The US Supreme Court said Monday it would not intervene in a dispute between New Hampshire and the Baker administration over taxing out-of-state commuters who worked remotely during the pandemic.
New Hampshire Governor Chris Sununu sued the Massachusetts Department of Revenue last fall in the Supreme Court, the typical venue for resolving legal disputes between states, after the agency adopted a temporary policy of collecting income taxes from commuters who used to travel into Massachusetts but were working remotely instead because of the COVID-19 pandemic. The Massachusetts policy, which expires on Sept. 13, applied to commuters from any other state but was a particular sticking point in income-tax-free New Hampshire. As many as 103,000 people who commuted into Massachusetts from New Hampshire before the pandemic could have been affected.
The apparent end to the border battle between the two states comes after Biden administration lawyers recommended to the Supreme Court that it not get involved. The court did not offer a reason for why it did not take up the case.
But President Biden’s acting solicitor general gave several, including that this kind of lawsuit should be filed by affected individuals, not a state government, and that the temporary nature of the Massachusetts policy made the case a poor vehicle for resolving broader issues involving remote work and taxation.
“By siding with the Biden administration and allowing inappropriate taxation of N.H. citizens, the Supreme Court is setting a costly precedent,” Sununu said in a statement. “This decision will have lasting ramifications for thousands of Granite State residents.”
Governor Charlie Baker’s administration opted not to gloat about the victory. Patrick Marvin, a spokesman for Baker’s administration and finance office simply said: “The Administration appreciates the Supreme Court’s decision.”
Eileen McAnneny, president of the business-backed Massachusetts Taxpayers Foundation, said she wasn’t surprised that the Supreme Court decided to stay out of the case, especially since the Baker administration eventually set an end date for the policy of 90 days after the state of emergency’s expiration. In May, Baker said he would end the emergency period on June 15.
“By the time they heard the case, the emergency order and the tax policy imposed would have been lifted,” McAnneny said. “It would have been a moot point.”
The Massachusetts revenue department decided early in the pandemic to continue to tax out-of-state workers who previously commuted into Massachusetts but were working from home instead.
The policy was initially scheduled to expire in December, and was later extended until 90 days after the state-of-emergency ended. But Sununu had expressed deep skepticism that the policy would be temporary and frustration that it appeared to him Massachusetts was balancing its budget “on the backs of our citizens.”
The Baker administration adopted the rule in part to simplify the logistics for employers by keeping the same system in place, and not requiring them to keep tabs on everyone’s whereabouts during the pandemic.
“I don’t think employers wanted to be in the business of tracking each employee’s every remote move,” McAnneny said.
By not taking up New Hampshire’s challenge, the Supreme Court passed on tackling broader issues of how remote work should be taxed. McAnneny said this could become increasingly important in Massachusetts, whose primary state revenue source is the income tax, if more people adopt a hybrid model — some days in the office and some at home — after the pandemic ends.
Massachusetts will revert back to its earlier approach, which only collected income taxes from people for the days they are physically working in the state. The proximity to five border states means this could become a big issue for the state budget over the long haul, she said.
“There are real implications for income tax collections in Massachusetts should remote working take hold,” McAnneny said.
Jared Walczak, a state tax expert with the Washington, D.C.-based Tax Foundation think tank, said the issue hasn’t gone away just because the Supreme Court didn’t pick up New Hampshire’s lawsuit. For many employees, he said, the viability of remote work rests on resolving how states can use “convenience of the employer” rules, to collect income from telecommuters linked to an office in a separate state from where they live.
Among the unresolved questions: whether two states can tax the same income. Walczak noted that five other states have permanent rules in place that can lead to double taxation.
“The Supreme Court punted on that question for now,” Walczak said, “but other states’ laws are ripe for a challenge.”