14 states side with New Hampshire in tax suit against Massachusetts

States are lining up against Massachusetts and siding with New Hampshire in the lawsuit over the the Bay State’s policy taxing the income of out-of-state residents telecommuting for Bay State companies amid the pandemic.
The Granite State had sued Massachusetts in October in the ongoing income-tax border battle over a temporary rule that imposes the state’s 5% income tax on employees of Massachusetts companies living and working remotely in other states. New Hampshire Gov. Chris Sununu and his state sued, asking the U.S. Supreme Court to take up the case after Gov. Charlie Baker extended the pandemic-era rule.
New Hampshire continues to petition the Supreme Court to weigh in.
“Massachusetts has radically redefined what constitutes Massachusetts-sourced income in order to tax earnings for work performed entirely outside its borders,” New Hampshire Attorney General Gordon Macdonald fumed earlier this week in the state’s latest submission to the Supreme Court. “This does not maintain the status quo. It upends it.”
And now the Granite State has allies: Ohio, Arkansas, Indiana, Kentucky, Louisiana, Missouri, Nebraska, Oklahoma, Texas, Utah, New Jersey, Connecticut, Hawaii and Iowa all signed amicus briefs backing New Hampshire, insisting that the Supreme Court is the only place where this dispute can be worked out.
Those last four states wrote that several other states have implemented laws like Massachusetts’, and therefore the four who signed the brief “are thus sacrificing billions of dollars in tax revenue on account of these unconstitutional state laws — and this Court is the only forum that can remedy their harms.”
Under the policy, employees who live outside Massachusetts are only taxed for the number of days during week they would have physically commuted into the Bay State for work, which the state Department of Revenue said aligns with prepandemic taxation rules. Nearly 100,000 Granite Staters normally commute to work in Massachusetts, according to a 2017 study.
Massachusetts Attorney General Maura Healey’s office submitted a brief earlier this month defending the state.
Healey said the order “maintained the status quo for personal income tax withholding purposes. Non-resident employees who worked in Massachusetts before the state of emergency would continue to be taxed in the same proportion as during the immediate pre-pandemic period, regardless whether they continued commuting to the Commonwealth to do their work, or performed the same work remotely from home or another location, or varied their location by the day or week.”

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