As organizations continue to navigate the post-pandemic work environment, determining where employees will work is a major consideration. On one hand, businesses are eager to get back to business as usual, but many organizations have determined that remote working — either on a hybrid or complete basis — has enhanced productivity and employee morale.

As employers and employees negotiate and codify their new work-from-home policies, it’s important to recognize cross-border state and local tax issues that may lead to tax surprises for both sides.

Take, as an illustration, a company that has an office in Rhode Island, where everyone worked onsite pre-pandemic but can now work from home on part-time bases. Previously, this employer would have only needed to withhold Rhode Island income taxes for its employees. However, because some of its employees work partly from their homes in Massachusetts, the employer now has to register with the Massachusetts tax authority to withhold Massachusetts taxes as well.

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Additionally, the state unemployment taxes the employer pays on its employees may also have to shift from Rhode Island to Massachusetts. Unlike income taxes that may be owed to the two states, unemployment taxes are generally paid to only one state. Which state obtains the unemployment tax is often based on a variety of factors; businesses will need to determine which state gets the unemployment tax for each employee.

Some states employ what is commonly referred to as the “convenience of the employer rule” or “employee telecommuter rule.” During a defined pandemic period, some states employed this rule only on a temporary basis. For example, Massachusetts instituted a telecommuter rule through September 2021, which provided that if an employee worked from home in another state, but their employer’s location was in Massachusetts, then Massachusetts can still tax that employee as if they physically worked in Massachusetts.

Other states, such as New York, use this rule regardless of the pandemic situation. For example, a Connecticut resident working for a New York employer from her Connecticut residence for her own convenience could become subject to taxation in Connecticut and New York on all her wages. New York used this rule before and during the height of the pandemic years and continues to enforce it.

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The employee telecommuter rule creates responsibilities for both the employer (who needs to withhold the appropriate state taxes) and the employee (who needs to file income tax returns with the applicable states).

Companies also need to consider whether having a remote employee creates nexus for the company in the state, requiring the filing of tax returns. For the company based in Rhode Island, having an employee working from Massachusetts establishes a connection to Massachusetts, and as such the company would likely need to register and start collecting sales tax in Massachusetts.

Although a company may not be aware of this resulting requirement, if the company gets audited, the tax burden shifts to the business (rather than the consumer), and interest and penalties can be imposed on the business for failure to collect the tax.

Besides a sales tax collection obligation, the remote employee may also create an income tax obligation imposed on the business and its owners. That is, this employee may not only create a Massachusetts sales tax collection obligation but may now also cost the company or its owners of pass-through entities (such as S corporations and partnerships) additional income taxes that have to be paid to Massachusetts.

Identify where your employees are working in order to proactively confront the payroll tax, sales tax, and income tax obligations that remote employees create. While some of these issues may be temporary, as more organizations (and more employees) continue to consider work-from-home approaches, understanding the financial implications associated with such policies is key to help mitigate the risk of unfortunate surprises at tax time.

For more information on taxes related to work-from-home-policies in New England, contact Tony Switajewski at tony.switajewski@CLAconnect.com or 860-561-6810. For more information on CliftonLarsonAllen LLP, visit CLAconnect.com.

This article originally appeared on The Patriot Ledger: employee telecommuter rule may lead to tax surprises for remote work