On June 28, the Supreme Court denied certiorari in New Hampshire v. Massachusetts. The case, initiated by New Hampshire on behalf of its residents, was filed directly with the Supreme Court as a matter of original jurisdiction. In this case, New Hampshire challenged Massachusetts’ regulation taxing the income of New Hampshire residents who employed in Massachusetts but were working remotely from New Hampshire during the COVID pandemic. Prior to issuing its denial of cert. the Court asked the Solicitor General to issue her opinion on whether the Court should hear the case, and the Solicitor General opined that the Court should deny cert.
The Court’s denial of cert. is without opinion. As such, there is no dicta providing any guidance on how lower courts should rule as this case now reverts to the lower courts for adjudication. Justices Thomas and Alito indicated that they would have granted cert. as they believe the Court should broadly exercise its original jurisdiction in cases where the plaintiff is a State, but they did not indicate whether they agreed with either party’s position.
While the Court has denied cert. as a matter of original jurisdiction, it is likely New Hampshire will now pursue this case through the lower courts and it is possible that this case will one day return to the Supreme Court. Furthermore, individual New Hampshire residents who were waiting to on the disposition of NH v. MA will likely start commencing individual challenges to the constitutionality of Massachusetts’ tax on nonresident income. If either New Hampshire and/or an individual plaintiff is successful in challenging the constitutionality of Massachusetts’ nonresident tax at the 1st Circuit Court, this would cause a split in opinions between the 1st Circuit and the 2nd Circuit’s decision on Huckaby v. N.Y. State Div. of Tax Appeals (2005). If such a split were to occur, the Supreme Court is more likely to hear the case in the future to resolve the split in opinions.
We will continue to monitor developments in the case, and will provide guidance if and when protective refund claims may be warranted.