New Hampshire v. Massachusetts: Taxation Without Representation?

Abstract

In this article, Professor Pomp details the dispute behind New Hampshire’s pending motion in the U.S. Supreme Court.

The issue is whether Massachusetts may constitutionally subject remote-working nonresidents to its income tax when, prior to the pandemic, those workers commuted in-state.

It is beyond dispute that nonresidents who earn their income within a state can be taxed by the state. Professor Pomp raises the underlying jurisprudential issue of why nonresidents can be taxed when they cannot vote in the source state. This answer lies partly in the constitutional rule that a state tax may not discriminate against interstate commerce, which covers commuters. Resident taxpayers indirectly serve the tax interests of nonresidents at the ballot box because their interests are aligned. Residents ensure that the income tax rates are acceptable, as are the rules for defining the tax base, Hence, when residents pursue their own self-interests, they are serving as proxies and protecting the interests of nonresidents.

This safeguard breaks down however, when the issue is one of nexus and jurisdiction. Residents benefit from expansive views of nexus; the more taxes siphoned from nonresidents in other states, the less taxes residents need to pay. In this context, nonresidents cannot rely on resident voters protecting their interests, which no longer are aligned.

New Hampshire is asking the Supreme Court to hear the case at its discretion under the original jurisdiction clause of the U.S. Constitution. Analogous cases have involved state conflicts over the use of interstate lakes and rivers. A “tax base,” like a body of water, is finite; when one state draws down the resource, less is available for other states.

New Hampshire’s motion, in light of the substantial increase in remote work, invites the Court to modernize the rules on the interstate collection of personal income taxes.

Keywords: state tax, remote work, nexus, interstate commerce