Brief of Edward A. and Doris Zelinsky in the New York State Tax Appeals Tribunal

In March of 2020, Governor Andrew Cuomo shut down New York State to combat COVID-19, the greatest public health crisis of modern times. Edward A. Zelinsky is a Connecticut resident who Governor Cuomo required to work at home because of COVID-19. As a result of these restrictions, Professor Zelinsky had no New York office or classroom from March 15, 2020 through December 31, 2020 and did not (and could not) commute to work from his Connecticut home to New York to teach at the Cardozo School of Law.<br><br>As a matter of state law, New York’s own regulations and case law do not tax the Cardozo salary Professor Zelinsky earned at home in Connecticut starting on March 15, 2020. Even if New York law taxes Professor Zelinsky’s Cardozo salary during the COVID-19 period starting on March 15, 2020, as a matter of federal constitutional law, the Due Process and dormant Commerce Clauses forbid New York’s taxation of this salary. Indeed, it is difficult to envision a more unconstitutional tax than an income tax levied by a state whose Governor affirmatively forbade the nonresident taxpayer from using his New York office and classroom for the period in question.<br><br>Moreover, 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. The facts of Zelinsky are distinguishable, indeed, bear no relation to the facts of the COVID-19 crisis of 2020.. For a variety of reasons, Zelinsky is not good law.<br><br>Turning 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, as a constitutional matter, New York can only tax a nonresident like Professor Zelinsky by reasonably apportioning his income between the states in which he works and by avoiding extraterritorial taxation of the income the nonresident earns out-of-state. Second, just as Zelinsky does not apply to the COVID-19 period starting on March 15, 2020, Zelinsky does not apply to the pre-COVID period of 2019 and the first two and one-half months of 2020. Zelinsky 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, namely, the post-COVID emergence of remote work as a central and widespread feature of American life.