But whether the country’s highest court even agrees to take up the case before the Massachusetts regulation in question expires is an open question.
Sununu said the Massachusetts Department of Revenue’s new regulation, formalized on Friday, is an unconstitutional incursion on a state that takes pride in its lack of a broad-based income tax and a fundamental threat to its sovereignty. The rule allows Massachusetts to continue to collect income taxes from out-of-state residents who previously commuted to Massachusetts but are now working from home because of the COVID-19 pandemic.
“Massachusetts has launched a direct attack on the defining feature of the ‘New Hampshire Advantage,’” Sununu said at a press conference in Concord, N.H., on Monday. “Massachusetts cannot balance its budget on the backs of our citizens.”
New Hampshire’s complaint, filed Monday, seeks three things: an order declaring that the Massachusetts rule violates the Constitution’s commerce and due process clauses, a ruling barring enforcement of the rule, and an injunction requiring a full refund of taxes collected under it. An estimated 80,000-plus New Hampshire residents used to commute regularly into Massachusetts, but it’s unclear how much money they pay in income taxes to Massachusetts.
Gordon MacDonald, New Hampshire’s attorney general, said his team is seeking relief at the US Supreme Court because it has exclusive jurisdiction over disputes involving two or more states. He said he hopes to have an answer about whether the court will take it up “by the end of the year.”
However, the Massachusetts rule is set to expire at the end of December, or when Governor Charlie Baker declares an end to the COVID-19 emergency, whichever comes first. That means the rule, as written, won’t last much longer than two more months — maybe not enough time for an answer from the Supreme Court.
Sununu said he is optimistic the case will proceed, in part because of the implications it could have elsewhere in the country.
“Unfortunately, I cannot make the court move faster,” Sununu said. “This is for the long term. . . . If this were allowed to go forward unchecked, it could have repercussions for decades to come.”
The New Hampshire complaint says “there is significant reason to believe the underlying shift in policy will survive the current pandemic.” Massachusetts has already extended this rule before, first as a temporary measure and now as a “final rule,” the complaint says.
New Hampshire’s lawyers also cite how the pandemic has drastically altered how people work, with countless Americans working from home when they previously did so in the office, and with some companies announcing that remote work will remain a permanent option after the pandemic. Therefore, MacDonald’s team reasons, Massachusetts will continue to impose its income tax rule, or something similar, long after the pandemic ends.
Baker’s Department of Revenue has portrayed the rule, in effect in some form since March, as a continuation of the pre-COVID status quo, meant to limit disruption during the pandemic. Employers and employees are advised to continue to use their previous apportionment system for people who split time between the two states: Residents from New Hampshire who commuted part time pre-pandemic would pay income taxes to Massachusetts, at the state’s current rate of 5 percent, only on the portion of their work time that they used to spend here.
New Hampshire’s attorneys, meanwhile, argue this isn’t a continuation, but an unprecedented new tax on people who no longer set foot in Massachusetts: “Upending decades of consistent practice, Massachusetts now taxes income earned entirely outside its borders.”
A spokeswoman for the Massachusetts Department of Revenue declined to comment on the lawsuit, other than to say the state has implemented “temporary regulations,” similar to those adopted “by other New England states,” such as Vermont and Rhode Island.