Matter of Edward A. Zelinsky et al. v. Commissioner of Taxation and Finance of the State of New York et al., CV-25-1156 (N.Y. App. Div. 3d Dept. July 2, 2026)

The matter of Edward A. Zelinsky et al. v. Commissioner of Taxation and Finance of the State of New York et al. involves a challenge to the application of New York’s "convenience of the employer" rule during the COVID-19 pandemic. The petitioner, Edward A. Zelinsky, a law professor and attorney employed by Cardozo Law School, is a resident of Connecticut. During the 2019 and 2020 tax years, Zelinsky performed his professional duties both on the New York campus and remotely from his Connecticut home.

In 2020, Zelinsky worked on campus for 24 days between January and March. However, on March 20, 2020, Governor Andrew Cuomo issued Executive Order 202.8, which directed nonessential businesses to "reduce in-person workforce levels by 100% and to implement telecommuting and remote work 'to the maximum extent possible'" (Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). Consequently, Zelinsky performed the remainder of his duties for the 2020 tax year from his Connecticut residence.

Taxpayer Request for Relief

The petitioners filed New York nonresident income tax returns for 2019 and 2020, allocating a portion of Zelinsky's salary to Connecticut and seeking refunds of withholdings for income earned while working remotely. Following an audit and subsequent denials by the Division of Taxation and the Tax Appeals Tribunal, the petitioners sought judicial review.

The petitioners argued that the work-from-home mandates during the pandemic fundamentally altered the analysis established in the taxpayer's previous litigation, Matter of Zelinsky v Tax Appeals Trib. of State of N.Y., 1 NY3d 85 (2003) (Zelinsky I). Specifically, they contended that the Tribunal irrationally determined that Zelinsky did not work from home "out of necessity of his employer" and further argued that the taxation of this income violated the dormant Commerce Clause and the Due Process Clause of the US Constitution.

Legal Framework and the Convenience of the Employer Rule

The court's analysis began with the statutory basis for nonresident taxation under Tax Law § 601(e)(1), which imposes a tax on New York source income. Under Tax Law § 631(a)(1) and (b)(1)(B), New York source income includes a "profession or occupation carried on" in New York. For nonresidents working both within and without the state, the allocation of income is governed by 20 NYCRR 132.18(a).

This regulation establishes the "convenience of the employer" rule, which dictates that "out-of-state workdays are treated as in-state workdays unless the services were undertaken due to the employer's 'absolute necessity'" (Matter of Kitman v State Tax Commn., 92 AD2d 1018, 1020 [3d Dept 1983]). The court noted that the rule is designed "to prevent nonresident employees from receiving tax advantages that are unavailable to similarly situated New York residents merely by choosing to perform work remotely outside the state" (Matter of Speno v Gallman, 35 NY2d 256, 259 [1974]).

Application of Law to Pandemic Remote Work

The central issue was whether the pandemic-era remote work mandates constituted "employer necessity." The court acknowledged that the pandemic disrupted traditional work environments, but maintained that the distinction between work performed for the employer's benefit at a specific site and work that could be performed anywhere remains a "rational, practical test."

The court found that while Executive Order 202.8 required the law school to implement remote instruction, "it did not require Zelinsky to teach from Connecticut." The court observed that "the law school was indifferent to the state from which faculty delivered videoconference lectures or conducted meetings." Consequently, the court ruled that "a temporary but grave public health emergency, not 'employer necessity' as previously defined, explains why Zelinsky worked remotely." The court concluded that the Tribunal rationally determined the employer did not require the work to be performed in Connecticut, and thus the income remained taxable as New York source income.

Constitutional Analysis

The petitioners raised two primary constitutional challenges: the dormant Commerce Clause and the Due Process Clause.

Regarding the dormant Commerce Clause, the court reiterated that "a nonresident employee's physical presence outside New York, standing alone, does not compel allocation of income away from New York" (Matter of Huckaby v New York State Div. of Tax Appeals, Tax Appeals Trib., 4 NY3d 427, 435 [2005]). The court held that "nonresidents do not implicate themselves or their employers in interstate commerce merely by working from home" (Matter of Huckaby, 4 NY3d at 435). Even if the clause were triggered, the court found the tax was "fairly apportioned" because the salary was derived from New York employment, and "the tax imposed need not bear an exact relation to the services actually provided to the individual taxpayer" (Matter of Zelinsky, 1 NY3d at 95).

On the Due Process issue, the court held that the required "minimal connection between the taxpayer and the state" (Matter of Huckaby, 4 NY3d at 437) was maintained. The court noted that Zelinsky continued to derive "tangible and intangible benefits from his New York employment," including a "prestigious professional affiliation, institutional support for his scholarship and access to the broader New York legal and academic community."

Court Conclusions

The court rejected the petitioners' arguments that subsequent US Supreme Court decisions, such as Comptroller of Treasury of Md. v Wynne (575 US 542 [2015]) and MeadWestvaco Corp. v Illinois Dept. of Revenue (553 US 16 [2008]), eroded the current standard. The court distinguished those cases as involving "apportionment of income generated through interstate commercial activity," whereas Zelinsky's situation involved a nonresident employee of a New York employer.

Ultimately, the court found that "the state, not the employer, prevented Zelinsky and all other employees from working at the New York office supplied by Cardozo Law School." Because the employer derived the same benefit regardless of the faculty member's physical location, the "convenience of the employer" rule remained applicable. The court confirmed the Tribunal's determination and dismissed the petition.

Prepared with assistance from LM Studio google/gemma-4-31b-qat.