Tuohy v. Procaccino , 378 N.Y.S.2d 810 ( 1976 )

Proceeding pursuant to CPLR article 78 .(transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Tax Commission which denied petitioner’s application for a refund of personal income taxes for the year 1971. Petitioner, a New Jersey resident, was employed during 1971 as an instructor at the College of Mount Saint Vincent located in Bronx County, New York. He commenced this proceeding following a determination by the State Tax Commission that he was not entitled to a refund of personal income taxes for the year 1971 upon his claim that income derived from New York sources should not include an amount representing his allocation of income to days he worked without this State. The record reveals that although his employer supplied him with office space at the college, petitioner chose to work at his New Jersey home when preparing for classes and grading examination papers. Substantial evidence supports the determination' that this work was not required to be accomplished out-of-State by his employer, but was performed there by petitioner for his own convenience. Accordingly, the determination must be confirmed (Matter of Speno v Gallman, 35 NY2d 256; Matter of Page v State Tax Comm., 46 AD2d 341). Determination confirmed, and petition dismissed, without costs. Herlihy, P. J., Greenblott, Kane, Koreman and Main, JJ., concur.