income taxation, remote work, telecommuting, Due Process, dormant Commerce Clause, employer necessity, convenience of the employer, apportionment, nonresident taxation, extraterritoriality, Governor Cuomo’s Executive Order No. 202.6, 20 N.Y.C.R.R. § 132.4(b), 20 N.Y.C.R.R. § 132.18, COVID-19,
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