BY JEFF JOHN ROBERTS in Fortune.com on June 27, 2020 7:00 AM CDT
As the COVID-19 outbreak battered Brooklyn in March, Beth and Ryan Carey decided to flee. The two educators and their toddler, Finn, drove nine hours south to stay with family in North Carolina. They have yet to return. Like many others who left New York during pandemic, the Careys have discovered numerous upsides to leaving the city: a lower cost of living, ample space for Finn and their hound dog, Cash Money, to roam, a more leisurely pace of life. And since both can do their job remotely, the couple are tempted to leave the stresses of New York life behind for good.
But just because they may be ready to part ways with New York doesn’t mean the state is ready to part ways with them.
What is the ‘convenience rule’?
As it turns out, moving to another state—even one 500 miles away—doesn’t mean workers can escape the clutch of New York’s powerful tax collectors. The reason is a controversial tax policy, known as the “convenience rule,” which deems that those who work for a New York company are earning wages in the state even if they are telecommuting. In the view of the Albany tax gnomes, a move to North Carolina, like the one made by the Careys, is one of convenience, not necessity. And that means, for tax purposes, they are are still working in New York.
A handful of other states—Pennsylvania, Delaware, and Nebraska have formal convenience rules of their own—but tax lawyers say those states don't enforce the rules with nearly the same vigor as the Empire State.
“New York has always had an aggressive tax department,” says Elizabeth Pascal, an attorney with Hodgson Russ, adding the state uses sophisticated auditing software in its hunt for revenue.
The upshot is that many middle-class workers who are contemplating permanent post-COVID relocations could face tax headaches more familiar to affluent earners like hedge fund managers and professional athletes. And many could face the prospect of double taxation.
Edward Zelinsky, a professor at Cardozo Law School, knows this firsthand. The Connecticut resident has battled New York in court for years, saying he is willing to pay tax on the days he is physically present to teach, but that he should not have to pay income tax on the days he works from home. His legal challenges have come up short in New York’s courts, however, meaning Zelinsky has had to pay income tax in two states.
Tax credits for commuters
Zelinsky and other telecommuters caught a break two years ago when Connecticut changed its tax policy to let its residents who paid New York income tax obtain an offsetting credit. But the credit does not entirely reduce the burden since New York tax rates are higher than those in Connecticut.
Meanwhile, most other states do not provide any credit to resident telecommuters who pay under New York’s long-arm tax rules. The reason, says Zelinsky, is that those states don’t believe the New York policy is legitimate. (Unsurprisingly, Zelinsky agrees with this position, arguing New York’s convenience rule violates the Constitution).
In an ideal world, Congress or the 50 states themselves would devise a compact to prevent double taxation and to clarify how telecommuters should be taxed. And indeed, there are pockets of such cooperation—notably in the form of reciprocity agreements among the District of Columbia and neighboring states, and between Illinois and its neighbors.
The broader reality, though, is that many of those who telecommute across state lines will face conflict and confusion. And the situation is likely to get worse as states react to the economic shocks created by COVID-19.
The State of Arkansas, for instance, created a buzz among tax lawyers this May after it issued a legal opinion saying that a computer programmer in Washington State should pay income tax to Little Rock for work done for an Arkansas entity.
As these situations become more common, the nation’s growing telecommuter workforce will face hard choices in the coming tax year.
Exceptions and enforcement of the convenience rule
While New York is aggressive about enforcing its convenience rule, there are three ways to escape it. The clearest exemption is for those employees who transfer to a company’s out-of-state office: A New Yorker who moves to her firm’s satellite office in Boston need only pay taxes to Massachusetts.
In the case of an out-of-state employee working from a home office, though, it’s not so easy to escape New York’s clutches, says tax lawyer Pascal. In order to qualify for an exemption, she says, the worker must be performing a task at the employer’s behest that could only be done out of state. For instance, the employee might require proximity to a special laboratory or factory that doesn’t exist in New York.
The third way to avoid New York’s convenience rule is for telecommuters to avoid setting foot in the state—though there is some debate about what this entails. Pascal says an employee can safely go to New York for a vacation so long as the trip doesn’t have work purposes, but a recent bulletin from Ernst & Young suggests that spending even “one day” a year in the state could trigger the rule.
Zelinsky, meanwhile, says he used to tell people they could go New York for non-work purposes, but that he believes tax authorities will no longer grant such latitude.
Fortune sought clarity from New York’s Department of Taxation and Finance about how and when the convenience rule applies, but did not receive a response.
Some other states, meanwhile, have issued guidance to say they won’t tax those who are working remotely in their states as a result of the coronavirus. But many others have not, and given the dire fiscal situations many states are finding themselves in, it’s unlikely tax authorities will be in a forbearing mood next year.
New York, in particular, could become still more aggressive in seeking income tax revenue. Several tax lawyers have noted the state offered little relief to those who had to relocate in the wake of Hurricane Sandy in 2012. And Zelinsky points out the state has even refused to provide tax exemptions for medical workers who came to the state to assist with the COVID-19 emergency—including many nurses from Tennessee, where there is no income tax at all.
Some middle-class telecommuters may wonder if they can avoid out-of-state tax headaches by simply declaring income in their resident state, and hoping for the best. Tom Corrie, a tax lawyer at Friedman LLP, says that New York has historically targeted high-income individuals for audits, rather than those making $50,000 a year.
But a modest income is no guarantee, of course, that an out-of-state telecommuter will escape an audit by New York tax authorities. This is especially the case given that the state, according to Corrie, is facing a drastic shortfall in sales-tax revenue as a result of the pandemic.
“The state is extremely hungry for money,” he says.