Reply Brief of Edward A. and Doris Zelinsky in the Third Department

As COVID raged, Governor Andrew Cuomo closed New York to in person activity, mandating “telecommuting or work from home” for everyone, New York residents and nonresidents alike. The Governor’s Pandemic shutdown order legally prohibited the petitioner from setting foot at Cardozo, requiring the petitioner to instead work remotely at his home in Connecticut, teaching his classes on Zoom. <br><br>Contrary to the assertion of the State’s brief, the petitioner earned his Cardozo salary “wholly without” New York at his Connecticut home teaching on Zoom because of Governor Cuomo’s public health shutdown order. At its core, the State’s brief is an exercise in Pandemic denial, ignoring the consequences of gubernatorially-required remote work and of Zoom teaching.<br><br>The State’s brief argues that the petitioner’s work at his Connecticut home during the Pandemic was not for Cardozo’s necessity. This argument denies the common sense realities of COVID and of the Governor’s public health shutdown orders which forced Cardozo to switch to Zoom classes taught from faculty homes. Cardozo needed the petitioner to work from his home in Connecticut because Governor Cuomo barred the petitioner from entering Cardozo’s premises to teach in person.<br><br>Also convoluted is the State’s suggestion that, during COVID, there was no “obstacle” to Cardozo providing an in-state “facility” for the petitioner. But there was such an obstacle: Governor Andrew Cuomo. During the Pandemic, he ordered Cardozo to “reduce the in-person workforce <i>at any location by 100%.</i>” The petitioner was not allowed to live at the Cardozo law school anymore than he could teach there.<br><br>Contrary to the thrust of the State’s brief, the facts of the current case distinguish the Court of Appeals’ 2003 decision in <i>Zelinsky</i>, particularly for the COVID period (March 15, 2020 through December 31, 2020) but also for the pre-Pandemic period. <i>Zelinsky</i> fails to justify the State’s unapportioned, extraterritorial and externally inconsistent taxation of the petitioner’s income earned at his Connecticut home in 2019 and 2020.<br><br>To disparage venerable Due Process and Commerce Clause rules, the State’s brief argues that “physical presence” has become a meaningless concept for state income tax purposes. This argument produces bizarre results. Under the State’s theory that today everybody is everywhere for state income tax purposes, when this Court live streams oral argument throughout the nation, the members of this Court owe nonresident income taxes everywhere the oral argument is seen and heard over&nbsp;the internet. Ditto for every member of the Knicks or the Yankees when they play a televised home game. Under the state’s theory that physical presence does not matter, these athletes owe state income taxes everywhere the home game is seen. The Constitution’s limits on states’ income taxes preclude this kind of duplicative state income taxation.<br><br>The U.S. Supreme Court has repeatedly made clear under the Due Process and dormant Commerce Clauses that the petitioner’s physical presence in Connecticut is what matters, not where he is Zooming into.<br>