Fairness dictates that New Hampshire workers who’ve been cut off by COVID-19 from their offices in Massachusetts should not have to pay income tax on work they do at home. If fortune has blessed them so that they may keep their jobs while teleworking from their kitchens or living rooms, the Bay State’s revenue collectors should not reach over state lines to dip into their paychecks.
They’re not working in Massachusetts. They shouldn’t be taxed as though they are.
It’s only fair, especially in light of the fact Massachusetts did not previously tax the same people for days they spent teleworking. If someone living in Londonderry spent every Friday working from home instead of commuting to the office in Lawrence, they could exempt their income tax payments to Massachusetts accordingly.
This changed last April when Gov. Charlie Baker signed an emergency order signaling plans to levy Massachusetts income taxes not based on where people are actually working since the pandemic closed offices everywhere but instead based on their pre-pandemic habits. Even if they’re now working out of state, the Massachusetts Department of Revenue conveniently intends to collect.
The only real emergency here is the hit to Massachusetts coffers if it abides by its previous policy, one that was grounded in legal precedent about who must pay a state’s income tax. So, instead of letting fairness and precedent be a guide — Baker and tax officials in Massachusetts were unwavering — it will be up to a court to determine whether such an aggressive policy is constitutional.
New Hampshire wants the U.S. Supreme Court to settle the dispute. While the high court generally isn’t the place where lawsuits get a first hearing, exceptions are sometimes made for arguments between states. Hopefully the court acts accordingly, and swiftly, and rules in favor of what’s legal and fair in this case.
New Hampshire’s complaint, filed in October, criticizes Baker’s order as an attack on its sovereignty and an affront to the “New Hampshire Advantage” — that is, the attraction of living and working in a state free from income and sales tax.
“Upending decades of consistent practice, Massachusetts now taxes income earned entirely outside its borders,” states the complaint filed by Attorney General Gordon MacDonald. “Through its unprecedented action, Massachusetts has unilaterally imposed an income tax within New Hampshire that New Hampshire, in its sovereign discretion, has deliberately chosen not to impose.”
The real attack is not so much on the Granite State’s vaunted “advantage,” however, as it is on individual workers who no longer drive on Massachusetts roads to get to their offices, and no longer spend their days physically working in Massachusetts.
It’s not entirely clear how many are affected. Before the pandemic, more than 84,000 New Hampshire workers held jobs in Massachusetts, according to the U.S. Census Bureau. Presumably some have lost or left that work. And only a fraction have the opportunity to work remotely.
Mind you, this is not just some quarrel among grumpy New England neighbors in need of a better fence. (Earlier this month, Massachusetts argued to the Supreme Court that it shouldn’t get involved.) Five other states also reach over their borders to tax non-residents working remotely: Pennsylvania, New York, Nebraska, Arkansas and Delaware. Fourteen states are so offended by this practice, as are an even greater number of taxpayer groups, that they’re urged the Supreme Court to get involved.
Many of those states levy income taxes of their own, and they give discounts for income taxes their residents pay elsewhere. That means billions of dollars are at play in this argument between Massachusetts and New Hampshire, according to a brief filed on behalf of four states, including Connecticut, this past week. They cite a “staggering consequence” to their “fiscal well-being” if states like Massachusetts are allowed to follow taxpayers to their mailboxes in different jurisdictions.
This dispute is about as straightforward as tax cases get. While it remains to be seen if the Supreme Court will get involved, hopefully the justices will chose to bring clarity to the constitutional limits on where states may levy taxes before April 15 arrives.