George Isaacson is a nationally known tax attorney who appeared before the U.S. Supreme Court in the Wayfair interstate sales tax case. He wrote this analysis of the U.S. Supreme Court’s refusal to hear New Hampshire’s challenge of the Massachusetts commuter tax scheme for New Hampshire Journal.


The U.S. Supreme Court’s denial of New Hampshire’s motion for leave to file its complaint against Massachusetts is disappointing.

The Court’s order was issued without comment, but Justices Thomas and Alito would have granted New Hampshire’s motion and permitted the case to go to a full hearing. It is important to note that in deciding not to hear the case, the Supreme Court did not rule on the underlying constitutional issues. Instead, the Court only decided not to exercise its so-called “original jurisdiction” to resolve a dispute between two states without the matter first being heard by lower courts.

The Supreme Court’s refusal to take this case is not surprising. In prior decisions, the Court has stated that it will exercise its original jurisdiction only “sparingly.” While Justices Thomas and Alito believed that the dispute over Massachusetts imposing its income tax on New Hampshire residents who previously worked in Massachusetts, but, by order of the Massachusetts government or their employers, were ordered to work from home, was an appropriate case for the Court to hear without any lower court proceedings, the majority of Justices clearly disagreed.

It appears that the Court took its cue from the amicus brief filed by the Acting Solicitor General on behalf of the United States. In that brief, the argument was made that the constitutional issues should, in the first instance, be addressed through an appeal of an income tax assessment issued by the Massachusetts Department of Revenue.

The Acting Solicitor General wrote as follows:

[I]ndividuals who are subject to Massachusetts income tax may file an abatement request with the Massachusetts Commissioner of Revenue, seek further review from the state’s Appellate Tax Board, and, if unsatisfied, obtain judicial review in state court. Indeed, those individuals would be the most natural plaintiffs because they are directly affected by the challenged tax policy. Following review in Massachusetts administrative and judicial tribunals, such an individual [i.e., a New Hampshire resident] could present to this [U.S. Supreme] Court the same legal issues raised here. … As a general matter, one State should not lightly be permitted to demand relief for its residents from another State when the individual residents themselves have an available means of redress.

So, the constitutional objections to Massachusetts tax authorities reaching across the border to tax New Hampshire residents who are working remotely from their homes at the insistence of Massachusetts health officials due to the pandemic remains unresolved. A test case brought by a New Hampshire resident would have a long path through the administrative appeal process and the courts of the Commonwealth, and those forums may not be receptive to a Granite State resident’s challenge to the long arm of Massachusetts tax policy.

However, the final ruling by a Massachusetts court, including the Massachusetts Supreme Judicial Court, would then be subject to discretionary review by the U.S. Supreme Court, which, at that juncture, would clearly be presented with the constitutional merits of the case and not the issue of the Court’s jurisdiction.

Indeed, such a tax case involving a novel and important constitutional issue which affects a large number of persons is the very type of case the Supreme Court is likely to decide to hear.