Menu
Tax Notes logo

SCOTUS Review Not Needed With Emergency’s End, Massachusetts Says

Posted on June 16, 2021

Massachusetts is arguing that the sunset of its regulation allowing the state to tax nonresident remote workers underscores its argument that the U.S. Supreme Court need not take up New Hampshire's challenge to the regulation.

In a short supplemental brief in opposition, Massachusetts alerted the Court that its COVID-19 state of emergency ended June 15, as set out in Republican Gov. Charlie Baker’s May 28 executive order, which triggers the sunset of the regulation. The brief notes that the regulation is effective through only 90 days after the end of the emergency.

Massachusetts argues that the regulation's sunset provision “belies New Hampshire’s contention that this expressly time-limited measure will endure ‘indefinitely,’” and “underscores the arguments why this dispute fails to rise to the level of grave importance warranting exercise of the Court’s original jurisdiction.” Any disputes regarding the regulation “should be addressed through the ordinary course of state proceedings in the first instance,” the brief argues.

New Hampshire urged the Court to exercise its original jurisdiction and weigh in after Massachusetts issued the regulation; the reg clarified that nonresidents who previously worked in the state but are working remotely because of the COVID-19 pandemic will continue paying Massachusetts income tax. New Hampshire claimed that the regulation is an attack on its sovereign policy choice not to impose personal income taxes on earned income.

The Court invited Elizabeth B. Prelogar, acting U.S. solicitor general, to express the federal view regarding New Hampshire’s motion for leave to file a bill of complaint. Prelogar argued in a May 25 amicus brief that New Hampshire had not invoked the types of interests that warrant the Court exercising original jurisdiction.

The state countered in a June 7 supplemental brief that the United States' brief minimized the regulation's effects on New Hampshire’s interests and overestimated the likelihood that individual taxpayers would challenge the regulation.

In New Hampshire v. Massachusetts (Original No. 154; No. 22O154), New Hampshire is represented by the state Department of Justice and attorneys from Consovoy McCarthy PLLC.

Copy RID