Cigarette smokers and flavored tobacco scavengers from Massachusetts produced a surge of New Hampshire tobacco tax revenue that almost single-handedly prevented a business tax increase, preliminary, unaudited state figures suggest.

State tobacco tax collections rose significantly in March, April and June, putting tobacco tax revenue $14.5 million (7.3%) higher than budgeted and $13.7 million (6.9%) higher than last year, according to the Department of Administrative Services’ June revenue report. 

Revenue from the federal tobacco settlement was $2.9 million above plan, for a total tobacco-related increase over budget projections of $17.4 million. Preliminary, cash figures suggest that the state missed triggering an automatic business tax hike by $15.35 million. 

In the last state budget, lawmakers included a provision that would trigger automatic business tax hikes if state general and education fund revenue fell at least 6% below projections. Based on June’s cash figures, revenues appear to have fallen 5.4% below projections. These are preliminary figures, however, and are subject to revision when adjustments are made based on the state’s later, more thorough accounting of the year’s revenues.

If these figures hold, business owners could reasonably thank smokers and Massachusetts lawmakers for helping to prevent those automatic tax hikes. Tobacco tax revenue was 34.6% above budget in June, 34.9% above budget in April, and 10% above budget in March.

Department of Revenue Administration staff say those increases are most likely caused by smokers stocking up for the first lockdown and in anticipation of a second lockdown, combined with Massachusetts residents crossing the border to buy flavored tobacco. 

Massachusetts banned the sale of flavored tobacco products, including flavored snuff and chewing tobacco, effective June 1. In addition to a cigarette sales surge, state tobacco tax data show a large increase in smokeless tobacco sales, particularly snuff, in June. 

Sales of what the state classifies as “other tobacco products,” meaning everything excluding cigarettes and premium cigars, have spiked in recent months, surpassing 7% of all tobacco sales in June. 

A sizable portion of that is likely related to the Massachusetts ban on flavored tobacco products. In addition to flavored smokeless tobacco, the ban also includes menthol and other flavored cigarettes as well as flavored vaping products. 

New Hampshire budget writers expected to supplement state revenues this year by applying the tobacco tax to electronic cigarettes. Last year, legislators expanded the tobacco tax to cover e-cigarettes, even though there is no tobacco in e-cigarettes. 

The tax went into effect on January 1, but it has produced less revenue than expected. By the end of the state’s 2020 fiscal year on June 30, taxes on e-cigarettes had generated just $1.2 million. 

Legislators budgeted $5.7 million in revenue from e-cigarette sales for Fiscal Year 2021, which began on July 1. Based on the first six months of collections this year (covering the final half of Fiscal Year 2020), that projection seems unrealistic. Collections so far suggest that the state could expect to bring in less than half what it projected to take from e-cigarette sales in FY 2021.  

In a surprise motion, the Legislature’s Fiscal Committee voted 7-3 along party lines Monday to move $26 million in federal Coronavirus Relief Fund money to the state budget to pay for ongoing programs. But federal law does not allow such a transfer, leaving members confused about what the vote accomplished and whether it was legal. 

The Coronavirus Relief Fund included in the Cares Act provides $150 billion to states to help fight the virus. New Hampshire has so far received $625 million from the fund. That money is restricted for use in fighting the coronavirus. 

The IRS has issued clear guidance on how the funds are to be spent. It states:

“The CARES Act requires that the payments from the Coronavirus Relief Fund only be used to cover expenses that—

  1. are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID–19);
  2. were not accounted for in the budget most recently approved as of March 27, 2020 (the date of enactment of the CARES Act) for the State or government; and
  3. were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.”

Those three conditions make clear that the federal money may not be used to fund programs that were part of any state budget approved before March 27, 2020.  

Legislative Budget Assistant Mike Kane read that guidance to the Fiscal Committee during its Monday meeting, which took place over the phone. 

Nonetheless, the 7-member Democratic majority voted to move $26,050,000 in federal Coronavirus Relief Fund money to eight existing budget line items. 

In an attempt to navigate around the obvious legal obstacle, the committee’s motion contained the clause “to the extent U.S. Treasury guidance permits.” 

That clause prevents the money from being transferred unless Treasury issues new guidance authorizing budget backfilling.

After Republican members questioned the committee’s legal authority to move the funds, Kane said that under existing federal guidance “there’s not much that the committee can do at this point.”

“I would recommend that legal counsel should be sought,” he added.

He further suggested that any such transfer of federal CARES Act funds might have to be advisory only. 

Sen. Cindy Rosenwald, the motion’s sponsor, said she believed the clause requiring updated Treasury guidance made the motion advisory. 

But because the motion commits the committee to transferring the funds pending federal authorization, it is not clear that the motion is really advisory in nature. If Washington eventually allows the transfer, the vote on Monday presumably would make it automatic.

Sen. Lou D’Allesandro, D-Manchester, acknowledged that the committee didn’t know whether Washington would allow the transfer to happen.

“We now have the money, and if indeed it meets the requirements set forth by the federal government, we can again restore to the public items that we thought they needed at the time so that there’s no disruption in service,” he said.

“If that proves inaccurate, then we have to make a change,” he later added.

Though the move was legally dubious, from a public policy standpoint filling budget holes with relief money has merit.

States are incurring massive revenue losses as a result of the economic contraction caused by business closures and stay-home orders. Gov. Chris Sununu estimated that New Hampshire’s budget could face $500 million in cuts in the next fiscal year, on top of a few hundred million by June of this year.

The Josiah Bartlett Center for Public Policy last week joined other free-market state think tanks in urging Congress to remove those restrictions so states can backfill their budgets in just the way the Fiscal Committee voted to do on Monday.  (CARES Act Coalition Letter[1][1])

But until Washington acts, states cannot use Coronavirus Relief Fund money to fund programs that existed before March 27 of this year. 

Further clouding the issue, Sen. Rosenwald’s motion to move the $26 million was not on the Fiscal Committee’s agenda for Monday’s meeting. It surprised Republican members of the committee, who protested that the vote should be postponed until the public had a chance to weigh in and members had a chance to read the motion. 

No paper copy had been provided to committee members. The text was read aloud during the meeting. 

“We do not have a copy of that motion,” Rep. Lynne Ober, R-Hudson, protested. “I just think that it’s totally inappropriate to be voting on today.”

Rep. Erin Hennessey, R-Littleton, moved to table motion until the public had a chance to see it and guidance from Treasury allowed it. Her motion failed on a 7-3 party-line vote.

On public policy, New Hampshire should always beat Vermont, as a matter of principle. That goes double for the handling of money. The state that sends a self-proclaimed “socialist” to the U.S. Senate should never get to say it’s more responsible with a dollar.

New Hampshire has bragging rights here. The Granite State is 12th in the Mercatus Center’s ranking of states by fiscal condition. Maine is 34th, Vermont 39th, Massachusetts 47th. 

And yet there’s one area where New Hampshire and Vermont are uncomfortably close: the Pew Center’s national ranking of the best-funded state retirement systems. Both states are down in the 30s, with less than 70 percent of their pension liabilities funded. 

So Vermont officials might have watched approvingly on Wednesday when the House advanced a bill that would worsen the financial position of the New Hampshire Retirement System. 

Instead of edging the State Employee Retirement System closer to the point at which it might some day have enough money to pay what the state owes its retirees, House Bill 1205 would edge us slightly in the opposite direction.

The state’s retirement system ended the 2019 fiscal year 64.8% funded. The system hasn’t been above 70% funded since 2004. Vermont has two state retirement systems, one for state employees, which is just over 70% funded, and a separate system for teachers, which is funded at about 54%. Pew’s latest ranking (using 2017 data), puts Vermont at 64.3% funded.

By contrast, Maine is a Northern New England lighthouse beacon of frugality, with 82% of its obligations funded. 

HB 1205 would nudge New Hampshire downward by eliminating an existing 10% reduction in retiree benefits that kicks in for Group 1 employees (general government employees and teachers) at age 65. The bill would cost the retirement system $37 million, according to its fiscal note. It would cause a slight (less than half a percentage point) increase in government contributions to the system (that is, taxpayer contributions).

When the mandatory cut was passed into law in 1988, 65 was the Social Security retirement age. The age has since inched up to between 66 and 67 years for retirees born in 1938 or later, but state law has kept the pension reduction pegged to age 65.

As a technical update, one can see the logic behind HB 1205. But that logic doesn’t generate its own money. The bill includes no funding to pay for its increased cost.

It’s a $37 million “giveaway,” Rep. Carol McGuire said when speaking against the bill. 

McGuire wasn’t able to convince her colleagues to vote against the bill. But she did succeed in tabling a bigger one, HB 1341. That bill contains a lot of changes, the largest being that it would raise the contribution rate for a large chunk of Group II employees by changing the formula for calculating their pensions. Municipalities would be hit with a large, mandatory increase in their retirement contributions. 

The bill as originally drafted would have added $142 million in unfunded liabilities to the State Retirement System. An amended version on the House floor on Wednesday had no fiscal note, but legislators say it would cost less than the original. 

Supporters tried and failed to remove the bill from the table on Wednesday, so it remains in limbo for now.

Though New Hampshire’s general frugality has kept the state from issuing the sorts of lavish unfunded promises to state employees that have made jokes of the retirement systems in Connecticut, Illinois and New Jersey, most state pension funds are more fully funded than ours. 

Recent returns indicate that loading the system with more unfunded promises would be particularly risky this year. The retirement system’s rate of return on investment was only 5.7% last year, below the assumed 7.25% and well below the previous year’s 8.9%. That translates into a $229 million (32%) drop in investment income from 2018 to 2019.

The retirement system has a plan to move toward full funding over the next two decades, but it relies on hitting investment revenue targets. Consistently lower market returns, like last year’s, and adding large unfunded liabilities would throw off the plan.

Through a combination of one-time expenditures and increases in baseline formulas, the new state budget produces significant increases in education funding over the next two years. It is no wonder that state officials hailed the compromise as a windfall for public schools.

The budget was built upon an education funding compromise that dramatically reduced the budget’s structural deficit by shifting more than $60 million in recurring education spending to one-time spending.

But the other part of that compromise built into the budget several increases in baseline education spending that will require additional revenues in the future.

As part of the deal, increases in fiscal capacity disparity aid and free-and-reduced-price meal aid expire at the end of the 2021 fiscal year rather than continue indefinitely. Those bumps in aid are financed with $62.5 million in one-time money from the state’s budget surplus.

But other education aid increases are built into the baseline budget.

The budget changes the formula for kindergarten aid to count all kindergarteners as full-day rather than half-day students. That change will cost about $9.5 million a year above what Keno revenues had previously covered, according to the Office of Legislative Budget Assistant.

The budget also eliminates the formula by which stabilization grants were being gradually reduced. Stabilization grants are supplemental funds school districts receive as compensation for student enrollment declines. That is, schools get state funds to “stabilize” their budgets as they lose students (and the state adequacy aid that comes with those students).

The stabilization grants had been scheduled to decline by four percent of the 2012 grant level each fiscal year. The compromise budget restores them to 100 percent, permanently.

That change in state law increases 2020-2021 education spending by $56 million and adds about $6.2 million a year to the state budget going forward, according to the Office of Legislative Budget Assistant.

Finally, the budget increases the base per-pupil adequacy grant from $3,363 to $3,708. This increase was already scheduled under previous law, so it is not a new change. But it does drive state education spending higher.

Figures from the Office of Legislative Budget Assistant show that, including one-time and recurring expenditures, the budget spends $196 million more on education from FY19 through FY21, a 19.9% increase in appropriations over the 2019 budget.

Of that, $41 million is added for FY 2019, and $155 million for fiscal years 2020-21.

The line-item increase in total budgeted state education spending from FY19 to FY21 weighs in at 9.6%.

Adequate education aid accounts for the largest portion of the added spending. It rises by $111.9 million over the FY 2019 numbers approved in the previous budget.

Those are substantial spending increases, celebrated by both the Republican governor and Democratic Legislature. Yet we can’t help but suspect that political attack ads next year will frame things somewhat differently.

Throughout 2019’s prolonged budget debate, two competing claims dominated the dispute over business tax rates. This week’s budget deal confirms conclusively which side was correct.

For months, Democratic leaders in the Legislature claimed that their budget — the one Gov. Chris Sununu vetoed — “stabilized” business tax rates. The budget did not raise taxes, they said repeatedly, but maintained existing tax rates and only eliminated tax cuts that were scheduled to take place in the future.

Republican Gov. Chris Sununu countered by accusing legislators of raising both the 2019 business tax rates and the 2021 rates.

The budget compromise Gov. Sununu signed this week reveals the truth. Unlike the vetoed state budget, this one actually keeps business tax rates the same for 2019 and 2020. It confirms that legislative leaders were incorrect when they claimed that their previous budget did not raise taxes.

On Jan. 1, 2019, the Business Profits Tax rate dropped from 7.9 percent to 7.7 percent and the Business Enterprise Tax rate dropped from 0.675 percent to 0.6 percent.

The budget that Gov. Sununu vetoed raised those rates back to their 2018 levels of 7.9 percent and 0.75 percent. It did so immediately, not in the future. It further eliminated the reductions (to 7.5 percent and 0.5 percent) scheduled to take place in 2021.

The governor insisted that the 2019 tax rates remain intact. Legislators insisted that rates return to their 2018 levels. There seemed to be no middle ground. Until this week.

How did this budget bring the two sides to agreement?

It did so by keeping this year’s tax rates intact and using revenue targets to trigger future changes.

The compromise budget keeps this year’s rates at 7.7 percent and 0.6 percent. Legislative leaders do not call this a tax cut. That is an admission that their previous budget did, in fact, raise business tax rates in 2019, not just in the future.

Under the compromise, if total general and education fund revenue for the current state fiscal year neither rises nor falls by 6 percent or more, those tax rates remain in place through the next fiscal year.

That is, the rates remain stable if revenue remains stable. At last, the budget “stabilizes” business tax revenue.

However, if total revenue rises by 6 percent or more, business tax rates will fall to the rates they were already scheduled to hit in 2021: 7.5 percent and 0.5 percent.

If total revenue falls by 6 percent or more, business tax rates will automatically snap back to their 2018 levels of 7.9 percent and 0.675 percent. This is another admission that the vetoed budget raised, rather than stabilized, business tax rates.

In essence, each side is betting that the economy will turn in their political favor in the next year.

In this deal, Democrats seem to be taking the bigger risk. To get what they have spent the better part of this year advocating, they need the economy to tank.

They have insisted that “out-of-state corporations” are unfairly undertaxed and that the state desperately needs more revenue. To achieve both, they have advocated higher business tax rates. Yet they get those higher rates only if state revenue comes in more than $155.8 million below expectations.

(Revenues have fallen slightly so far this fiscal year, but not at a rate that would trigger the tax increase.)

Gov. Sununu, on the other hand, gets two additional years of stable, relatively low tax rates (2019 and 2020). In the third year, he gets either a continuation of those rates or an additional tax cut unless state revenues quickly crater.

State budgets are like the Grinch’s Santa sack. They’re huge, unwieldy, and overstuffed with giveaways and surprises. Their contents are a mystery to anyone who doesn’t have hours to crawl inside and unwrap every little package, which is pretty much every normal person. 

We’re not normal (we like reading budgets), so we’ve done the unpacking for you.

Here are five interesting things we’ve found in the Legislature’s budget that have been overlooked or underreported in the news.

  1. The budget imposes immediate business tax increases. We’ve written about this before, but news reports continue to get it wrong. The budget does not merely repeal rate cuts scheduled to take place two years from now. It also raises this year’s Business Profits Tax and Business Enterprise Tax rates by 2.6% an 12.5% respectively. We have more on the budget’s tax increases here.
  1. Budget writers created a dangerous structural budget deficit. Legislators shifted much of the current budget surplus into the 2020-21 budget, then spent that one-time money on recurring line items. As a result, expenditures for fiscal years 20-21 exceed revenues by $134 million. That creates a hole in the ongoing budget that future legislators will have to fill. We have more on that here.
  1. From this fiscal year through the end of 2021, the budget spends almost $500 million more than Gov. Chris Sununu proposed spending. You can see our outline of the differences here.  
  1. The budget eliminates the existing prohibition on spending state taxpayer money on abortions. This repeal is located in House Bill 2 on Page 142, line 294, which states that the 2017 session law “prohibiting reproductive health facilities from using state funds to provide abortion services, is repealed.” 
  1. The budget moves occupational licensing revenue into the General Fund. When a barber, tattoo artist, nurse or other applicant for a state license pays the required fee, the money is kept in a segregated “office of professional licensure and certification fund.” That fund is to be used only to finance the state’s licensing regime. The budget changes the law to require that any licensing funds left in the account at the end of each fiscal year be moved to the General Fund. This would lend support to any licensed professional’s complaint that state fees are too high.

These are only a few of the newsworthy items we found that have received little or no media coverage. We’ve found more, which we will share in future posts.

If you want to do your own digging through the dark, cavernous goodie bag, knock yourself out. You can read HB 2, the budget “trailer bill” that contains the legal changes, here. 

The Legislature’s final budget spends $497.3 million more than Gov. Chris Sununu’s budget in General and Education Trust Fund appropriations in the 2019 and 2020-21 fiscal years.

In this report, we examine the three major differences between these competing budget visions: total General and Education Trust Fund appropriations, business tax rates, and disposition of the current-year surplus.

Read the full report here: Budget Visions Legislature vs Governor Final.

Some supporters of the Legislature’s 2020-2021 budget are making inaccurate claims about its business tax provisions.

1. They claim that the budget’s tax increases apply only to rate reductions that are scheduled to take place in the future, and not to current-year tax rates.

2. They claim that the existing business tax rates and the lower rates scheduled to take effect in 2021 are tax cuts for “out-of-state corporations.” This brief shows how those claims are incorrect. 

Read our brief here: Bartlett Brief 20-21 Budget Biz Taxes.

The budgets passed by the New Hampshire House and Senate propose significant spending increases that are unsustainable without tax increases. Unsurprisingly, both contain large tax increases to cover the costs of their higher spending. By contrast, Gov. Chris Sununu’s budget keeps spending to levels that are sustainable without raising taxes.

A Josiah Bartlett Center comparison of the governor’s budget proposal to the budgets that passed the House and Senate shows that the House would spend $320 million more than the governor in Fiscal Year 2020-21 General and Education Fund appropriations, while the Senate would spend $296 million more than the governor.

The governor’s budget would increase General and Education Trust Fund spending by 3.5% in FY20-21, compared to 10.8% for the House budget and 8.7% for the Senate budget.

Before counting the paid Family and Medical Leave program, the House budget proposes $268.1 million in tax increases for FY20-21, while the Senate budget proposes $158.6 million in tax increases over the biennium.

All three budgets included additional revenue from sports betting and from expanding the tobacco tax to cover electronic cigarettes.

The House and Senate budgets then add $168.6 million in payroll taxes to cover the cost of a state-run paid family and medical leave program, which is not part of the governor’s budget.

The full budget brief is available in pdf form here: Budget Visions 2020-21 House, Senate, Gov

 

The Senate this week joined the House passing tax increases on New Hampshire businesses. Some reports give the impression that the House and Senate budgets would not raise taxes, but would repeal future tax cuts. Here we explain why that is not correct and the budgets raise business taxes, including the rates that businesses will pay this year.

Under current law, the business profits tax rate is 7.7 percent and the business enterprise tax rate is 0.6 percent for “taxable periods” that end “on or after December 31, 2019.” 

Both the House and Senate budgets would repeal those rates and replace them with rates of 7.9 percent and 0.675 percent, respectively. 

The budgets also would repeal the existing state law that lowers those rates further, to 7.5 percent and 0.5 percent, for taxable periods that end on or after Dec. 31, 2021.

Understanding how businesses pay taxes

What does it mean when state law declares that a tax rate applies to a “taxable period ending on or after December 31, 2019?” 

It does not mean that the tax rate takes effect on January 1, 2020.

A “taxable period” is not a calendar year. State law (RSA 77-A:1, IV) defines “taxable period” as a business’ fiscal year for federal income tax purposes. 

So a taxable period “ending on or after December 31, 2019” is a business’ fiscal year that starts in 2019 and ends on or after Dec. 31, 2019. 

A business will start to pay those tax rates in 2020, then, right? 

No. 

Businesses’ fiscal years do not always correspond with the calendar year. They can begin or end on any day of the year. 

Plus, businesses are required to pay taxes quarterly, not annually. 

Under New Hampshire law, any business with an estimated tax liability of more than $200 is required to estimate what its next year’s tax bill will be, and then submit 25 percent of that payment each quarter. 

Here is how that works.

In 2019, employers begin paying quarterly taxes for fiscal years that end “on or after December 31, 2019.”

For example, a business with a fiscal year that ends April 30, 2019, will start a new fiscal year on May 1, 2019. That new fiscal year will end April. 30, 2020. 

So starting on May 1, 2019, that company will be taxed at the rate in effect for “taxable periods ending on or after December 31, 2019.” It will make payments at that rate every four months throughout its tax year.

Under current law, companies with fiscal years starting May 1, July 1, and Oct. 1, 2019, will be making business profits tax payments at the 7.7 percent rate and business enterprise tax payments at the 0.6 percent rate this year. 

That’s why the House and Senate budgets do not just affect future tax rates that employers are not yet paying. The budgets would raise those fiscal year 2019 tax rates to 7.9 percent and 0.675 percent. 

So the House and Senate budgets would not merely not repeal future tax cuts, as is being reported. They would raise taxes on businesses this year.   

A tax increase is a tax increase

Furthermore, it is worth noting that “repealing a future tax cut” also is a tax increase. Those tax cuts are set in existing law. They apply automatically. To replace them with a higher rate is to raise taxes.