CHAPTER 78-E PROTECTION OF PRIVATE CUSTOMER INFORMATION AND RIGHTS OF NEW HAMPSHIRE REMOTE SELLERS IN CONNECTION WITH CERTAIN FOREIGN SALES AND USE TAXES
Section 78-E:6
78-E:6 Administration; Enforcement. –
I. Upon receipt of a written notice of a foreign taxing authority's intent to request private customer information from, conduct an examination of, or impose sales and use tax collection obligations on one or more New Hampshire remote sellers, the department of justice shall determine whether the laws of the foreign taxing jurisdiction meet the requirements of the United States and New Hampshire Constitutions and, if they do, whether they can be applied to the New Hampshire remote seller or sellers based on the reasons provided in the required written notice. In conducting the review required by this paragraph, the department of justice shall consider all laws and regulations existing as of the time of the review, and all applicable principles of the United States and New Hampshire Constitutions, including but not limited to: whether or not the foreign taxing jurisdiction's laws provide a satisfactory safe harbor for New Hampshire remote sellers that conduct only limited business within the jurisdiction; whether or not the laws ensure that no obligation to remit sales or use tax may be applied retroactively; whether or not the foreign taxing jurisdiction has adopted the Streamlined Sales and Use Tax Agreement or otherwise adopted laws that are substantially compliant with each of the requirements set forth in the Streamlined Sales and Use Tax Agreement; whether or not the foreign taxing jurisdiction's laws provide for deduction, reimbursement, or exemption for the cost of compliance of the New Hampshire remote seller in collecting, accounting, and remitting the foreign taxing jurisdiction's sales or use taxes; whether or not the laws require substantial compliance and enforcement of the entirety of such laws, including whether or not the laws include a use tax and the requirement that persons report and pay use tax liability; whether or not the foreign taxing jurisdiction or authority is actively seeking to enforce its own requirement that persons report and pay use tax liability; and whether or not the application of such laws in practice are fairly related to the tangible benefits provided by such state to the New Hampshire remote seller.
II. Whenever the department of justice has reason to believe that a foreign taxing jurisdiction or authority or any other person has taken, is taking, or is threatening to take any tax assessment or collection action against any New Hampshire remote seller, and the department further determines that said action constitutes an undue burden on interstate commerce within the meaning of Article 1, Section 8, Clause 3 of the United States Constitution, or that said action violates any other provision of the United States Constitution or New Hampshire constitution or of any other applicable state or federal law, including but not limited to the notice requirements in RSA 78-E:4, the department may bring a civil action in the name of the state against such person to restrain by temporary, preliminary, or permanent injunction the said action and may petition the court for an order of restitution of money or property to any person or class of persons injured thereby. The department of justice may further bring a declaratory judgment action against any foreign taxing authority or jurisdiction to establish that the proposed assertion of an obligation to collect and remit sales tax by one or more New Hampshire remote sellers violates applicable state or federal law. The action may be brought in any court of competent jurisdiction. Nothing in this chapter shall be construed as creating a cause of action against the state of New Hampshire or any of its officials or employees. Any action taken by the department of justice pursuant to the provisions of this chapter shall not be read to preclude a New Hampshire remote seller from bringing its own action under paragraph IV, or upon any other legal basis, and nothing in this chapter shall be construed to require or permit the department of justice to act as legal counsel or provide legal advice to a New Hampshire remote seller or any other person to whom the department of justice is not otherwise authorized by law to provide legal counsel.
III. Any information, testimony, or documentary material obtained under the authority of this section shall be used only for one or more of the following purposes:
(a) In connection with investigations instituted under this chapter or for the prosecution of legal proceedings instituted under this chapter or any other provision of New Hampshire law; and
(b) In connection with any formal or informal program of or request for information exchange between the department of justice and any other local, state, or federal agency. However, no information or material obtained or used pursuant to the authority of this section shall be released publicly by any governmental agency except in connection with the prosecution of legal proceedings instituted under this chapter or any other provision of New Hampshire law. In addition, any information, testimony, or documentary material obtained or used pursuant to a protective order shall not be exchanged or released, as provided herein, publicly except in compliance with such protective order.
IV. A New Hampshire remote seller who is subject to collection, audit, or examination by a foreign taxing authority in connection with alleged sales tax collection or remission obligations may file an action in any court of competent jurisdiction seeking immediate, emergency relief to enjoin any collection, audit, or examination attempt that is occurring or will occur in violation of rights provided by this chapter or of any other provision of constitutional or statutory law. Any New Hampshire remote seller who prevails in such an action shall be entitled to recover any damages suffered as a result of the violation of rights provided by this chapter and reasonable attorney fees and costs incurred in maintaining the action. Nothing in this paragraph is intended to limit a New Hampshire remote seller's judicial recourse to enforcement of this chapter.