The Petition to the Third Department of Edward A. and Doris Zelinsky

The Petitioner, Edward A. Zelinsky, performed none of his duties for Cardozo Law School in New York during the Covid period of 2020 and was forbidden by the Governor Cuomo’s shutdown order from entering New York for in-person activity during the Covid period. Nevertheless, the Tax Appeals Tribunal’s Decision sustains New York’s nonresident income taxation of 100% of the Petitioner’s Cardozo salary for this period when the Petitioner worked wholly without New York and was barred by the Governor’s order from teaching in-person in New York. <br><br>As a matter of state law, taxing 100% of the Petitioner’s Cardozo salary for the Covid period of 2020 flouts the controlling regulations, 20 N.Y.C.R.R. §§ 132.4(b) and 132.18. As a matter of state law, taxing 100% of the Petitioner’s salary for the Covid period of 2020 flouts the controlling decisions of this Court, <i>Hayes v. State Tax Commission</i>, 61 A.D.2d 62, 401 N.Y.S. 2d 876 (3d Dept. 1978), and <i>Fass v. State Tax Commission</i>, 68 A.D. 2d 977, 414 N.Y.S. 2d 780 (3d Dept. 1979).<br><br>As a matter of federal constitutional law applied to the facts of this case, taxing 100% of the Petitioner’s Cardozo salary for the Covid period of 2020 violates the Commerce Clause of the U.S. Constitution, Art. I, § 8, cl. 3, and the Due Process Clause, U.S. Constitution, Amend. XIV, § 1. Such taxation unconstitutionally fails to apportion, is externally inconsistent and is extraterritorial, taxing income the Petitioner earned exclusively in another state, i.e., Connecticut, when he was barred from teaching in New York.<br><br>As a matter of federal constitutional law applied to the facts of this case, taxing the Cardozo salary the Petitioner earned at his home in Connecticut during the pre-Covid period violated the Commerce Clause, the Due Process Clause and <i>Central Greyhound</i> and its progeny. Such taxation unconstitutionally fails to apportion, is externally inconsistent, and taxes extraterritorially by taxing income the Petitioner earned on the days he worked in another state, i.e., Connecticut.