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Working for NY Company Remotely From NJ

My paystub currently is only taking out NY taxes. Should I have my employer also take out NJ taxes? Don't want to overpay, but also don't want to owe a lot at the end of the year.

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10 Replies
rjs
Level 15
Level 15

Working for NY Company Remotely From NJ

You didn't say why you are working remotely. It makes a big difference, because New York has a "convenience of the employer rule," but New Jersey does not agree with New York's rule. That creates a conflict that could be a big problem for you.


You also didn't say where you live. All of your income is always subject to tax by the state that you live in, no matter where the income is from. I assume that you live in New Jersey. If that's not correct, it could change the answer, so let us know what state you live in.


The usual rule in most states, including New Jersey, is that income is sourced from the state where you do the work. So if you work in New Jersey, the income you earn is from a New Jersey source, and is therefore taxable by New Jersey. It doesn't matter where the employer's office is located. You are doing the work in New Jersey. Since you also live in New Jersey, the income is only subject to New Jersey tax, and not to New York tax.


But New York does not follow that rule. According to New York tax law, the source of the income paid by a New York employer depends on why you are working in another state. If your employer wants you to work in New Jersey for business reasons, then you are working in New Jersey for the "convenience of the employer." In that case, the usual rule applies. You are employed in New Jersey and your income is from a New Jersey source. You would pay New Jersey tax on the income, and not New York tax. The business reasons could be because your employer wants to have a representative in New Jersey, perhaps to work with New Jersey customers, or to oversee some operations of the employer in New Jersey, or because the employer does not provide office space for you in New York and requires you to work at home.


If you are working in New Jersey for the convenience of the employer, you would pay only New Jersey tax. So you should have New Jersey tax withheld from your pay, and not New York tax.


On the other hand, if you are working remotely because that is your own preference, then it's for your own convenience, not the employer's convenience. In that case, since you are telecommuting to a New York office, New York considers the income to be from a New York source, the same as if you actually worked in the New York office. That makes the income subject to New York tax. But New Jersey does not agree with that. New Jersey considers it New Jersey source income, because you are doing the work in New Jersey. So New York says the income is from New York, and New Jersey says the income is from New Jersey.


If you actually worked in New York, New Jersey would recognize the income as New York income. You would pay New York tax on the income, and you would get a credit on your New Jersey income tax return for the tax that you pay to New York. The net result would essentially be that you would pay little or no New Jersey tax. But New Jersey only allows the credit for tax that you pay to New York on income that is "properly taxed" by New York. Since New Jersey considers the income to be from a New Jersey source, they do not consider it "properly taxed" by New York. Therefore they will not allow the credit on your New Jersey tax return. You would be filing your New York tax return as a nonresident, and the New York nonresident tax return does not have a credit for tax paid to another state.


So if you are telecommuting from New Jersey to New York for your own convenience, in order to satisfy the tax laws in both states you would have to pay tax to both New York and New Jersey on the same income. You would not get credit on either state's tax return for the tax paid to the other state.


Your employer, being a New York employer, has to follow New York law. The fact that they are withholding New York tax indicates that they are treating your income as New York income, even though you are working in New Jersey. Your W-2 will show New York income, so the state will see it that way.


There is no easy, legal answer to this situation. If you are telecommuting from New Jersey to New York for your own convenience, I suggest that you consult a local tax professional for advice on how to handle it.

 

Working for NY Company Remotely From NJ

Thank you for your detailed response! I live in NJ and am working from home because the team is scattered so there is no reason for me to go to the office. Sounds like I'll have to pay taxes for both NJ and NY which isn't the best news. Not sure how to avoid that.

TomD8
Level 15

Working for NY Company Remotely From NJ

@eb1226 —

 

You’ll be filing two state tax returns: a non-resident NY return and a resident NJ return.  On your NJ return, you’ll be able to claim a credit for the taxes you pay to NY, so in effect you won’t be double-taxed.

**Answers are correct to the best of my ability but do not constitute tax or legal advice.
rjs
Level 15
Level 15

Working for NY Company Remotely From NJ

As I said above, you cannot legally claim the credit on your New Jersey tax return for the tax that you pay to New York. One of the requirements for the New Jersey credit is that "The income must have been properly taxed by the other jurisdiction." [NJ-1040 instructions, page 31, italics added] But New Jersey Division of Taxation Publication GIT-3W, page 5, says "another jurisdiction may properly tax a nonresident's income from: Services rendered within that jurisdiction." But your services are rendered in New Jersey, not in New York. Since the services are not rendered within New York, according to New Jersey tax law the income from those services is not "properly taxed" by New York, even though you pay New York tax on it. Therefore that income, the income you earn for working in New Jersey, cannot be used to calculate the credit for tax paid to New York.


Consult a local tax professional or a tax lawyer to see if there is any legal way to avoid paying tax to both states on the same income.

 

TomD8
Level 15

Working for NY Company Remotely From NJ

From NJ 601-1 from the New Jersey Division of Taxation:

 

"Include on Line 1 only amounts properly taxable by the other jurisdiction. In general, this includes compensation for services performed; net profits from a business, trade, or profession carried on in the other jurisdiction; S corporation income allocated to the other jurisdiction; or income or gains from the ownership or sale of real or personal property in the other jurisdiction."

https://www.nj.gov/treasury/taxation/pdf/pubs/misc/nj601_i.pdf

 

I do not believe that in actual practice NJ subjects its residents who work remotely for an NY employer (and are taxed by the State of NY) to double taxation.  

 

I would also point out that NJ allowed its residents who worked remotely for Massachusetts employers and who - per Massachusetts law - were taxed by MA during Covid, to take the other state credit.

 

 

**Answers are correct to the best of my ability but do not constitute tax or legal advice.
rjs
Level 15
Level 15

Working for NY Company Remotely From NJ


@TomD8 wrote:

I would also point out that NJ allowed its residents who worked remotely for Massachusetts employers and who - per Massachusetts law - were taxed by MA during Covid, to take the other state credit.


That was a temporary provision during the pandemic. It ended October 1, 2021. See the link that SweetieJean posted above.

 

"As required under the long-standing pre-pandemic rules, beginning on and after October 1, 2021, employers should resume sourcing income based on where the service or employment is performed and withhold New Jersey Gross Income Tax from such wages." [bold in original]

 

TomD8
Level 15

Working for NY Company Remotely From NJ

@rjs —

 

The citation provided by you and @SweetieJean had to do with how NJ employers were to source the income of non-resident remote employees.  It had nothing to do with NY employers taxing NJ residents.

**Answers are correct to the best of my ability but do not constitute tax or legal advice.
rjs
Level 15
Level 15

Working for NY Company Remotely From NJ

Under New Jersey law, any employer that has an employee working in New Jersey is a New Jersey employer. It doesn't matter whether the employer has an office in New Jersey, it doesn't matter whether the employee is remote or on-site, and it doesn't matter where the employee lives. What matters is "where the service or employment is performed."


I didn't want to get into the employer's side of the issue, but this is why the conflict between New York and New Jersey tax laws becomes a problem for the employer, and why many New York employers simply ignore the New Jersey law if they can get away with it. If a company has even one employee who works in New Jersey, that company is a New Jersey employer. Not only does that mean that they have to withhold New Jersey tax from the employee's pay, and remit the tax to the state. It also means that the company itself becomes subject to New Jersey income tax. The company has to file a New Jersey tax return and allocate some portion of it's income to New Jersey, even if it's only a small portion. It doesn't matter whether the company has an office in New Jersey, or whether the New Jersey employee is working remotely. These rules apply simply because they have an employee who does his or her work in New Jersey.


At the same link:

"On and after October 1, 2021, the pre-pandemic Corporation Business Tax nexus standard applies whereby an employee working from home will create Corporation Business Tax nexus for an employer because working at a location in New Jersey is considered physical presence in this State."


It's a big mess. It's a problem for the employee and the employer. And it's not going to get straightened out anytime soon.

 

TomD8
Level 15

Working for NY Company Remotely From NJ

Regardless of all that, my advice to the taxpayer who asked the original question in this thread is that he should claim the “other state credit” on his NJ tax return, as I’m sure is done by the many thousands of NJ telecommuters who are taxed by NY.  I seriously doubt that NJ will deny that credit.

 

I’ll add that I’ve never seen a question on this forum from an NJ resident telecommuter who was denied the other state credit for taxes paid to NY.  

**Answers are correct to the best of my ability but do not constitute tax or legal advice.
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