May 9, 2008
Zelinsky: New York's "Convenience of the Employer" Rule Is Unconstitutional
Edward A. Zelinsky (Cardozo) has posted New York's "Convenience of the Employer" Rule Is Unconstitutional, 48 State Tax Notes ___ (2008), on SSRN. Here is the abstract:
This Article argues that New York's convenience of the employer doctrine is unconstitutional as a matter of law and ill-advised as a matter of tax policy. For Commerce Clauses purposes, interstate travel is a form of interstate commerce. In using the concept of employer convenience to tax a nonresident employee for days the employee works at his out-of-state home, New York levies unapportioned income taxation in violation of the dormant Commerce Clause. In Due Process terms, the extraterritorial taxation caused by the employer convenience doctrine unconstitutionally projects New York's taxing authority beyond New York's borders to tax income earned in the employee's state of residence. Moreover, New York's employer convenience rule is misguided as a matter of tax policy as the rule drives jobs, firms, and taxpayers from New York.
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