by Matt Barr

If you try to sit, I'll tax your seat

A telecommuter whose job is "based" in New York but who works from home in another state must pay 100 percent of his New York income tax liability, not just a percentage based on how often he was at the office, the New York Court of Appeals held.

"New York provides the job, New York provides the professional opportunity, and New York should be able to tax that income, even if the employee for his own convenience was working outside of New York state," said Marc Violette, spokesman for state Assistant Solicitor General Julie Mereson, who won the case.

The issue split the court, and the majority acknowledged the decision could discourage telecommuting.

"New York has the right to tax 100 percent of a nonresident employee's income derived from New York sources," according to the 4-3 decision by Court of Appeals. The court relied on a fairness rule called the "convenience of the employer" under law that says a worker's income is taxable if he chooses to live outside the state, as opposed to if he or she was transferred there.

In a strong dissent, Judge Robert Smith argued that the basis of the majority's decision that all income is taxable is "that the commissioner says it is ... The majority cites no authority at all, and offers no persuasive reason, in support of this new interpretation."

Oh, persuasive reason is so 20th century. I am among the probably substantial percentage of "telecommuters" (another 20th century term) who would not work for his employer if he couldn't telecommute, owing mostly to the fact my employer's base of operations is 1,063 miles away. I have a feeling I'd rather pay Oklahoma taxes than Ohio, but I pay Ohio, which makes the most intuitive sense in my case. I wonder what the state where the guy lives has to say about all this?

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