EDITOR’S NOTE: The original essay posted yesterday used numbers given to the House Ways & Means Committee by the Department of Revenue Administration, which included only taxes collected by that department. It has been updated to include the remaining revenue sources covered by the tax increase triggers. The more complete figures show a tax increase to be likely but less certain than the previous figures suggested. This essay has been revised accordingly.

The House on Thursday rejected a Republican proposal to prevent significant business tax increases that are likely to hit on January 1. Unless legislators act between now and the end of the year, New Hampshire businesses that survive 2020 should prepare to begin paying higher tax rates in 2021. 

The tax increases were built into last year’s state budget compromise. The budget contained triggers that would increase the Business Profits Tax by 2.6% and the Business Enterprise Tax by 12.5% if state revenues fell by at least 6% below official estimates in Fiscal Year 2020.

The state’s 2020 fiscal year closes at the end of this month. The Department of Revenue Administration in late May projected that total state revenues would fall by a little more than 10% below estimates by the end of June for the taxes it collects. A later analysis of total tax and fee revenue monitored by the Department of Administrative Services put all collections at 4.3% below plan at the end of May. 

The state is very close to hitting the tax increase trigger, but it’s not a certainty yet. 

Some legislators don’t seem to understand that if the triggers are met, the increases will take effect at the beginning of next year. We’ve seen some comments that the increases won’t hit businesses until 2022.  

The tax increases will go into effect for “all taxable periods ending on or after December 31, 2021,” the Department of Revenue Administration states in its guidance for businesses. The tax year ending on Dec. 31, 2021 starts on Jan. 1, 2021. 

Unlike individual federal income tax filers, businesses pay estimated state taxes quarterly. So they will begin making their estimated tax payments for the 2021 tax year in the first quarter of 2021, not in April of 2022. 

It’s not certain, but it appears likely that New Hampshire businesses that survive the 2020 lockdown and recession will be hit with significant tax increases in the beginning of next year. The determination of whether the increases happen will not come until the state releases final revenue figures in December.

Legislators who don’t wish to damage New Hampshire employers with another financial hit after the brutal first half of 2020 can remove this threat, and the anxiety it’s causing employers, by repealing the triggers. 

The state’s first vaping tax took effect on January 1, just nine weeks ago. On Thursday, the House approved a bill to more than quadruple it. But the revenue is unlikely to be the bill’s biggest effect.

House Bill 1699 raises the tax on the liquid used for e-cigarette vaping to 40% of the wholesale price. The current rate is 8% for open systems (fill your own) and 30 cents per milliliter for closed systems (cartridges). 

On a 12-8 vote, the House Ways & Means Committee asserted that the increase was justified because of the potential negative health effects of nicotine contained in vaping liquid.

“The nicotine delivered by electronic cigarettes is a toxic addictive chemical derived from the tobacco plant,” Rep. Richard Ames, D-Jaffrey, wrote for the committee. “We know it is addictive. But we don’t yet fully understand the extent of the damage to vital human organs, particularly the lungs and heart, that may be caused by its inhalation through the vaping process. We don’t yet know its effect on the human brain, particularly its effect on the still developing brain of a young person.”

But nicotine researchers have repeatedly pointed out that nicotine should be treated as less harmful than tobacco smoking.

“We need to de-demonize nicotine,” Ann McNeill, professor of tobacco addiction at the Institute of Psychiatry, Psychology and Neuroscience at King’s College London, told Scientific American in 2015.

The reason is that switching from cigarette smoking to vaping produces dramatic reductions in health risks and has been associated with declines in tobacco use.

A study McNeil published in 2018 concluded that the health benefits of switching to e-cigarettes were so profound that e-cigarettes should be prescribed by doctors as smoking-cessation tools. 

“When people smoke tobacco cigarettes, they inhale a lethal mix of 7,000 smoke constituents, 70 of which are known to cause cancer. The constituents in tobacco smoke that cause the harm are either absent or at much lower levels… in e-cigarettes so we are confident that they are substantially less harmful than cigarette smoking,” McNeil told the BBC.

“People smoke for the nicotine — but contrary to what the vast majority believe, nicotine causes little if any of the harm. The toxic smoke is the culprit and is the overwhelming cause of all the tobacco-related disease and death.”

The health argument being used for HB 1669 perpetuates the misconception that there’s little difference in the health risk between tobacco smoking and vaping. 

In fact, there’s a huge difference, and a growing body of research shows that vaping helps smokers quit, leading to improved health outcomes. A study published in the New England Journal of Medicine last year found that e-cigarettes “were more effective for smoking cessation than nicotine-replacement therapy, when both products were accompanied by behavioral support.”

The presence of nicotine in vaping liquid plays a significant role in helping smokers make the switch from tobacco to less-harmful e-cigarettes. A 2016 National Institutes of Health study and a 2015 Society for Research in Nicotine and Tobacco study found that smokers preferred e-cigarettes with higher nicotine content, suggesting that e-cigarettes with higher levels of nicotine helped people quit smoking by offering a satisfying substitute for tobacco. E-cigarettes with lower nicotine levels were less effective. 

Were the state leaving people alone to make their own decisions, the health outcomes would be a matter of individual choice. But in this case legislators are attempting to use the tax code for the express purpose of changing people’s behavior.

That puts the government on the hook for the outcomes. Given the strong link between vaping and smoking cessation, any government effort to discourage vaping would likely lead directly to worse health outcomes for smokers. 

Because the research showing vaping to be an effective smoking cessation method is well publicized, skeptics might conclude that a more powerful motivation for such a tax would be the revenue. (As with nicotine, collecting and spending tax revenue can be habit forming.)

A bill to tax sales of electronics in New Hampshire made news this week, and the bemused media coverage it drew was justified. Yet New Hampshire Union Leader State House Bureau Chief Kevin Landrigan saw a different, and more important, angle.

Landrigan put the bill in context and showed that it was one of several attempts to raise tax revenue through broad-based taxation.

The bigger story was not that a lonely representative proposed a kooky sin tax on consumer electronics (House Bill 1492). It was that a few legislators are trying to lay the groundwork for the eventual imposition of broad-based sales and income taxes.

Rep. Robert Schamberg, D-Wilmot, is the sole sponsor of CACR 17, a constitutional amendment to mandate that any broad-based tax “be enacted solely for the purpose of reducing property taxes by the same amount of revenue as raised by such tax.”

Sen. Jeanne Dietsch, D-Peterborough, is the sole sponsor of Senate Bill 474, to rename the state’s interest and dividends tax the “income tax on interest and dividends.”

Technically, the interest and dividends tax is a tax on income. But a mere technical clarification is not the point of the bill. The point is to undermine resistance to direct state income taxation.

“We need to see ourselves as a state in which half the people do pay income tax, a third pay interest and dividends and about a fifth pay half a billion dollars of income tax a year to Massachusetts to help educate not New Hampshire’s children but others,” she told the Senate Ways and Means Committee on Wednesday.

Each of these bills would serve the same common purpose, which is to lower resistance to broad-based taxes, making it easier to pass large-scale sales and income taxes in the future.

That there were only four sponsors among all three bills shows just how few legislators were willing to spend political capital on a doomed charge up a mountain. Still, the bills also show that hardcore support for sales and income taxes is alive and active in the Legislature.

Some legislators are particularly persistent. Sen. Dietsch last year introduced a payroll tax on income above $132,900 and helpfully clarified precisely what kind of tax it was.

“This is an income tax,” she said.

She gets full marks for determination and perseverance.

The persistence of these legislators raises another question. How would such bills fare were they not destined for the hands of a willing executioner?

The current governor has made clear he will veto a sales or income tax. That dampens enthusiasm in the Legislature for spending energy on such efforts. But one of his potential challengers announced last year that he would not take The Pledge.

The prospect of having an income or sales tax bill signed into law rather than immediately vetoed would be highly likely to change legislators’ calculus. This year, such bills are met with derision. That might not always be the case.

The regional cap-and-tax scheme called the Transportation and Climate Initiative (TCI) is a bad deal for New Hampshire, the initiative organizers’ own projections show.

Modeled on the Regional Greenhouse Gas Initiative, the TCI would cap carbon emissions from transportation sources (vehicles) and force fuel distributors to buy carbon allowances. A declining cap would force distributors to buy more allowances annually. The hope is to compel a switch to non-fossil fuels or to discourage driving by making it uncomfortably expensive.

Naturally, the costs of buying the allowances would be passed on to consumers. In effect, the TCI imposes an additional fossil fuel tax on top of the state and federal gas taxes consumers already pay.

The cost to consumers would be enormous. On December 17th, the TCI organizers released the results of their own analysis of the program’s impact. They project that the carbon allowances would generate revenue of between $1.4 billion and $5.6 billion annually in the 12-state TCI region (plus the District of Columbia), which covers Mid-Atlantic and Northeastern states, including New Hampshire.

That would be a cost of between $14 billion and $56 billion over the decade spanning from 2022-2032.

But the TCI organizers’ own projections show that almost all of the carbon emissions reduction projected during that decade can be attributed to existing trends and not to the TCI scheme.

In August, they projected a baseline reduction in carbon emissions of “roughly 20 percent” without the TCI.

“Total gasoline and diesel consumption and CO2 emissions both fall by roughly 20% from 2022 through 2032 as a result of increased fuel economy in light and heavy-duty vehicles and increased LDV EV shares,” according to the organizers’ own analysis. (LDV EV = light duty vehicle electric vehicle.)

In a presentation released on December 17th, TCI organizers projected that the TCI would cause carbon emissions to fall by approximately 1-5 percentage points above the roughly 20 percent that will occur under existing policies.

The worst-case scenario projection was a 20 percent drop in carbon emissions from 2022-2032, which could be as little as a fraction of a percentage point above the baseline projection. The best-case scenario projection was a 25 percentage point reduction, which would be, at best, 6 percentage points above the baseline.

Understanding the baseline is critical because groups that support the TCI are already claiming it will produce up to a 25 percent reduction in carbon emissions in the region. That is false. Roughly 4/5ths of that reduction will happen anyway, the TCI organizers’ own projections show.

At best, the TCI would reduce carbon emissions of a little more than 5 percent in 10 years — at a cost of $56 billion in that best-case scenario. Without the TCI, carbon emissions are projected to fall by roughy four times that amount. If the TCI’s worst-case scenario occurs, the cost would be $14 billion to achieve an emissions reduction roughly 1/20th the size of what would happen anyway.

The TCI organizers projected that their initiative would cause gas taxes to rise by 5-17 cents per gallon if distributors passed the costs on to consumers (which they would). That seemingly small figure would extract billions of dollars from the economy, giving it to governments to distribute to projects that they favor but that consumers might not. In fact, the whole point is to replace consumer and investor choices with those made by government officials.

The program’s assumed effectiveness relies heavily on the premise that government officials will spend billions of dollars in ways proven to be effective at generating additional carbon reductions. Not only would those projects have to be effective on their own, they would have to be more effective than the choices that otherwise would have been made by business, entrepreneurs and consumers in the absence of the TCI.

Rather than forcibly extract billions of dollars from consumers in yet another heavy-handed attempt to control people’s behavior, governments should scrap this carbon tax scheme and let the market continue to generate solutions.

The business tax cuts that took effect this past January made New Hampshire more economically competitive, as supporters predicted, not less, as opponents suggested.

New Hampshire rose one spot this year to post the sixth-best business tax climate in the nation, according to the Tax Foundation’s 2019 rankings.

No other New England state ranks in the top 30. Maine (33), Massachusetts (36) and Rhode Island (39) are in the 30s, while Vermont (44) and Connecticut (47) are in the bottom ten.

This is exactly what the rate cuts were intended to do.

Many states are attractive to investors and entrepreneurs because of natural or cultural amenities. Massachusetts, with an excellent deep water harbor and numerous top universities, is the perfect example. States that lack big harbors, long coastlines, natural trading centers, etc., have to rely on their own ingenuity to create a more vibrant economic environment.

New Hampshire, relatively remote and mountainous, is at a natural economic disadvantage, relatively speaking. Yet “the New Hampshire Disadvantage” is not a thing. (It’s more of a Vermont thing.)

Instead, we boast of the New Hampshire Advantage, which is the result of policies deliberately crafted to make the state more economically attractive than its remote location would suggest.

Those policies have worked, and they continue to work. With no broad-based tax and, finally, regionally competitive business tax rates, Granite Staters have made their home a more attractive place to do business than either of our also remote northern New England neighbors.

Low business tax rates along with an overall low tax burden is the combination that produces the most business-friendly tax environment, the Tax Foundation report shows. Eight of the top ten states lack at least one broad-based tax, such as an income or a sales tax.

Of the top ten, only the bottom two (Utah, 9, and Indiana 10) have all major taxes. But they differ from many other states in levying those at low rates among a broad base.

With the recent success in lowering business tax rates, lawmakers will find it challenging to further enhance the New Hampshire Advantage through the manipulation of tax rates in the near future.

This suggests that more promising gains can be achieved by working on other impediments to growth and entrepreneurship, such as housing and occupational licensing regulations, overly burdensome business regulations and energy policy.

Economic development tax incentives continue to shrivel under the gaze of the green eye shades.

Recent scandals involving these corporate welfare programs in Maryland and New Jersey offer cautionary tales for lawmakers tempted to join this money-losing game.

On Thursday, an executive admitted to a New Jersey task force that his company’s application for that state’s tax incentive program contained false information. The application stated that the company, Rainforest Distribution, was considering moving to Orangeburg, N.Y.

“At that point in time we had no intention of moving to Orangeburg,” the CEO said.

The application was filled out with the help of a consultant who was familiar with the state’s tax credits. To meet the tax credit criteria, she falsely claimed that the company might move out of state. The state never verified the claim before awarding the business $2.4 million in incentives to move to Bayonne, N.J.

The New Jersey tax credit program has been plagued by scandals, more of which continue to be discovered by reporters. The Philadelphia Inquirer reported this week how weak controls and questionable deals allowed connected investors to make millions on a property sold for about $20 million less than market value. The building, coincidentally, had been built in the 1990s as part of another publicly funded effort to keep GE from moving. (GE moved.)

Meanwhile, in Maryland, a state audit (DOC19) published in September exposed a shocking lack of controls in that state’s numerous tax credit programs, which hand out tens of millions of dollars.

The Maryland Department of Commerce “failed to monitor recipients of its programs for compliance” with applicable laws and regulations, the audit concluded.

For programs that required companies to create certain numbers of jobs, for instance, the department did not check payroll records but took company statements at face value.

In one case, the department awarded $5.5 million for a project that was ineligible because it consisted of “a sale and purchase transaction between related parties.”

Rather than being a valuable economic development tool, state tax incentives create incentives and opportunities for insider dealing and abuse of taxpayer funds.

Companies have incentives to cozy up to elected officials and bureaucrats, and to fudge forms. Public officials famously have less rigorous standards for giving away other people’s money than investors have for giving away their own, which is why these programs are infamous for well-connected businesses getting the better of taxpayers.

Elected officials have incentives to produce headlines and ribbon-cutting ceremonies, not returns on investment.

These latest stories offer additional cautionary tales for legislators.

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.

Dazzled by the allure of Hollywood, some New Hampshire legislators have spent years trying to create a state tax incentive program for the film production industry.  These efforts have died like a B-movie villain year after year, but they return from the grave at the start of each new session.  Research from other states shows that these incentives cost more than they bring in.  They are worse investments than Pauly Shore movies.

After expanding in the first decade of the 20th century, state financial incentives for the film industry suffered a nationwide retreat in the second decade as states abandoned them after seeing the terrible returns.  In this briefing paper, we show that New Hampshire legislators should forget these financial flops and focus instead on maintaining the state’s regime of low taxes for all businesses.

The state film production incentive highlight reel is a disaster:

  • A report from Massachusetts found that from 2006-2015 its program produced just 14 cents of new tax revenue per dollar spent on the program, only 34.3 percent of credit-eligible spending was in-state, and net generated in-state spending was less than the value of the tax credits.
  • A review of Rhode Island’s program concluded that, at best, it lost $1.8 million per year in tax revenue, and that it produced just 94 new film industry jobs in 13 years.
  • Georgia’s program, the most generous in the country, has spent more than $4 billion on production incentives over the last 10 years, but “the return on investment appears to be quite small,”  as each new full-time job in the industry has cost taxpayers at least $119,000.

Read the full the briefing paper here to see why New Hampshire should avoid these financial flops: Bartlett Brief – Film Production Incentives.

SUMMARY: Both the Democratic Legislature and Republican Gov. Chris Sununu included in their budgets an expansion of the state tobacco tax to electronic cigarettes. Bipartisan support for this policy is cause for concern because of its tax and health implications.

New Hampshire has no broad-based sales tax on goods, but it does have “sin” taxes on alcohol and tobacco. Legislators and the governor this year have proposed expanding the sin tax on tobacco to devices known as electronic cigarettes. 

This expansion is pitched not as a tax increase, but as a technical correction to an existing tax. But the measure is more complicated than that. For starters, the tobacco tax exists to discourage the “sin” of tobacco smoking. But e-cigarettes contain no tobacco. 

Current law (RSA 78:1) defines tobacco products as those that contain both tobacco and nicotine. E-cigarettes can discharge nicotine, a tobacco byproduct, but no e-cigarette burns tobacco. To get around that, the revision changes the “and” to “or.” The tobacco tax is thus changed to a tobacco or nicotine tax.

Nicotine is derived primarily from tobacco, but it does occur naturally in some other plants. It is habit-forming, like caffeine, but is not a carcinogen. It does not have the same health impacts as tobacco, and it is not always derived from tobacco. E-cigarette manufacturers are increasingly making their products with synthetic nicotine. 

This new version of the tobacco tax, therefore, applies this sin tax to products that contain no tobacco and increasingly contain nothing derived from tobacco either. 

An exemption that discourages kicking the habit 

Lawmakers recognized that this expansion would tax consumer goods that help smokers quit the habit. The proposed law supposedly avoids this negative effect by excluding from taxation “any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold exclusively for such approved use.”

How many e-cigarettes does this exempt? None. No e-cigarette currently on the U.S. market fits into that tightly worded exclusion. 

Worse, the exclusion ignores studies that have shown electronic cigarettes in general to be effective at helping people quit smoking — more effective, even, than FDA-approved methods.

  • A study published in the New England Journal of Medicine in February found that “e-cigarettes were more effective for smoking cessation than nicotine-replacement therapy, when both products were accompanied by behavioral support.” In that study, e-cigarettes were almost twice as effective than alternatives. The abstinence rate after one year was 18% for people who switched to e-cigarettes and 9.9% for people who chose a different nicotine-replacement product.
  • A study published in 2016 in the British Medical Journal found that “(a)mong those making a quit attempt, use of e-cigarettes as a cessation aid surpassed that of FDA-approved pharmacotherapy.” Long-term e-cigarette users had a 42.4% cessation rate vs. 14.2% for short-term e-cigarette users and 15.6% for those who didn’t use e-cigarettes. The report’s understated conclusion was that “long-term use of e-cigarettes was associated with a higher rate of quitting smoking.”
  • A 2015 study by Public Health England, a government agency similar to our FDA, found that “e-cigarettes are around 95% less harmful than smoking” and “there is no evidence so far that e-cigarettes are acting as a route into smoking for children or non-smokers.” 

Lawmakers acknowledge the value of excluding from taxation products that help people quit smoking. Yet they define those exempted products not by their actual effectiveness, but by their endurance of a lengthy and costly federal regulatory process. (The average FDA approval time for medical devices is seven years and costs millions of dollars, a 2016 review found.) 

With studies showing that e-cigarettes can be more effective than FDA-approved smoking cessation products, this proposed law would encourage smokers to use less-effective smoking-cessation products while discouraging them from using more effective ones. 

E-cigarettes are not actually cigarettes 

This tobacco tax expansion also is based on misclassifying e-cigarettes as cigarettes. 

Under existing state law, an e-cigarette is not a cigarette. To be a cigarette, it must contain tobacco. E-cigarettes are tobacco-free alternatives to cigarettes. Manufacturers market these devices as “cigarettes” because the term is familiar and because the devices can deliver the nicotine fix smokers crave. But they are not tobacco products. 

Changing the definition of “tobacco product” to cover products that contain no tobacco is bad policy and bad precedent. In this case it also would discourage people from transitioning from real cigarettes to much healthier, tobacco-free e-cigarettes. 

Impact on the New Hampshire Advantage

Finally, there is a potentially large impact on small businesses, particularly convenience stores in border towns. 

On July 1, Vermont’s 92% tax on e-cigarettes took effect. Maine’s governor this month signed a law taxing e-cigarettes at 43% of the wholesale price. Massachusetts is considering a 75% vaping excise tax. 

As our neighbors attempt to squeeze revenue out of products proven to help smokers quit, New Hampshire would be wise to remain an island of sanity and sound policy. New Hampshire’s lack of a tax on these products would encourage cross-border sales and further entrench the New Hampshire Advantage. Following our neighbors in adopting a poorly reasoned tax that comes with negative health effects would be a mistake. 

Download a pdf version of this report: JBC 20-21 E-cigarette Tax Brief.

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.