Sales/Use Tax Protest (Adapted to M&R, CST, and Motor Vehicle Rental — NH Has No General Sales Tax)

PETITION FOR REDETERMINATION — MEALS & ROOMS, COMMUNICATIONS SERVICES, OR MOTOR VEHICLE RENTAL TAX — NEW HAMPSHIRE

TABLE OF CONTENTS

1. Caption and Filing Block
2. Jurisdiction, Timeliness, and Statement of the Case
3. Statement of Facts
4. Grounds for Redetermination
5. Request for Stay of Collection and License Action
6. Request for Hearing
7. Relief Requested
8. Verification
9. Certificate of Service
10. Schedule A — Documents Submitted
11. Schedule B — Reservation of Appeal Rights
12. New Hampshire Practice Notes
13. Sources and References

1. CAPTION AND FILING BLOCK

STATE OF NEW HAMPSHIRE

DEPARTMENT OF REVENUE ADMINISTRATION — HEARINGS BUREAU

109 Pleasant Street, Concord, NH 03301

M&R / CST License No.: [________________________________]

DRA Account / Taxpayer ID: [________________________________]

Notice of Assessment No.: [________________________________]

Date of Notice of Assessment: [__/__/____]

Tax Type (check one):
☐ Meals & Rooms Tax — Meals (RSA 78-A)
☐ Meals & Rooms Tax — Room Occupancy (RSA 78-A)
☐ Motor Vehicle Rental Tax (RSA 78-A)
☐ Communications Services Tax (RSA 82-A)
☐ M&R License Suspension / Revocation / Refusal (RSA 78-A:13)

Tax Period(s) at Issue: [________________________________]

Total Amount in Dispute: $[________________________________] (tax $[____]; interest $[____]; penalty $[____])

PETITION FOR REDETERMINATION PURSUANT TO RSA 21-J:28-b

(or, if RSA 78-A:13 license action: APPEAL FROM COMMISSIONER'S RULING — to be filed within 15 days directly with BTLA or Superior Court)

Petitioner, by and through undersigned counsel, respectfully petitions the Department of Revenue Administration ("Department" or "DRA") for redetermination of the above-referenced Notice of Assessment, and in support states as follows:

2. JURISDICTION, TIMELINESS, AND STATEMENT OF THE CASE

2.1. Petitioner [OPERATOR NAME] is a [corporation / LLC / partnership / sole proprietorship] organized under the laws of [STATE], holding M&R Operator License No. [____] / CST Account No. [____], and operating [# of locations / facilities] in New Hampshire.

2.2. On [DATE], the Department issued a Notice of Assessment under RSA 21-J:28-a and RSA 78-A:15 (or RSA 82-A) for [TAX TYPE] for tax period(s) [YEAR(S) / MONTHS] in the total amount of $[AMOUNT] (the "Assessment").

2.3. Timeliness — General (60 days). This Petition is filed within sixty (60) days of the Notice of Assessment, satisfying RSA 21-J:28-b, I. Time is computed under RSA 80:55.

2.4. Timeliness — License Action (15 days) (complete only if applicable). This appeal is filed within fifteen (15) days after written notice of the commissioner's ruling on [DATE], in compliance with RSA 78-A:13. Petitioner files this appeal directly with [BTLA / Superior Court of __ County] as the statute requires; this filing is provided as courtesy notice to the Department.

2.5. Reservation of appeal rights. Petitioner reserves the right to appeal any adverse Hearings Bureau decision to the BTLA or Superior Court of [COUNTY] County within thirty (30) days of the notice of decision pursuant to RSA 21-J:28-b, IV (and as to CST, RSA 82-A:15), and thereafter directly to the New Hampshire Supreme Court.

3. STATEMENT OF FACTS

3.1. Petitioner operates [describe business — e.g., a 75-room hotel; a chain of restaurants; a motor vehicle rental fleet of __ vehicles; a VoIP service provider serving __ NH subscribers].

3.2. Petitioner is a licensed M&R operator under RSA 78-A:4 / CST retailer under RSA 82-A:4 and has timely filed all required returns for the tax periods at issue.

3.3. For the tax period(s) at issue, Petitioner's filings reflect the following, contrasted with the Department's audit determination:

3.4. On [DATE], the Department's Audit Division initiated an audit and issued [#] Information Document Requests. Petitioner timely produced [BRIEF DESCRIPTION] in compliance with the recordkeeping requirements of RSA 78-A:18 / RSA 82-A and N.H. Code Admin. Rules Rev 700 / Rev 1600.

3.5. On [DATE], the Department issued a Notice of Proposed Adjustment, to which Petitioner responded in writing on [DATE].

3.6. Notwithstanding Petitioner's response, the Department issued the Notice of Assessment that is the subject of this Petition.

4. GROUNDS FOR REDETERMINATION

Ground I — Receipts Improperly Treated as Taxable (Meals & Rooms)

4.1. The Assessment treats $[____] of receipts as taxable "meals" or "occupancy" within the meaning of RSA 78-A:3, when those receipts in fact qualify for one of the statutory exemptions under RSA 78-A:6-c (e.g., grocery-store sales, certain catered functions, qualifying seasonal sales).

4.2. The receipts in question consist of [DESCRIBE] and are documented by [POS records / contracts / supplier invoices] produced as [EXHIBIT __].

Ground II — Improper Inclusion of Non-Taxable Service Charges (M&R)

4.3. The Department improperly included $[____] in mandatory service charges that were segregated and paid in full to employees as wages, and which are exempt from M&R tax under N.H. Code Admin. Rules Rev 702.

Ground III — Motor Vehicle Rental Tax — Long-Term Lease Exemption

4.4. The Department assessed the 8.5% rental tax on $[____] of receipts attributable to leases exceeding [180 / 365] days, which fall outside the statutory definition of a taxable "rental" under RSA 78-A:1.

Ground IV — Communications Services Tax — Federal Preemption / Internet Tax Freedom Act

4.5. The Department assessed CST on charges for [Internet access / data services / non-taxable bundled components] that are exempt under the federal Internet Tax Freedom Act (47 U.S.C. § 151 note) and RSA 82-A:2.

Ground V — Communications Services Tax — Improper Sourcing

4.6. The Department incorrectly sourced charges to New Hampshire under RSA 82-A:4-c. Properly applying the place-of-primary-use rule, the receipts at issue should be sourced to [STATE], where the customer's primary use occurs.

Ground VI — No General Sales / Use Tax — No Wayfair Exposure

4.7. [For out-of-state operators only] New Hampshire imposes no general retail sales tax or compensating use tax. South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018), is therefore inapposite. To the extent the Department asserts collection liability based on economic nexus theories developed under sales-tax regimes in other states, that assertion is contrary to New Hampshire law. Liability under RSA 78-A or RSA 82-A turns on the operator's status as a New Hampshire-registered "operator" or two-way communication "retailer," not on economic-nexus thresholds.

Ground VII — Operator's Commission Improperly Disallowed

4.8. RSA 78-A:7, III entitles a compliant operator to a 3% commission on tax remitted. The Department improperly disallowed the commission of $[____] without statutory basis. The commission may only be denied where the operator fails to meet the conditions of RSA 78-A:7, III or RSA 78-A:8, neither of which applies here.

Ground VIII — Penalties Should Be Abated

4.9. Penalties imposed under RSA 21-J:33 should be abated for reasonable cause, including [reliance on professional advice / good-faith reliance on Department written guidance under RSA 21-J:42 / first-time filing error].

Ground IX — Constitutional Challenge (if applicable)

4.10. The Assessment, as applied, violates the Commerce Clause, the Due Process Clause, and Part I, Article 12 of the New Hampshire Constitution because [DESCRIBE CONSTITUTIONAL DEFECT].

5. REQUEST FOR STAY OF COLLECTION AND LICENSE ACTION

5.1. Stay of collection. Pursuant to RSA 21-J:28-b, the timely filing of this Petition stays enforced collection of the disputed Assessment pending resolution. Petitioner requests that no warrants, levies, or liens issue under RSA 21-J:28 until the Petition is finally resolved.

5.2. License protection. Petitioner is a licensed M&R operator under RSA 78-A:4. Petitioner respectfully requests that no suspension, revocation, or refusal of license under RSA 78-A:11 be initiated based on the disputed Assessment while this Petition is pending. To the extent any such action has issued, Petitioner separately appeals under RSA 78-A:13 within the 15-day window.

5.3. Interest accrual. Petitioner acknowledges that statutory interest under RSA 21-J:28 continues to accrue. Petitioner reserves the right to pay the disputed amount under protest to halt interest while preserving redetermination rights.

6. REQUEST FOR HEARING

6.1. Pursuant to RSA 21-J:28-b, II and RSA 541-A, Petitioner requests an adjudicative hearing before the DRA Hearings Bureau on all factual and legal issues raised herein.

6.2. Petitioner requests [in-person / remote videoconference] hearing at [CONCORD / OTHER LOCATION].

6.3. Petitioner reserves the right to present documentary evidence, lay witness testimony, and expert testimony.

6.4. Estimated hearing time: [____] hours.

7. RELIEF REQUESTED

WHEREFORE, Petitioner respectfully requests that the Department:

• A. Abate the Assessment in full;
• B. In the alternative, redetermine the Assessment to reflect the correct tax liability of $[____];
• C. Restore the operator's commission of $[____] under RSA 78-A:7;
• D. Abate all penalties imposed under RSA 21-J:33;
• E. Refrain from any license action under RSA 78-A:11 pending final disposition of this Petition;
• F. Suspend all collection activity pending final disposition;
• G. Refund any amounts paid in excess of the redetermined liability, with statutory interest pursuant to RSA 21-J:28, II; and
• H. Grant such other and further relief as is just and equitable.

8. VERIFICATION

STATE OF [_______________]

COUNTY OF [_______________]

I, [NAME], being duly sworn, depose and say that I am the [OFFICER TITLE] of Petitioner; that I am authorized to execute this Petition on its behalf; that I have read the foregoing Petition for Redetermination and the schedules attached; and that the statements of fact contained therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[NAME, TITLE]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public / Justice of the Peace

(My Commission Expires: [_______________])

9. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [_______________], 20[____], I filed the foregoing Petition for Redetermination with the New Hampshire Department of Revenue Administration, Hearings Bureau, by [hand delivery / certified U.S. Mail, return receipt requested / GTC electronic filing], addressed to:

NH Department of Revenue Administration
Hearings Bureau
109 Pleasant Street
PO Box 457
Concord, NH 03302-0457

[________________________________]

[ATTORNEY NAME], NH Bar No. [####]

Counsel for Petitioner

[FIRM NAME, ADDRESS, TELEPHONE, EMAIL]

10. SCHEDULE A — DOCUMENTS SUBMITTED

☐ Copy of Notice of Assessment dated [__/__/____]
☐ Copies of M&R / CST returns for tax periods at issue
☐ POS / sales records and reconciliation workpapers
☐ Exemption certificates and supporting documentation
☐ Long-term rental agreements (motor vehicle rental tax)
☐ Sourcing analysis (CST place-of-primary-use)
☐ Audit workpapers and IDR responses
☐ Notice of Proposed Adjustment and Petitioner's response
☐ Operator's commission calculation (RSA 78-A:7)
☐ Power of Attorney (Form DP-2848)
☐ Affidavit of [NAME] dated [__/__/____]
☐ Other: [________________________________]

11. SCHEDULE B — RESERVATION OF APPEAL RIGHTS

11.1. Appeal to BTLA or Superior Court (30 days — general track). Pursuant to RSA 21-J:28-b, IV, Petitioner reserves the right to appeal any adverse Hearings Bureau decision within thirty (30) days to either:

(a) The New Hampshire Board of Tax and Land Appeals, 107 Pleasant Street, Johnson Hall, Concord, NH 03301 (filing fee currently $65); or

(b) The Superior Court of the county in which Petitioner resides or has a place of business.

The forums are mutually exclusive.

11.2. Direct Appeal — License Action (15 days — special M&R track). Pursuant to RSA 78-A:13, an operator aggrieved by a suspension, revocation, or refusal of license may appeal to the BTLA or the Superior Court of the county in which the operator resides or conducts operations within fifteen (15) days after written notice of the commissioner's ruling.

11.3. Communications Services Tax appeals. Per RSA 82-A:15, CST appeals follow the procedures of RSA 21-J, except that appeals from the commissioner's redeterminations may, in some cases, lie to the Superior Court of the county in which the retailer resides or has a place of business.

11.4. Appeal to NH Supreme Court. From a final BTLA decision, RSA 541; from a final Superior Court judgment, N.H. R. Sup. Ct. 7. There is no intermediate appellate court in New Hampshire.

11.5. Related Proceedings. [None / List any pending or prior proceeding involving the same Assessment or tax periods.]

12. NEW HAMPSHIRE PRACTICE NOTES

• No general sales or use tax — no Wayfair exposure. New Hampshire imposes neither a general retail sales tax nor a compensating use tax. South Dakota v. Wayfair, 138 S. Ct. 2080 (2018), and the economic-nexus analysis it ushered in, do not apply to New Hampshire transaction taxes. Out-of-state vendors shipping tangible personal property into New Hampshire have no sales-tax collection obligation.
• Three principal transaction taxes. The Meals & Rooms (Rentals) Tax (RSA 78-A) imposes 8.5% on prepared meals, hotel/lodging occupancy, and motor vehicle rentals. The Communications Services Tax (RSA 82-A) imposes 7% on two-way communications services, including VoIP and prepaid wireless. There is no general retail sales tax.
• Operator/retailer liability is registration-based. Liability under RSA 78-A and RSA 82-A is keyed to status as a licensed operator or registered retailer collecting tax from the customer — not on economic-nexus thresholds.
• Operator's commission. RSA 78-A:7, III provides a 3% commission on M&R tax timely remitted, available only to operators meeting the timely-filing and bonding requirements.
• 60-day petition deadline. RSA 21-J:28-b, I — jurisdictional — runs from date of Notice of Assessment.
• 15-day deadline for license actions. RSA 78-A:13 sets a separate 15-day appeal track for suspension, revocation, or refusal of an operator's license. This appeal goes directly to the BTLA or Superior Court — NOT through the Hearings Bureau.
• Records retention — three years. Operators must retain the M&R Tax Worksheet and supporting records for at least three years from the later of the return due date or the filing date. RSA 78-A:18; N.H. Code Admin. Rules Rev 700. CST retailers are subject to comparable retention duties under RSA 82-A and Rev 1600.
• Internet Tax Freedom Act. The federal Internet Tax Freedom Act (47 U.S.C. § 151 note) preempts state communications-services taxes on Internet access; preserve this defense expressly to avoid waiver.
• Bonding requirements. M&R operators are subject to bonding requirements under RSA 78-A:7-b. License actions arising from bond defaults follow the 15-day track.
• Burden of proof. Notice of Assessment is presumptively valid. The taxpayer bears the burden of showing error by a preponderance of the evidence.
• Confidentiality. All audit and Hearings Bureau materials are confidential under RSA 21-J:14.

13. SOURCES AND REFERENCES

• RSA 21-J (Department of Revenue Administration) — https://gc.nh.gov/rsa/html/I/21-J/21-J-mrg.htm
• RSA 21-J:28-b (Petition for Redetermination) — https://gc.nh.gov/rsa/html/I/21-J/21-J-28-b.htm
• RSA 78-A (Tax on Meals and Rooms / Rentals) — https://gc.nh.gov/rsa/html/V/78-A/78-A-mrg.htm
• RSA 78-A:13 (Appeal — license action; 15 days)
• RSA 78-A:7 (Operator's commission)
• RSA 78-A:18 (Records)
• RSA 82-A (Communications Services Tax) — https://gc.nh.gov/rsa/html/V/82-A/82-A-mrg.htm
• RSA 82-A:15 (Administration; Rulemaking; Proceedings)
• NH DRA Meals & Rentals Tax — https://www.revenue.nh.gov/taxes-glance/meals-rooms-rentals-tax
• NH DRA Meals & Rentals Tax FAQ — https://www.revenue.nh.gov/resource-center/frequently-asked-questions/meals-rooms-rentals-tax
• NH DRA Communications Services Tax FAQ — https://www.revenue.nh.gov/faq/communication-services.htm
• NH DRA Hearings Bureau FAQ — https://www.revenue.nh.gov/faq/hearings.htm
• NH Board of Tax and Land Appeals — https://www.btla.nh.gov/
• BTLA State Tax Jurisdiction — https://www.btla.nh.gov/jurisdiction/state-tax
• N.H. Code Admin. Rules Rev 700 (M&R) — https://gc.nh.gov/rules/state_agencies/rev700.html
• N.H. Code Admin. Rules Rev 1600 (CST)
• South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018) — inapposite to NH (no general sales tax)
• Internet Tax Freedom Act, 47 U.S.C. § 151 note (Pub. L. 105-277)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. New Hampshire imposes no general sales or use tax; South Dakota v. Wayfair does not create NH collection obligations. The Interest & Dividends Tax was repealed effective January 1, 2025. An attorney licensed in New Hampshire must review and customize this petition before filing. Verify all citations at gencourt.state.nh.us, revenue.nh.gov, and btla.nh.gov before use.