§ 78-D:1 — Findings and Purpose

The general court finds:
I. Numerous states impose a sales tax on goods and services purchased by customers within their boundaries, and also impose an excise known as a "use tax" on use, storage, or consumption of goods and services purchased by their residents from a business located out of the taxing state. Many of these states require their residents to report and pay the use tax directly to the state.
II. The state of New Hampshire does not impose a sales tax on customers making purchases of goods and services in New Hampshire, nor on goods and services purchased by its residents out of state for use, storage, or consumption in New Hampshire. New Hampshire businesses are not required by law to determine where a person intends to use, store, or consume goods or services purchased within the state.
III. The state of New Hampshire is a year-round destination visited by hundreds of thousands of persons from numerous states that impose sales and use tax on their own residents. A requirement on businesses located in New Hampshire to determine, collect, and remit such taxes could be, in many instances, unreasonably burdensome given the variation in rates and exemptions of these taxes in other states, the magnitude of sales to residents of foreign taxing states, and the absence of uniform administrative systems to determine, collect, and remit such taxes. Unlike other states, New Hampshire has not adopted the Streamlined Sales and Use Tax Agreement because of its sovereign decision not to impose such taxes.
IV. New Hampshire has a strong governmental interest in protecting the privacy of an individual's personal information that may be used to facilitate the sale of goods and services within this state, while the general court can identify no governmental interest in requiring its businesses to make an affirmative inquiry concerning the location of the intended use of a good or service, or whether such good or service will be used by the purchaser or by another person.
V. The United States Supreme Court has unequivocally determined that only businesses that have an adequate physical presence in a state imposing a sales and use tax may be subject to a requirement to assess, collect, and remit a sales and use tax on goods and services delivered by the seller into the taxing state. New Hampshire businesses that have no physical presence in such a foreign state, such as through retail or wholesale locations, or sales personnel, have no obligation to assess, collect, or remit a sales tax with respect to purchases by foreign state residents.
VI. The imposition by other states of obligations to collect use tax imposed on residents with respect to purchases occurring within this state results in fundamental discrimination between businesses selling items within the foreign state (who are subject only to the sales tax administrative burdens) and businesses selling similar items within this state (who are subject to potentially highly burdensome and arbitrary administrative requirements to determine, in some manner, whether a customer will store, use, or consume such items within such foreign state even before the customer has in fact stored, used, or consumed the item within such foreign state). This discriminatory burden violates federal constitutional protections that create an area of trade that is free from interference by state laws and prohibit state laws that discriminate against interstate commerce by providing a direct commercial advantage to local businesses.
VII. Any foreign state that attempts to require an out-of-state business to collect a use tax imposed on citizens of such foreign state without first seeking actively to enforce such use tax against its own citizens shall have carefully developed information and documentation that demonstrates conclusively that a business knew, based on information provided by a customer, that such customer has stored, consumed, or used a purchased item within such foreign state. Any attempt by such foreign state to charge the business with use tax liability without satisfying these prior requirements is the effective equivalent of imposing a direct tax on the out-of-state business with respect to out-of-state transactions in a manner that unlawfully discriminates against such out-of-state transactions in violation of the Commerce Clause of the United States Constitution.

Legislative History

2009, 169:1, eff. July 9, 2009.