Can a Connecticut resident who works for Citicorp in New York City allocate to Connecticut, and exclude from New York income, the four days per week he works from a home office that Citicorp itself set up as part of a corporate office-space-cutting telecommuting program?

Plain-English summary

Mark F. Annitto, a Connecticut resident, worked for Citicorp as an environmental specialist (report reviewer) out of an office at 599 Lexington Avenue in New York City. In early 1996, Citicorp picked Annitto as one of 11 participants in a pilot "Alternative Workplace Strategy Program" aimed at cutting corporate office-rental costs. His permanent office moved to smaller, shared quarters at 425 Park Avenue - so cramped that he'd have to reserve a "hotel" cubicle for the one day a week he'd actually be in the building - while Citicorp equipped his Connecticut home with a full computer setup, a dedicated phone line, furniture, and a fax/modem/copier/printer. Under the program Annitto worked four days a week from that Connecticut home office (which he was required to use, with no allowance to rent outside space, and no reimbursement for electricity, air conditioning, or heat) and reported to the New York office one day a week. He asked whether he could allocate - that is, exclude from New York-source income - the wages attributable to those four Connecticut days.

New York answers that question with the "convenience of the employer" test under 20 NYCRR 132.18(a): a nonresident who works in New York or maintains a New York office can only allocate out-of-state days if the services performed there were of necessity, not mere convenience, in the service of the employer. The opinion walks through decades of case law drawing that line. Working at home to save the employer money on overtime, heat, or transportation (Burke v. Murphy) is convenience. Working from home for "increased productivity" (Gross) or because the employer simply doesn't provide adequate office space (Page, Kitman) is still convenience, because nothing shows the work itself couldn't be done at the employer's New York office - even elaborate home equipment (Kitman's four televisions and VCR) or an at-home secretary (Fischer) doesn't change that. An office being "generally unavailable" on weekends (Wheeler) isn't necessity either, if a little ingenuity could make it available. The one outlier is Fass v. State Tax Commn., where a magazine editor genuinely needed a firing range, a garage, and a stable and kennel to test the products he wrote about - facilities that literally could not be set up at his employer's New York City offices. That is necessity; everything else in the case law is convenience, however real the cost savings or however much the employer directs or benefits from the arrangement.

Applying that framework, the Department held that Annitto could not allocate his Connecticut days. His work as an environmental report reviewer requires no specialized off-site facility - it is exactly the desk work he had done at Citicorp's New York City office before 1996. The fact that Citicorp itself designed, equipped, and even required the telecommuting arrangement didn't matter, because Citicorp's motive was reducing its own office-rental costs, not any necessity requiring Annitto's particular duties to be performed outside New York. Since the work could have been performed at Citicorp's New York office, all four Connecticut days counted as New York working days, and Annitto's entire 1996 salary remained taxable as New York-source income under 20 NYCRR 132.18(a).

What this means for you

Nonresident employees whose employer sets up or directs a work-from-home arrangement

Even if your employer builds you a home office, supplies the equipment, and requires you to work from home several days a week, that alone does not let you allocate those days out of New York income. The test looks at whether the specific work you do could physically be performed at your employer's New York office - not at who chose the arrangement or why the employer likes it. Ordinary desk, paperwork, review, or analysis work is presumptively convenience, no matter how the employer frames the business reason (cost savings, efficiency, real estate strategy).

Employers designing remote/hybrid work policies for New York-based roles with nonresident employees

A program built to reduce office-rental costs - like Citicorp's Alternative Workplace Strategy here - does not itself create a tax-allocation benefit for the affected employees, even though the employer directs and benefits from it. If you want nonresident employees to have a real basis to allocate home-office days, the case law suggests it takes something closer to Fass: duties that require facilities or conditions that genuinely cannot be replicated at the New York office, not just a preference for remote work.

Common questions

Q: Does it matter that Citicorp, not Annitto, chose and designed the telecommuting arrangement?
A: No. The opinion is explicit that it is not enough that the employer directs the arrangement or even benefits from it (here, through lower office-rental costs). The question is whether the nature of the employee's work required it to be done outside New York, not who set up the arrangement or why.

Q: What would make a work-from-home day actually count as "necessity" under this test?
A: Following Fass v. State Tax Commn., the work has to require facilities or conditions that genuinely cannot be provided at the employer's New York office - like a firing range, garage, and kennel for a magazine editor testing sporting goods and reviewing pets. Ordinary desk work, research, writing, or paperwork does not qualify, even with specialized home equipment, as Kitman's television critic (denied despite employer-supplied TVs and a VCR) shows.

Q: Is saving the employer money ever enough to establish necessity?
A: No. Burke v. Murphy specifically rejected that argument - working at home to save the employer overtime, heat, transportation, or meal costs is still the employee's (or here, the employer's own administrative) convenience, not necessity, "despite a possible benefit to the employer."

Q: How does Fass's firing-range example differ from Annitto's situation?
A: In Fass, the petitioner's testing and evaluation work (for a firing range, garage for vehicles, and a stable and kennel for animals) could not have been performed at his employer's New York City offices at all. Annitto's work reviewing environmental reports is ordinary office work of the same kind he had performed in Citicorp's New York office before 1996 - nothing about it required a Connecticut location.

Q: Does providing an employee with dedicated home equipment (computer, phone line, fax/modem/copier/printer) help establish necessity?
A: Not by itself. Citicorp gave Annitto a full home office setup, and Kitman's employer gave its TV critic multiple televisions and a transmission machine - in both cases the equipment showed the employer facilitated remote work, not that the work could not have been done at the employer's own office.

Q: If the New York office genuinely doesn't have room for the employee that day, does that count as necessity?
A: Not automatically. Wheeler held that an office being "generally unavailable" over a weekend (because mail wasn't sorted and the alarm was on) wasn't necessity because "a minimum of ingenuity and effort" could have made it available. Annitto's situation was similar - the Park Avenue office was smaller because of a deliberate corporate cost-cutting decision, not because it was truly impossible to accommodate him there.

Q: Who has the burden of proving the out-of-state work was a necessity?
A: The employee. Fischer and Howell both confirm that even where an out-of-state office or activity serves some legitimate employer purpose, the taxpayer still must separately establish that the specific work being allocated - not just the broader arrangement - was necessarily performed away from the employer's New York office.

Citations and references

• 20 NYCRR 132.4(b) - a nonresident employee's New York-source income includes compensation for services rendered within New York State
• 20 NYCRR 132.18(a) - allocates a nonresident employee's compensation by the ratio of New York working days to total working days; out-of-state days must be of necessity, not convenience, to count
• Matter of Speno v. Gallman, 35 NY2d 256, aff'g 42 AD2d 627 - articulates the "convenience of the employer" test and its rationale that a nonresident who works in or maintains an office in New York gets no special tax benefit for working at home that a New York resident wouldn't get
• Matter of Fass v. State Tax Commn., 68 AD2d 977, aff'd 50 NY2d 932 - allocation allowed where specialized facilities (firing range, garage, stable, kennel) genuinely could not be provided at the employer's New York office
• Matter of Wheeler v. State Tax Commn., 72 AD2d 878 - weekend bond-market analysis at a New Jersey home was convenience; the New York office could have been made available with minimal ingenuity
• Matter of Burke v. Murphy, 33 AD2d 581 - working at home to save the employer overtime, heat, and transportation costs is convenience, not necessity
• Matter of Page v. State Tax Commn., 46 AD2d 341 - writer's Connecticut home office denied allocation absent proof the employer's office could not accommodate the work
• Matter of Gross v. State Tax Commn., 62 AD2d 1117 - employer's preference for home work to increase productivity is not necessity
• Matter of Kitman, 92 AD2d 1018 - TV critic's employer-supplied home equipment did not show the work could not be done at the employer's office
• Matter of Fischer v. State Tax Commn., 107 AD2d 918 - engineer allowed allocation for construction-site days but not general home-office paperwork days
• Matter of Howell, TSB-D-91(26)I - NYU professor failed to connect specific home-based duties to a necessity for performing them away from his office

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_1996.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a96_10i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-96 (10) I
Income Tax
December 26, 1996

Taxpayer Services Division
Technical Services Bureau
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I951222B

On December 22, 1995, a Petition for Advisory Opinion was received from
Mark F. Annitto, 56 William Drive, East Hampton, Connecticut 06424.
The issue raised by Petitioner, Mark F. Annitto, is whether he is allowed
to allocate outside New York State a portion of his 1996 wage and salary income
for the days that he works at his Connecticut home.
Petitioner submits the following facts as the basis of this Advisory
Opinion.
Petitioner is a resident of Connecticut, and is employed as an
environmental specialist (report reviewer) by Citicorp. Petitioner's office is
at 599 Lexington Avenue in New York City.
Commencing in early 1996, Petitioner was one of 11 participants chosen to
trial an Alternative Workplace Strategy Program.
Early in January 1996,
Petitioner's permanent office moved from 599 Lexington Avenue to smaller quarters
at 425 Park Avenue for the purpose of reducing corporate office rental cost. In
return, Citicorp is providing Petitioner and the 10 other individuals with the
following: complete computer set-up at home, installation of a dedicated phone
line, telephone, furniture, and fax/modem/copier/printer.
Petitioner states that he will work at his Connecticut home office four
days a week and report to the New York City "hotel" office one day a week.
Petitioner's private office at Lexington Avenue will not be replaced at the Park
Avenue office. Petitioner will have to reserve a cubicle for that one day a week
that he works in the New York City office because there will not be sufficient
room at the new location for all of the people to work at the same time.
As part of the program, Petitioner is to use his home as his office. He
is not allowed to rent any space.
Petitioner will not be reimbursed for
electricity, air conditioning or heat.
Section 132.4(b) of the Personal Income Tax Regulations provides that:
[t]he New York [source] income of a nonresident individual rendering
personal services as an employee includes the compensation for
personal services entering into [the individual's] Federal adjusted
gross income, but only if, and to the extent that, [the
individual's] services were rendered within New York State... Where
the personal services are performed within and without New York
State, the portion of the compensation attributable to the services
performed within New York State must be determined in accordance
with sections 132.16 through 132.18 of this Part.

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Section 132.18 of the Personal Income Tax Regulations provides for the allocation
of earnings of nonresident employees and officers, and section 132.18(a) states
that:
[i]f a nonresident employee ... performs services for [the
individual's] employer both within and without New York State, [the
individual's] income derived from New York State sources includes
that proportion of [the individual's] 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. The
items of gain, loss and deduction (other than deductions entering
into the New York itemized deduction) of the employee attributable
to [the individual's] employment, derived from or connected with New
York State sources, are similarly determined.
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 [the individual's] employer.
In
making the allocation provided for in this section, no account is
taken of nonworking days, including Saturdays, Sundays, holidays,
days of absence because of illness or personal injury, vacation, or
leave with or without pay ....
In Matter of Burke v Murphy, 33 AD2d 581, the petitioner was an attorney
in the legal department of an international oil company with his office in New
York City. He was responsible for legal problems affecting the company's Middle
East interests and spent 75 days working in or en route to London. He claimed
that he worked 17 days at home because "his work load was too heavy to complete
during regular work hours and that working overtime in the corporation offices
would entail additional expense for the employer for heat, transportation and
meal charges." The Court held that "[a]n employee who performs work outside of
New York for his own convenience and without necessity, rather than at his
employer's New York offices, as here, may not treat the income derived therefrom
as nonresident income, despite a possible benefit to the employer."
In Matter of Speno v Gallman, 35 NY2d 256 affg 42 AD2d 627, the petitioner
was president of a company with offices in New York State and Switzerland. His
duties were not executive in nature, but rather entailed public relations,
entertainment and attendance at railroad meetings to promote the services of the
company. He spent very little time in the office and traveled a great deal
making contacts with customers. In 1960, he claimed 236 days of work outside New
York of which 106 were worked at his home in New Jersey. In 1961, he claimed 252
days of work outside New York of which 174 were worked at his home. His work
performed at home consisted essentially of making phone calls.
He did not
receive any business calls on the unlisted New Jersey number, and he did not
entertain any business contacts in New Jersey. His duties did not necessitate
his residing in New Jersey, but he lived there primarily to facilitate his
traveling to the major railroad centers where the important customers were
located. The petitioner's New York tax liability was reassessed to include the
days worked at home. The Court found that:

[t]he meaning of the phrase "sources within the state" is the focal
point in this case. Apparently, the first interpretation was made in
1919 by the Attorney-General who stated that the source of income

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relates to "the work done, rather than the person paying for it"
(1919 Report of Atty. Gen. 301). This resulted in the place of
performance doctrine, i.e., that personal services performed outside
the State would not be taxable.
In view of the large number of nonresidents who avail themselves of
employment within New York State, the place of performance doctrine
was refined by virtue of the "convenience of the employer" test.
Under this refinement, a nonresident who performs services in New
York or has an office in New York is allowed to avoid New York State
tax liability for services performed outside the State only if they
are performed of necessity in the service of the employer. Where the
out-of-State services are performed for the employee's convenience
they generate New York State tax liability.
... The policy justification for the "convenience of the employer"
test lies in the fact that since a New York State resident would not
be entitled to special tax benefits for work done at home, neither
should a nonresident who performs services or maintains an office in
New York State ....
In Matter of Page v State Tax Commn., 46 AD2d 341, the petitioner was
employed as a staff writer for a company that acted as an advisor for fundraising
drives conducted by churches and educational institutions. The employer's office
was in New York City. The petitioner's work consisted of the preparation of
brochures for publication and other material for the fund-raising drives. No
file or work space was provided at the office for staff writers as their work,
according to testimony at the hearing, is considered to be creative and not
easily performed in the atmosphere of a business office during normal business
hours. The petitioner claimed 227 days of work outside of New York, including
120 days worked at his home in Connecticut. The petitioner maintained a workshop
and library in his home which contained reference material and other material
used by him in his writing. His normal routine during the course of a campaign
was to visit the client at the client's location, consult with the employer's
officers in New York City, and do his writing at home. The Court found that:
there is no evidence to establish that an office could not have been
set up in such a manner as to make adequate space available for
petitioner's work and files, and to insulate him from interruptions
which might interfere with a proper atmosphere...
In conclusion, it has not been shown that petitioner's work was of
a type required to be performed away from the employer's office -­
excepting, of course, trips to visit out-of-State clients.
His
desire to work at home where he felt he might work more comfortably
and where all materials would be available around the clock could be
found by the Tax Commission to serve the employee's convenience
rather than the employer's necessity.

In Matter of Gross v State Tax Commn., 62 AD2d 1117, the petitioner worked
as a management consultant for a firm with offices in New York. The firm allowed
petitioner to perform his paper work at home, in New Jersey, where he worked 194
of 247 working days. The petitioner argued that his employer required him to
work at home to allow him more working time and increase his productivity. The
Court held that the petitioner:

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misconstrues the concept of work required to be performed outside
the State. Work is so required if it could not be performed within
the State [(Speno, supra)]. In the case at bar, petitioner could
just as easily have performed his work at his office in New York,
but found it more convenient to work at home. That his employer
prefers him to work at home to allow for more efficient use of time
is irrelevant to the issue of whether the work could have been
performed in New York [(Page, supra)].
In Matter of Fass v State Tax Commn., 68 AD2d 977 affd 50 NY2d 932, the
petitioner edited and published several magazines dealing with a wide variety of
special areas, including sports cars, motorcycles, firearms, home improvements,
dogs and horses. As part of his duties, he tested, analyzed and investigated new
products in these areas and reported on them in articles prepared for the various
magazines. To perform these duties for his employers, petitioner required access
to a firing range with ballistics equipment and storage facilities; a garage to
store automobiles and motorcycles for testing and evaluation; and a stable and
kennel to house the horses and dogs he analyzed and photographed.
These
specialized facilities were established and located at the petitioner's farm and
residence in New Jersey. Petitioner testified without contradiction that they
were not available at or near his employers' New York City offices.
The
Appellate Division found that:
[t]he Tax Commission has apparently taken the position that since
the specialized facilities herein could have been set up somewhere
in New York State, then the New Jersey situs was chosen merely for
petitioner's convenience. In our view, however, a taxpayer should
not be denied the right to allocate his income merely because his
out-of-State activities could have been performed somewhere in New
York State. The cases in this area do not stand for the proposition
that out-of-State services are not for an employer's necessity where
they could have been performed somewhere in New York State. Rather,
they hold that an employee's out-of-State services are not performed
for an employer's necessity where the services could have been
performed at his employer's office... The manifest rationale of
[Burke v Bragalini (10 AD2d 654); Morehouse v Murphy (10 AD2d 764,
app dsmd 8 NY2d 932); Churchill v Gallman (38 AD2d 631); Burke v
Murphy, supra; Page, supra; Simms v Procaccino (47 AD2d 149); Speno,
supra; Gross, supra; and Tuohy v Procaccino (51 AD2d 630)] is that
work performed at an out-of-State home which just as easily could
have been performed at the employer's New York office is work
performed for the employee's convenience and not for the employer's
necessity.
In the case at bar, however, the work petitioner
performed at the New Jersey locations concededly could not have been
performed at his employers' New York City office. Moreover, the
record discloses that petitioner's out-of-State activities were
engaged in for his employers' necessity.
Petitioner has thus
qualified for an allocation of his income. As a matter of law, we
reject the position that an allocation of income should be
disallowed merely because the specialized facilities herein could
have been set up somewhere in New York State.
In Matter of Wheeler v State Tax Commn.,72 AD2d 878, the petitioner was an
expert in the field of trading, selling and underwriting municipal bonds. He had
an office in New York City where he worked as an employee for several investment
firms. The nature of his work required him, over the weekend, to analyze the
bond market so he would be prepared for the next week's trading. He performed

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this work in an office in his New Jersey home. Each Saturday morning the Blue
Lists, which contain indispensable information for bond market analysis, were
sent to his home by special delivery. It was held that the income that was
generated by his weekend work was taxable. The Court cited Speno, supra; Fass,
supra; and Burke v Bragalini, supra and found that:
[n]umerous cases involving similar and almost identical factual
situations have in recent years found their way to this court and
the Court of Appeals... The manifest rationale of all of these cases
is that work performed at an out-of-State home which could just as
easily have been performed at the employer's New York office is work
performed for the employee's convenience and not for the employer's
necessity [Fass, supra]. Contrary to the petitioners' contention,
[Fass, supra] did not change or alter that rationale and affords no
support for their position here, for there we were not involved with
an office, but rather with highly specialized facilities, including
ballistics equipment, firing ranges, garages, stables and kennels,
together with sophisticated testing and evaluating equipment and,
concededly, these facilities were not available at or near the
employer's office. This is all in sharp contrast to the situation
here where the offices were "generally unavailable" over the weekend
merely because mail was not sorted and a burglar alarm was
activated. With the exercise of but a minimum of ingenuity and
effort, the office could have been available to the petitioner.
In Matter of Kitman, 92 AD2d 1018, the petitioner was a television critic
for Newsday, writing five columns each week. Although Newsday's offices were in
New York, petitioner worked at his New Jersey home, where Newsday had provided
him with four television sets, a special antenna to improve reception, a video
tape recorder, and a machine to transmit his columns to Newsday on the telephone.
Petitioner was expected to cover all aspects of television programming, from 6:00
AM past midnight, and stated that he frequently monitored several channels at
once on his multiple television sets. Newsday did not maintain an office for him
at its New York bureaus. Petitioner contended that he worked at home out of his
employer's necessity because of the specialized equipment he used; the disruptive
effect his four televisions would have had on others in the employer's New York
offices; the long hours that he worked; and his specialized style of writing
involving input from his family, who would not have been present at the New York
offices.
The Court distinguished this case from Fass, supra, where the
petitioner worked out-of-State for his employer's necessity because his work
required access to a firing range, a garage, a stable, and a dog kennel, which
were "not available at or near his employers' New York City offices." The Court
found that:
[i]n terms of availability of equipment ... nothing in the record
... establishes that vast renovation would be required to install
four televisions and a video tape recorder at Newsday's New York
offices. This situation appears analogous to [Wheeler, supra] ...
[Page, supra]. As far as disruption to the other workers from the
televisions, there is also no evidence showing that the office could
not be set up in such a way as to insulate petitioner from the other
Similarly, for petitioner to spend his
workers [Page, supra].
television viewing hours, though long at times, at the employer's
office is not much more of a hardship than for the petitioner in
[Wheeler, supra] ... Finally, concerning petitioner's need to have
access to his family because of his particular style of writing,
again, with the exercise of a little ingenuity, some means (possibly

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a special telephone line) could be devised for him to get input from
them... In summary, while it would perhaps be more feasible for
petitioner to work at home, it clearly is his choice to do so and
not an absolute necessity from the employer's standpoint.
In Matter of Fischer v State Tax Commn., 107 AD2d 918, the petitioner was
a licensed engineer and a principal in a firm which provided structural
engineering services on a consultant basis. The firm had an office in New York
City and also maintained an office in New Jersey at petitioner's home. The firm
was required to maintain the New Jersey office, as its New Jersey clients desired
local firms to avoid certain inconveniences of retaining a firm with only a New
York City office. It was also established that due to the nature of the firm's
work, the petitioner's presence at job sites in New Jersey was often required.
The petitioner claimed that he worked in New Jersey on 128 days and in New York
111 days. Of the 128 days in New Jersey, he spent 13 days at construction sites
or clients' offices, 51 days partly at construction sites and partly at the New
Jersey office in his home and 64 days solely at the New Jersey office. The Tax
Commission allowed the 13 days worked at the construction sites, but did not
consider the other 115 days as days worked outside New York State. The Court
stated that:
[i]mplicit in the Tax Commission's determination herein is its
conclusion that although the office maintained at the taxpayer's
out-of-State home may be for the employer's necessity, the burden
remains upon the taxpayer to establish that the work being done by
him at his home was also for his employer's necessity, using the
general rule set forth [in Fass, supra and Wheeler, supra]. We see
nothing irrational in this conclusion (see [Speno, supra and Kitman,
supra]).
Turning to the proof concerning the 64 days spent solely at his
office in his New Jersey home, it is noteworthy that petitioner made
no attempt to connect the paperwork and design work he did there
with the purpose of acquiring and servicing New Jersey clients,
which is the basis for the claim that the out-of-State office was
being maintained for the employer's necessity. Instead, petitioner
explained that the secretarial help at the New York office was
inadequate and that the secretary at the New Jersey office, his
wife, was the most efficient at getting the work done. We find
nothing irrational in the Tax Commission's conclusion that such
proof failed to sustain the taxpayer's burden of establishing that
his work at home was for his employer's necessity (see [Kitman,
supra and Wheeler, supra]).
In Matter of Howell, Tax App Trib Dec, October 31, 1991, TSB-D-91(26)I, the
petitioner was a clinical professor at New York University ("NYU").
The
petitioner had a large personal library of books, articles and corporate data
that he maintained at his home office in Connecticut. The petitioner worked 106
days in New York State, while he worked 145 days outside of New York State in
1985 and 1986. A letter from NYU stated that it expected petitioner to have
extensive contact with the business community via field-based research,
involvement in professional societies and through his own consulting activities.
NYU expected him to be away from the school a considerable amount of the time
that he was not teaching. NYU expected that activities such as research, course
and class development, and grading would be performed while petitioner is
traveling, on weekends, and away from the University so that petitioner could
fulfill his teaching responsibilities while at the same time maintain his high

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level of contact with the business community. The Administrative Law Judge held
that an essential aspect of petitioner's role as a clinical professor was that
he continue to maintain his close contacts with the business community. The
Tribunal held that:
this aspect of petitioner's employment clearly required him to
cultivate these contacts away from his NYU office. However, this
satisfies only the first requirement which must be met before income
may be allocated by petitioner. In accordance with Fisher,[supra,]
petitioner must also prove that the out-of-state employment duties
for which he seeks an allocation (i.e., grading, course development,
etc) were related to his out-of-state duties and, thus, were
performed away from his NYU office due to the necessity of his
employer [Fisher, supra]. Petitioner has failed to sustain this
burden. The fact that it may have been inconvenient for petitioner
to perform these duties at NYU, rather than in the course of his
outside activities, is of no consequence. In light of petitioner's
failure to make such a showing, we conclude that his entire salary
was properly included in his New York State gross income.
Section 132.18 of the Personal Income Tax Regulations provides that any
allowance claimed for days worked at home must be performed of necessity in the
service of the employer.
An analysis of the cases cited above shows that
regardless of whether certain functions of employment take a taxpayer outside New
York, the work sought to be allocated must be performed away from the employer's
New York office due to the necessity of the employer. Under these cases, it is
not sufficient that the employer does not accommodate the employee's work at the
employer's office. See, Kitman, supra. Instead, the nature of the services
performed must be of a type that could not be performed at the employer's office.
See, Fass, supra, and Fischer, supra. Work performed at an out-of-state home
which could have been performed at the employer's New York office, if
accommodations were available, is work performed for the employee's convenience
and not for the employer's necessity. The fact that the employer also benefits
from the arrangement does not establish its necessity.
In this case, the nature of the services performed by Petitioner for
Citicorp at his home in Connecticut, under the Alternative Workplace Strategy
Program, are services that could have been performed at Citicorp's New York City
office. The nature of the services do not require that they be performed outside
of the New York City office. In fact, prior to 1996 Petitioner did perform all
of his duties in the New York City office of Citicorp. Accordingly, Petitioner
may not allocate the days he works at his Connecticut home office as days worked
outside New York State for purposes of section 132.18 of the Personal Income Tax
Regulations.

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DATED: December 27, 1996

TSB-A-96 (10) I
Income Tax
December 26, 1996
s/John W. Bartlett
Deputy Director
Technical Services Bureau

NOTE: The opinions expressed in Advisory Opinions
are limited to the facts set forth therein.