Determination Form - New York Division Of Tax Appeals (Page 4 of 4) in pdf

Determination Form - New York Division Of Tax Appeals Page 4

360 NYS2d 855, 858.)

C. In upholding the validity of the "convenience of he employer" rule, the Court of Appeals, in Zelinsky v. Tax

Appeals Tribunal (1 NY3d 85, 769 NYS2d 464, cert denied 158 L Ed 2d 619), noted that the taxpayer

benefitted directly from an employment opportunity and an office in New York and from a salary which he was

able to earn entirely within the State if he chose to do so. This is precisely where the present matter is

distinguishable from Zelinsky.

The credible testimony of petitioner, as well as the letter from Winstar's senior vice president for human

resources, established that petitioner's relocation from his office in New York City was done out of the

employer's necessity, i.e., the need to minimize Winstar's rent costs. Immediately upon his relocation,

petitioner's building pass at the New York City office was rescinded, and petitioner was informed by the

employer that no office space would thereafter be available to him at that location or at any other location

within the City or State of New York. After September 30, 1999, petitioner no longer traveled to New York to

conduct his business, and he did not even speak to anyone in New York concerning his job duties. Petitioner's

paycheck originated from Winstar's Virginia offices.

Clearly, petitioner's services could not have been undertaken at his employer's office in New York, and

accordingly, it must be found that the relocation to his home in Connecticut was not for petitioner's convenience

but was, instead, out of his employer's necessity. Had he not accepted the relocation, petitioner would have been

forced to move to Virginia (and pay all expenses associated therewith) or lose his employment altogether.

Petitioner's allocation, as set forth on his 1999 nonresident return, was, therefore, proper.

D. The petition of C. Gregory Devers is granted and the Notice of Deficiency issued on November 18, 2002 is

hereby canceled.

DATED: Troy, New York

May 5, 2005

/s/ Brian L. Friedman

ADMINISTRATIVE LAW JUDGE

1. The 1999 form W-2, Wage and Tax Statement, issued by Winstar to petitioner indicated that the address of

the company was 1577 Spring Hill Road, 6

Floor, Vienna, Virginia 22182.

[Back to

Top][What's

New?][Home]

Determination Form - New York Division Of Tax Appeals Page 4