Huckaby v. New York State Division of Tax Appeals

829 N.E.2d 276, 4 N.Y.3d 427, 796 N.Y.S.2d 312, 2005 N.Y. LEXIS 497

• Court: New York Court of Appeals
• Decided: March 29, 2005
• Status: Published

Opinions

OPINION OF THE COURT

Read, J.

This appeal revisits New York’s “convenience of the employer” test, which provides that when a nonresident is employed by a New York employer, income derived from work in another state is taxable by New York unless performed out of state for the necessity of the employer. Here, the taxpayer, a Tennessee resident who works for a New York employer, contends that the convenience test violates the statute that it implements as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. We disagree, and uphold the challenged tax as applied to this taxpayer.

I.

Until 1991, petitioner Thomas L. Huckaby, a Tennessee resident, worked as a computer programmer for Multi-User Computer Solutions (MCS), a Tennessee employer engaged in the business of developing and selling computer software. In 1991, MCS underwent a reorganization, and petitioner’s employment was terminated as a result. He was subsequently hired by the National Organization of Industrial Trade Unions (NOITU), an organization based in Jamaica, New York. NOITU had been an MCS client, and Huckaby had worked on NOITU matters while he was employed by MCS.

NOITU is an umbrella organization of industrial trade unions, which provides administrative services for its members. Petitioner’s duties included supporting the software programs that MCS had developed for NOITU; assisting the computer department’s manager in selecting new information technology; and, in general, meeting NOITU’s programming needs.

NOITU and petitioner agreed that he would work primarily from his home in Tennessee, and would travel to the New York office only as needed to “gather guidelines for revision of existing or creation of new computer programs, and to instruct NOI-TU’s New York personnel in their use.” NOITU set up a long-distance data line to connect its Jamaica office to petitioner’s Tennessee home office, where he also maintained a dedicated voice telephone line for business purposes and two computer terminals, which were eventually replaced with a personal computer and a printer. NOITU reimbursed petitioner monthly for office expenses, including telephone bills and supplies.

Petitioner concedes that he performed the bulk of his work for NOITU in Tennessee rather than in New York solely for personal reasons; NOITU did not require him to perform any work in Tennessee and would not have objected if he had worked out of its New York office. In 1994, petitioner split his time between NOITU’s New York office, where he worked 59 days, and his Tennessee home office, where he worked 187 days. In 1995, he worked in NOITU’s New York office for 62 days and in his Tennessee home office for 180 days. Thus, over this two-year period, petitioner spent roughly 25% of his workdáys in New York and 75% of his workdays in Tennessee. He did not work in 1994 or 1995 for any person or any entity other than NOITU as either an employee or an independent contractor.

Petitioner timely filed 1994 and 1995 nonresident income tax returns with New York. He allocated his income between New York and Tennessee based on the number of days he worked in each state relative to the total number of days he worked in each tax year.

Upon subsequently auditing petitioner’s 1994 and 1995 returns, the New York State Department of Taxation and Finance allocated 100% of his income to New York State and New York City and issued notices of deficiency. The Department explained that £‘[a]ny allowance claimed for days worked outside New York State must be based upon the performance of services which, because of the necessity of the employer, obligate the employee to out-of-state duties in the service of his employer. Such duties are those which, by their very nature, cannot be performed at the employer’s place of business.”

Petitioner paid the deficiencies under protest. After a conciliation conferee sustained the assessments, he took an administrative appeal seeking a refund. An administrative law judge sustained the notices of deficiency, and the Tax Appeals Tribunal affirmed. Petitioner then commenced this CPLR article 78 proceeding in the Appellate Division pursuant to Tax Law § 2016. The Appellate Division confirmed the administrative determination and dismissed the petition (6 AD3d 988 [3d Dept 2004]).

II.

Tax Law § 601 (e) (1) imposes a tax on “income which is derived from sources in this state of every nonresident” (emphasis added). Section 631 (a) (1) of the Tax Law defines the “New York source income of a nonresident individual” as including “[t]he net amount of items of income, gain, loss and deduction entering into his federal adjusted gross income, as defined in the laws of the United States for the taxable year, derived from or connected with New York sources” (emphasis added). Tax Law § 631 (b) (1) (B), in turn, provides that “[i]terns of income, gain, loss and deduction derived from or connected with New York sources shall be those items attributable to: . . . (B) a business, trade, profession or occupation carried on in this state” (emphasis added).

The “carried on” language first appeared in the Tax Law in 1919, the year New York adopted an income tax (see L 1919, ch 627). The 1919 law imposed a tax on “the entire net income . . . from all property owned and from every business, trade, profession or occupation carried on in this state by natural persons not residents of the state” (former Tax Law § 351). The 1919 law also provided that “[i]n the case of taxpayers other than residents, gross income includes only the gross income from sources within the state” (former Tax Law § 359 [3]). Other sections provided for deductions (former Tax Law § 360), exemptions (former Tax Law § 362) and credits (former Tax Law § 363) for nonresidents. The United States Supreme Court in Travis v Yale & Towne Mfg. Co. (252 US 60 [1920]) vindicated New York’s nonresident income tax from charges that it violated the Commerce, Due Process and Equal Protection Clauses.¹

Petitioner contends that sections 601 and 631 of the Tax Law preclude New York from taxing income attributable to work that he carried out for his New York employer in his Tennessee home office. Nothing in the Tax Law’s legislative history, however, indicates whether the Legislature intended business “carried on in this state” and “sources in this state” to refer to the location of the employee or of the employer. Petitioner’s assumption that these phrases signify the employee’s place of performance traces to a 1919 opinion of the Attorney General construing the phrase “sources [of income] within the State” (1919 Report Atty Gen 301). Attorney General Charles D. Newton opined that “[i]t seems to me that the work done, rather than the person paying for it, should be regarded as the ‘source’ of the income” (id..). He went on to conclude that “[w]here services are rendered partially within and partially without the State, the income therefrom should be divided pro rata into income from sources within and without the State” (id.).

In 1960, the Tax Law was recodified and reconfigured so as to allow taxpayers to use federal figures for their state returns (Message of Governor, 1960 McKinney’s Session Laws of NY, at 2026). Section 601 and what later became section 631 were added and mirror, to a large extent, the language found in the predecessor statutes. Importantly, however, new language was folded into the latter as subdivision (c). This subdivision, referring to New York source income of nonresidents, states that

“[i]f a business, trade, profession or occupation is carried on partly within and partly without this state, as determined under regulations of the tax commission, the items of income, gain, loss and deduction derived from or connected with New York sources shall be determined by apportionment and allocation under such regulations.” (Tax Law § 631 [c].)

The Legislature thus recognized the complexities of administering an income tax for a nonresident who works both within and without the state, and left it up to the State Tax Commission, whose functions and duties in this regard were subsequently transferred to the Commissioner of Taxation and Finance (see L 1986, ch 282), to develop a rule for apportionment and allocation.

This rule, the convenience of the employer test, provides that

“[i]f a nonresident employee . . . performs services for his employer both within and without New York State, his income derived from New York State sources includes that proportion of his total compensation for services rendered as an employee which the total number of working days employed within New York State bears to the total number of working days employed both within and without New York State. . . . However, any allowance claimed for days worked outside New York State must be based upon the performance of services which of necessity, as distinguished from convenience, obligate the employee to out-of-state duties in the service of his employer” (20 NYCRR 132.18 [a]).

When the convenience test first came into use is obscure; however, it was embodied in regulation by 1960, the tax year at issue va. Matter of Speno v Gallman (35 NY2d 256 [1974]).²

In Speno, we addressed the language “sources within the state” (former Tax Law § 632) in relation to the taxation of the income of the nonresident president of a company with offices in New York and abroad. We endorsed a “refinement” of the Attorney General’s 1919 “place of performance” opinion. (Speno at 259.) That is, we accepted the Department’s interpretation of the Tax Law in the convenience test, and held that “sources within the state” does not simply mean “place of performance.” Rather, it calls for a more complicated analysis that takes into consideration why work is performed out of state. Our recent decision in Matter of Zelinsky v Tax Appeals Trib. of State of N.Y. (1 NY3d 85 [2003], cert denied 541 US 1009 [2004]), which rejected challenges to the convenience test on federal due process and Commerce Clause grounds, was premised on our conclusion in Speno that the convenience test is a valid interpretation of the Tax Law.

Petitioner contends that while the convenience test as applied in Speno and Zelinsky may have comported with the Tax Law, his circumstances are different because he was not seeking to avoid or evade taxes. But our decisions in Speno and Zelinsky did not rest on any notion that these taxpayers were motivated to work at home to sidestep New York income tax liability. Further, although petitioner may not be in a position to commute physically into New York State each day to work,³ he is the one who chose to accept employment from a New York employer (with the advantages of a New York salary and fringe benefits) while maintaining his residence in Tennessee, some 900 miles and a two-hour plane trip distant from his New York employer’s office.

In short, the statute facially evidences the Legislature’s intent to tax nonresidents on all New York source income, and to task the Commissioner to develop a workable rule for apportioning and allocating the taxable income of nonresidents who work both within and without the state. The Commissioner has carried out his statutory responsibility by adopting the convenience of the employer test.

III.

Petitioner’s due process challenge to the convenience test relies principally on Supreme Court cases involving taxes on interstate businesses (see e.g. Wisconsin v J.C. Penney Co., 311 US 435, 441 [1940] [upholding from due process challenge tax on the “ ‘privilege of declaring and receiving dividends, out of income derived from property located and business transacted in’ Wisconsin”]; Moorman Mfg. Co. v Bair, 437 US 267 [1978] [upholding from due process challenge Iowa’s “single-factor” formula for allocating interstate business income for tax purposes]; Hans Rees’ Sons v North Carolina ex rel. Maxwell, 283 US 123 [1931] [invalidating under Commerce Clause tax on 84% of corporation’s income where only 17% was sourced in North Carolina]). In Matter of British Land (Md.) v Tax Appeals Trib. of State of N.Y. (85 NY2d 139 [1995]), we summarized this multistate business case law as follows:

“[A] formula-based tax on income may be struck down if the income attributed to the State is in fact out of all appropriate proportions to the business transacted [by the taxpayer] in that State or if application of the apportionment formula has led to a grossly distorted result. The taxpayer bears the burden of showing by clear and cogent evidence that [application of the formula] results in extraterritorial values being taxed” (id. at 146 [citations and internal quotation marks omitted]).

While instructive, these cases are not directly relevant to this appeal. Income derived from a business’s interstate activities differs from income a nonresident earns from a New York employer—nonresidents do not implicate themselves or their employers in interstate commerce merely by working from home (see Zelinsky, 1 NY3d at 92-93), while interstate businesses are, by definition, engaged in interstate commerce. In order for these interstate business precedents to bear on petitioner’s due process challenge to the convenience rule, we must tease out their Commerce Clause implications.⁴

The dormant Commerce Clause “prohibits state taxation, or regulation, that discriminates against or unduly burdens interstate commerce and thereby imped[es] free private trade in the national marketplace” (General Motors Corp. v Tracy, 519 US 278, 287 [1997] [citations and internal quotation marks omitted]). A four-pronged test has developed over the course of the Supreme Court’s Commerce Clause jurisprudence. A state tax on interstate commerce violates the dormant Commerce Clause unless it “is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State” (Complete Auto Tr., Inc. v Brady, 430 US 274, 279 [1977] [upholding under Commerce Clause “a state tax for the privilege of carrying on within a state, certain activities related to a corporation’s operation of an interstate business” (id. at 274 [internal quotation marks omitted])]).

The Commerce Clause’s requirement of fair apportionment has been said to be a “principle of fair share . . . which is threatened whenever one State’s act of overreaching combines with the possibility that another State will claim its fair share of the value taxed” (Oklahoma Tax Commn. v Jefferson Lines, Inc., 514 US 175, 184 [1995] [holding superseded by statute]). “[T]he central purpose behind the apportionment requirement is to ensure that each State taxes only its fair share of an interstate transaction” (Goldberg v Sweet, 488 US 252, 260-261 [1989]).⁵

Shaffer v Carter (252 US 37 [1920]) is the Supreme Court’s last decisive statement on a state’s ability to tax the income of a nonresident as opposed to a business engaged in interstate commerce. There, the Court held that “just as a state may impose general income taxes upon its own citizens and residents whose persons are subject to its control, it may, as a necessary consequence, levy a duty of like character, and not more onerous in its effect, upon incomes accruing to nonresidents from their property or business within the state, or their occupations carried on therein” (id. at 52).

Petitioner contends that the convenience rule violates due process because he is taxed out of all proportion to the benefits that he receives from New York. Accordingly, he asks us to en-graft a proportionality requirement upon existing due process precedent. The Supreme Court, however, has established distinct Commerce Clause and due process restraints in its state taxation rules. Specifically, the Court has stated that the dormant Commerce Clause is “a means for limiting state burdens on interstate commerce” (Quill Corp. v North Dakota, 504 US 298, 313 [1992]). It is in this context that the apportionment standard was developed. If a state overreaches by taxing an activity that another state is also justified in taxing, the burden placed on interstate commerce is too great to withstand constitutional scrutiny.

Due process, on the other hand, is .“a proxy for notice” (id.) and looks to the connection that must be present between the taxpayer and the taxing state before the state has authority to impose its power to tax (see Northwestern States Portland Cement Co. v Minnesota, 358 US 450 [1959]; Quill, 504 US 298 [1992], supra). All that is required to satisfy due process is some “minimal connection” between the taxpayer and the state, and that the income the state seeks to tax be “rationally related to values connected with” the state (see Moorman Mfg. Co., 437 US at 273 [internal quotation marks omitted]).

As the Commissioner argues, the convenience test is, in effect, a surrogate for interstate commerce. Where work is performed out of state of necessity for the employer, the employer creates a nexus with the foreign state and essentially establishes itself as a business entity in the foreign state. This nexus is often enough to expose the employer to corporate and sales and use taxes in the foreign state (see e.g. Amerada Hess Corp. v Director, Div. of Taxation, N.J. Dept, of Treasury, 490 US 66, 73 [1989] [finding substantial nexus between state and income from oil company’s oil production which occurred entirely without the state because oil company had some operations in state and was a “unitary business”]). The convenience test stands for the proposition that New York will not tax a nonresident’s income derived from a New York employer’s participation in interstate commerce because in such a case, the nonresident’s income would not be derived from a New York source.

In Zelinsky, we found the minimal connection called for by due process on account of the taxpayer’s “physical presence in New York and because he . . . purposefully avail[ed him] self of the benefits of an economic market in” New York {Zelinsky, 1 NY3d at 97 [internal quotation marks omitted]). Here, petitioner objects that, read and applied literally, the convenience of the employer test would allow New York to tax 100% of the income of a nonresident who worked out of his employer’s place of business in New York just one day a year. He argues that due process demands proportionality in order to prevent this presumed overreaching. Whether due process would countenance this particular result—taxation of 100% of the income of a nonresident who spends a trivial amount of time working in New York—is simply not before us. We conclude that the minimal connection required by due process plainly exists in this case where petitioner accepted employment from a New York employer and worked in his employer’s New York office approximately 25% of the time annually. Moreover, the amount of time that petitioner spent working in New York—25%—is significant enough to satisfy any rough proportionality requirement called for by due process.

As to whether New York’s taxation of 100% of the nonresident’s income was “rationally related” to values connected with the state, in Zelinsky we noted the “host of tangible and intangible protections, benefits and values” New York provided to the taxpayer and his employer, and that these benefits were provided every day, regardless of whether the taxpayer chose to absent himself from New York {id. at 95). “New York may require contributions from [the taxpayer] because he thus realized] current pecuniary benefits under the protection of the government, and the tax imposed need not bear an exact relation to the services actually provided to the individual taxpayer” (id. [emphasis added, citations and internal quotation marks omitted], quoting Matter of Tamagni v Tax Appeals Trib. of State of N.Y., 91 NY2d 530, 544 [1998]). Certainly, the same may be said of petitioner.

Under the convenience of the employer test, New York taxes a nonresident employee’s income from a New York employer except to the extent the income is connected with the employer’s participation in interstate commerce. By taxing only income sourced to New York, the convenience test is rationally related to values connected with New York because New York has the right to tax 100% of a nonresident employee’s income derived from New York sources. Where a nonresident employee must perform work out of state for the employer’s necessity, a nexus is created between the employer and the foreign state. New York does not tax the nonresident employee’s income derived from these activities, which are properly sourced to the foreign state. Thus, the convenience test constitutes an across-the-board standard designed to comply with both due process and the Commerce Clause.⁶

IV

Nordlinger v Hahn (505 US 1 [1992]) established the equal protection standard for tax cases:

“the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decision-maker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational” (id. at 11 [citations omitted]).

Further, “[a]bsolute equality is impracticable in taxation, and is not required by the equal protection clause .... [Inequalities that result not from hostile discrimination, but occasionally and incidentally in the application of a system that is not arbitrary in its classification, are not sufficient to defeat the law” (Maxwell v Bugbee, 250 US 525, 543 [1919]).

Petitioner argues that the convenience test impermissibly discriminates between those employees who work out of state for personal convenience and those who work out of state as a necessity. New York distinguishes between these two classes of nonresidents because by doing so, it properly taxes nonresidents only on income sourced to New York, and, concomitantly, avoids taxing income derived from interstate commerce. This classification, which is designed to comply with both the Commerce Clause and the Due Process Clause, is therefore rational in every respect.

Petitioner criticizes the convenience test as unfair and unsound as a matter of tax policy and a discouragement to telecommuting. Maybe so. We do not view it as our role, however, to upset the Legislature’s and the Commissioner’s considered judgments so long as the convenience test has been constitutionally applied in this case. For all the reasons given, we conclude that the convenience test as applied to petitioner complies with the requirements of due process and equal protection.

Finally, we agree with the Appellate Division that petitioner is not a prevailing party entitled to recover litigation and administrative costs pursuant to Tax Law § 3030. Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

1 . The Court, however, held that an exemption that discriminated against nonresidents violated the Privileges and Immunities Clause (252 US at 80).

2 . The convenience test was formerly found at 20 NYCRR 131.16 (see Speno). The policy, if not the regulation, appears to have been in place since at least 1951, the tax year considered in Matter of Burke v Bragalini (10 AD2d 654 [3d Dept I960]).

3 . The taxpayer in Speno was arguably also unable to commute physically to his employer’s New York workplace daily; he lived in Summit, New Jersey and his company’s New York offices were located upstate in Ithaca and Syracuse. The taxpayer in Zelinsky lived in Connecticut and commuted to work in Manhattan.

4 . We note that petitioner does not claim that application of the convenience rule in his case violates the Commerce Clause.

5 . The “threat” of misapportionment is measured by two factors—internal and external consistency. “Internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear” (Oklahoma Tax Commn., 514 US at 185). External consistency looks to “the economic justification for the State’s claim upon the value taxed, to discover whether a State’s tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State” (id,.). The external consistency test asks “whether the State has taxed only that portion of the revenues from the interstate activity which reasonably reflects the instate component of the activity being taxed” (Goldberg, 488 US at 262).

6 . The dissent fails to acknowledge the two factors that drive our analysis and our conclusion that due process is not offended when New York taxes all of petitioner’s income from his New York employer. First, nonresident individuals are simply not the same as interstate businesses, and these differences must be taken into account when considering whether a tax meets with due process. Second, the purposes and scope of the Due Process and Commerce Clauses are not coextensive and, as the Supreme Court has held, a tax can burden interstate commerce without violating due process (see Quill).