Law360, NY Telework Tax Applies To Conn. Tax Professor, ALJ Rules:

A tax professor who lives in Connecticut but teaches in New York falls under the jurisdiction of New York's policy of taxing nonresidents and is not entitled to a refund for days worked at home, including during the COVID-19 pandemic, according to a determination obtained Tuesday by Law360.

Administrative Law Judge Jessica DiFiore noted in her determination that professor Edward A. Zelinsky challenged the policy, known as the convenience of the employer rule, two decades ago. At that time, New York's highest court ruled against him in Zelinsky v. Tax Appeals Tribunal. This time, Zelinsky is seeking refunds for days worked in Connecticut in 2019 and in 2020, including days where his Manhattan law school, Yeshiva University's Benjamin N. Cardozo School of Law, was closed due to COVID.

Judge DiFiore said in the determination … that for 2019, the facts in Zelinsky's current suit make the outcome controlled by the result of the previous case.

For the tax year 2020, in which Zelinsky had neither a classroom nor an office to go to in Manhattan amid the spread of COVID and related closures, the issue is one of first impression, Judge DiFiore wrote. However, she wrote, the outcome would be the same: The convenience of the employer rule applied. The judge wrote that Zelinsky was not required by Cardozo to work at home. …

Speaking to Law360 on Tuesday, Zelinsky said he would limit his comments because the case will be ongoing. He said he would appeal to the state Tax Appeals Tribunal. He said his exceptions to Judge DiFiore's determination are due by Dec. 30. Zelinsky said he continues to fight the convenience of the employer rule because "the legal position that I am advocating is correct." …

Zelinsky is representing himself and his wife, Doris, who had no New York-sourced income but signed returns with him.

See Edward A. Zelinsky (Cardozo), Coronavirus, Telecommuting, and the 'Employer Convenience' Rule, 95 State Tax Notes 1101 (Mar. 30, 2020).