Remote Work and the State Taxation of Nonresident Employees

The onset of the COVID-19 pandemic caused millions of Americans to suddenly begin telecommuting across state lines. In response, several states deemed the salaries of employees who had previously worked at workplaces in the taxing state to be “sourced” temporarily to that state. Some rival states contended this was unconstitutionally extraterritorial, but the Supreme Court ultimately declined to hear their complaint. This Article explains why these sourcing rules were constitutional. The Constitution only requires a state’s method for sourcing income to be “fair” or “rational.” Given the indispensable role of employers in generating an employee’s salary—and that the state of the workplace is the labor market into which the employee has purposefully sold their services—these rules met this standard. Indeed, nearly all existing state income-attribution rules (including New York’s controversial “convenience of the employer” regulation) are constitutional. The production of income involves the contribution of several activities, so assigning it to a particular location depends on value and policy judgments about the significance of those contributions—as well as the governmental services supporting those activities. These rules might be controversial as a matter of policy, but there is little doubt they are rational and reasonable. More importantly, the judiciary’s deference to these sorts of state judgments abides the Constitution’s deeper norms about the proper judicial role. Exacting judicial review of these types of rules would risk ensnaring the courts in an endless series of problems they lack the institutional competence to solve.