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Tax-free NH Fights Back: Governor Announces Strategy in Sales Tax Case

Commissioner Caswell, left; Gov. Sununu; Attorney General Gordon MacDonald

Governor Chris Sununu will ask the Executive Council next month to approve a proclamation declaring a special session this summer, calling back lawmakers to consider legislation to protect Granite State businesses from improper attempts by other states to force them to collect sales and use taxes.

Sununu was joined by Senate President Chuck Morse; House Speaker Gene Chandler; Attorney General Gordon MacDonald; Commissioners Taylor Caswell and Lindsey Stepp, and business owners from around the state in announcing New Hampshire’s plan to respond to the US Supreme Court’s decision last week in the case of South Dakota v. Wayfair, Inc.

Pursuant to the authority granted to the Governor and Executive Council in Part 2, Article 50 of the New Hampshire Constitution, Sununu will ask the Council to approve a proclamation declaring a special legislative session at its meeting July 11.

The Governor’s office is working with legislative leadership and the Attorney General’s office to craft legislation. While final details are still being worked out, New Hampshire will erect every possible and constitutionally permissible legal and procedural hurdle to prevent other states from forcing our businesses to collect sales and use taxes. Some of the provisions the state will enact:

  • Any out of state taxing authority seeking to audit or impose tax collection obligations on a New Hampshire business will be required to notify the New Hampshire Department of Justice;
  • Before proceeding, the out of state taxing authority will be required to receive a written determination, from the New Hampshire Department of Justice, that the authority’s statutes provide certain protections and meet strict requirements;
  • These protections and requirements will include a safe harbor for a certain amount of sales, a prohibition against retroactive enforcement, a safe harbor for small businesses, and other strict requirements. In addition, an out of state taxing authority will have to show that its laws will not impose an unconstitutional burden on New Hampshire businesses;
  • The New Hampshire Department of Justice will be empowered to file an expedited suit to block any attempt to impose  tax collection obligations undertaken in violation of this new law.

“With this proposal, we will send a message to every out of state taxing jurisdiction and authority. If you try to come into our state and force our businesses to collect a sales tax in manner that violates our laws or the United States Constitution, you will be in for the fight of your life,” Sununu said. “Live free or die is not just a slogan on a license plate. It is the very essence of who we are. Our State Constitution says that ‘the people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State.’ Working together, we will do everything in our power to prevent other States from violating this principle by imposing arcane sales and use tax obligations on New Hampshire businesses.”

The US Supreme Court decision last week in the Wayfair case, said Attorney General Gordon MacDonald displaces 50 years of precedent.

“My office stands ready to carefully monitor the development of the law in the wake of this decision, and to assist the Governor and legislative leaders in crafting legislation that seeks to protect New Hampshire’s citizens and businesses,” he said.

Business and Economic Affairs Commissioner Taylor Caswell said, “The Governor’s action today should send a clear message to the NH business community and beyond that this state will aggressively defend our pro-growth low-tax economy.”

Senate President Chuck Morse stated, “New Hampshire’s freedom from an income or sales tax is something we take great pride in because it makes our state competitive for businesses and supports a quality of life our citizens are accustomed to. The South Dakota v Wayfair decision attempts to strip our state of this distinction and may impose burdensome tax obligations on our businesses and our citizens. This decision does not recognize how sales tax-free states like New Hampshire have drawn many citizens to live, work and start a business here for that very reason. I support Governor Sununu’s plan to fight back against this decision because of the untold effect it would have on our state’s economy and small businesses. Swift action must be taken to defend our business’ freedom from collecting taxes for other states in which they have no physical presence. I look forward to working with our Senate and House colleagues to establish these protections in statue as soon as possible.”

This proposal will provide the maximum protection possible under state and federal law.

 

 

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