State of Uncertainty
By Cheryl Fitzgerald
Over the past year, a number of words and phrases have worked themselves into the lexicon, and our everyday usage: pandemic, quarantine, super spreader, and social distancing all make that list. As does the three-word phrase working from home, which quickly morphed into an acronym — WFH.
Indeed, in March 2020, many businesses large and small required or encouraged their employees to work from home as a way to help stop the spread of the coronavirus. At the time, it clearly was intended to be a short-term measure. Nobody could have predicted that, a year later, some of the same employees continue to work from home, whether mandated by their employees or as a way of life now.
However, this has created unintended consequences for businesses and individuals. Employees working in a state other than the company’s home (i.e., their home and business are in different states) could potentially create a need for the business to file in that other state (known as nexus).
From a business perspective, some guidelines have been issued for businesses to follow. Some states have provided relief and have said the presence of an employee working in a state due to shelter-in-place restrictions will not create nexus for tax purposes in that state.
“Employees working in a state other than the company’s home (i.e., their home and business are in different states) could potentially create a need for the business to file in that other state (known as nexus).”
Some states provided a temporary safe harbor or waiver from state withholdings and tax liability for remote work in a different state during the pandemic. And still others have provided that they will not use someone’s relocation during the pandemic as the basis for exceeding the de minimis activity the business can have in the state without it becoming a taxable issue for them.
Massachusetts in particular has provided corporations tax relief in situations in which employees work remotely from Massachusetts due solely to the COVID-19 pandemic to minimize disruption for corporations doing business in Massachusetts. The Bay State has indicated it will not change the intent of whether or not an employee who has started to ‘work’ in Massachusetts because that is his or her home (i.e., a company situated in another state now has an employee physically working in the state of Massachusetts) is subject to Massachusetts corporate tax. These rules are intended to be in place for Massachusetts until 90 days after the state of emergency is lifted.
For employees that had normally worked in Massachusetts, but are now working at home in a different state, Massachusetts has stated that, since this is for pandemic-related circumstances, they will continue to be treated as performing the service in Massachusetts and subject to Massachusetts individual taxes. Most states (but not all) have adopted similar sourcing rules. Most of these rules were put in place for the year 2020. However, some states are still under the same rules and guidelines, and this will continue during 2021.
The intent for most states is to minimize any tax impact for both employees and employers if an employee’s work location has changed solely due to the COVID-19 pandemic.
However, one state has decided the Massachusetts provisions are unfair to its residents. Prior to the pandemic, New Hampshire’s southern border saw a steady stream of workers heading into Massachusetts on a normal workday. With the pandemic and the stay-at-home orders, many of these employees converted to working at their residence in New Hampshire, which does not have an individual income tax.
Therefore, with Massachusetts indicating that these wages were still going to be considered Massachusetts wages and therefore taxable, the governor of New Hampshire felt this was unfair to their residents and has filed a lawsuit in the U.S. Supreme Court over Massachusetts’ “unconstitutional tax grab.”
New Hampshire Gov. Chris Sununu has argued that “Massachusetts cannot balance its budget on the backs of our citizens and punish our workers for working from home to keep themselves, their families, and those around them safe.” This lawsuit was filed in October 2020. Stay tuned.
Remote working becomes even more complicated when employees telecommute in a different state from which they typically work, and this will begin to impact the employee’s eligibility for local leave (i.e., sick leave).
As the pandemic continues, and with some states having set ending dates for some of these relief provisions, employers may continue to have employees who work remotely, either by choice or convenience. The taxability of which state the wages should be taxed in will need to be revisited by employers and employees alike.
Cheryl Fitzgerald, CPA is a senior manager at Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.; (413) 536-8510.