Document Type



Taxation-State and Local


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. The constitutional rule that a state tax may not discriminate against interstate commerce, which ensures nonresident taxpayers are treated the same as residents, acts as a safeguard against taxation without representation. Resident taxpayers indirectly serve the tax interests of nonresidents at the ballot box because their interests are aligned.

This safeguard breaks down over jurisdictional issues, however. 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 vote to protect their interests, nor can they rely on resident voters to do so.

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.