STARTING AND OPERATING A BUSINESS IN NEW HAMPSHIRE



Copyright © 2008, Michael D. Jenkins
All Rights Reserved


CHAPTER 18

BACK TO STATE CHAPTERS INDEX

NOTE: This is only one of 18 chapters of the electronic book, "Starting and Operating a Business in New Hampshire." For information on ordering the entire book and the front-end "Small Business Advisor" software, click here.



CONTENTS OF THIS CHAPTER:


I. INTRODUCTION

II. LEGAL ENTITIES

(a) In General
(b) Sole Proprietorships
(c) Partnerships
(d) Corporations
(e) S Corporations
(f) Limited Liability Companies (LLC's)
(g) New Hampshire Securities Laws
III. BUSINESS ACQUISITIONS
(a) In General
(b) Bulk Sale Laws
(c) Tax Releases
(d) Unemployment Tax Rating of Seller
IV. NEW HAMPSHIRE TAXES AND OTHER GENERAL REQUIREMENTS
(a) In General
(b) State and Local Licensing
(c) Income and Franchise Taxes
(d) Sales and Use Tax
(e) Real and Personal Property Taxes
(f) Other Business Taxes
(g) Trade Names
V. EMPLOYER REQUIREMENTS IF YOU HAVE EMPLOYEES
(a) Employer Registration and Withholding
(b) Unemployment and Other State Payroll Taxes
(c) Workers' Compensation Insurance Coverage
(d) State Wage and Hour Laws
(e) State Occupational Safety and Health Laws
(f) Other Miscellaneous State Labor Laws
VI. STATE SOURCES OF HELP AND INFORMATION
(a) Key State Agencies Contact Information
(b) Small Business Development Centers
(c) Internet Sites
(d) Financing Sources


I. INTRODUCTION

New Hampshire has an unusual and very favorable tax structure under which businesses operate, with some of the lowest per capita taxes in the nation.

Unlike most states, New Hampshire imposes no income tax as such on individuals (except for a tax on investment income), no franchise tax on corporations, and no general sales or use tax. Instead, a business profits tax is imposed on the net income of all types of business entities, including corporations, partnerships, LLC's and sole proprietorships. Also, a business enterprise tax, somewhat like a capital stock or franchise tax, is imposed on all businesses, but companies pay only the higher of the profits tax or the enterprise tax, in effect. Also, some very small businesses are exempt from one or both of those taxes.

New Hampshire's very low taxes, a rarity among Northeastern states, has made it an attractive place for individuals to raise families or retire, and its rapid growth has led to an excellent business climate for starting large or small businesses. In particular, large numbers of people have fled Massachusetts ("Taxachusetts") and its high taxes in recent years, to move to New Hampshire, where they pay no sales taxes and no income tax except on their business or investment income. Only one other state, Alaska, has neither an income tax nor a sales tax.

Among other attractions, the state of New Hampshire has the nation's second-highest standard of living, and the second-lowest crime rate. It also has by far the lowest per capita state tax burden of any state, according to a recent U.S. Census Bureau report on state tax collections. In contrast, nearby Connecticut and Massachusetts had the highest and fifth-highest per capita total state tax burdens, with Massachusetts having the highest income tax collections per capita in the nation. A 2005 study by the Tax Foundation showed New Hampshire as having the second-lowest tax burden, as a percentage of per capita income, second only to Alaska, while neighboring Maine had the highest tax burden computed on that basis.

New Hampshire has adopted a limited liability company (LLC) law, and a limited liability partnership (LLP) law, so that businesses operating in New Hampshire in LLC or LLP form may obtain the advantages of limited liability, without incorporating or becoming subject to federal corporate taxation, generally, although all but the smallest businesses are taxed in the same manner for state purposes under the New Hampshire business profits tax and business enterprise tax, regardless of the type of legal entity adopted, or even if no legal entity is established (sole proprietorships).

At present, the state's economy is fairly robust, in terms of the level of unemployment and other economic measures. For example, in May, 2008, the state's unemployment rate was a low 4%, but was up slightly from an exceptionally low 3.6% a year earlier. This still compares favorably to a national unemployment rate of 5.5% for the same month.

To view the latest federal Bureau of Labor Statistics unemployment rate data for New Hampshire or any other state, visit the BLS website.

UPDATE NOTE:
On April 26, 2007, the New Hampshire legislature enacted a civil unions law, giving gay couples the right to enter into civil unions and be granted most of the rights of married couples under state law, including various New Hampshire tax laws. Governor John Lynch signed the bill into law on May 31, 2007, effective January 1, 2008.


II. LEGAL ENTITIES -- FILING FEES AND REPORTING REQUIREMENTS.

(a) In General. A business that operates in New Hampshire can do so as a sole proprietorship, a general or a limited partnership, a corporation, or a limited liability company (LLC). However, unlike most other states, New Hampshire does not recognize S corporation tax status for income tax (business profits tax) purposes -- S corporations are subject to the same New Hampshire business profits taxes as other corporations and unincorporated businesses, and dividends from an S corporation are fully taxable to recipients, for purposes of the New Hampshire tax on dividends and interest. Similarly, unincorporated business are all taxed on their income at the entity level (including sole proprietorships, where there is no business legal entity) and distributions from partnerships or LLC's may be taxable to the owners as dividends in some cases under New Hampshire's unique tax laws.

New Hampshire also provides for limited liability partnerships, in which no partner is liable for certain debts of the partnership, somewhat like a corporation or LLC, but with fewer legal formalities than are required for either a corporation or an LLC.

Each of the above entities is discussed below, along with the basic requirements for forming such an entity and any general ongoing (non-tax) reporting requirements that are applicable to it. The tax treatment of each form of legal entity is discussed in Section IV below.

Note that, unlike many other states, the costs of setting up a corporation or other limited liability entity in New Hampshire are very low, under law changes enacted in 2004 that set the fees charged to establish such entities in the state (or to register out-of-state entities) at reduced levels, in order to encourage and facilitate the creation of small businesses in New Hampshire.

(b) Sole Proprietorships. In general, sole proprietorships in New Hampshire can be established with no formalities. However, as discussed in Section IV(b), it will generally be necessary to obtain one or more local business licenses from cities or counties in which you operate and, in some cases, state licenses, as well.

Businesses that serve meals or rent rooms or vehicles and which are subject to the meals and rentals (lodging and auto rentals) tax must obtain a license from the state, for $5.00. Licenses expire on June 30 of odd-numbered years, and must be renewed at such time for $5.00. To apply for such a license and provide a bank account debit authorization to the state, use Form CD-3, which is available from the Department of Revenue Administration. Unlike most states, New Hampshire does not require most businesses to register for a sales tax permit, since there is no general sales tax in New Hampshire.

Unlike other states, New Hampshire requires most sole proprietorships to file annual business profits tax and business enterprise tax returns. However, the individual owner of a sole proprietorship does not have to file any state income tax return unless he or she has more than $2,400 ($4,800 if filing jointly) of interest and dividend income. The state income tax is only imposed on such investment income.

See Section IV(c) for information on the New Hampshire income tax on investment income and filing requirements for individuals, as well a description of the business profits tax and business enterprise tax, both of which apply to most businesses, including sole proprietorships.

Unless subject to special taxes, such as the meals and rentals tax, your sole proprietorship will not generally be required to register with the state before beginning to do business, unless you are using a fictitious name, such as "John Smith Enterprises" rather than just using your name, such as "John Smith." See Section IV(g) for more information on registering fictitious names or trade names used by your business.

Doing business as a sole proprietor in New Hampshire is generally somewhat simpler than operating as any other kind of business legal entity. As a sole proprietor, if you have no employees, you are not required to pay any unemployment taxes, withhold any federal or state income tax from wages, nor obtain workers' compensation coverage for yourself.

(c) Partnerships. New Hampshire's partnership laws allow creation of either a general partnership, in which all partners are liable for the debts of the business, or a limited partnership, in which only the general partners are liable for debts, while the liability of limited partners is limited to the amount they have invested, usually. State law also allows for the creation of a limited liability partnership, in which no partner has personal liability (subject to certain exceptions).

As discussed in Section IV(b), it will generally be necessary to obtain one or more local business licenses from cities or counties in which you operate and, in some cases, state licenses, for any type of partnership, including general or limited partnerships, or limited liability partnerships.

Unlike most states, which do not tax the income of a partnership at the partnership level, New Hampshire imposes the Business Profits Tax, based on income, directly on the partnership. However, the partners, as individuals, are not subject to state tax on the income of the partnership, as New Hampshire has no income tax on individuals, except on dividends and interest. (But partnership distributions may be taxable as dividends in some cases.)

A partnership may also be subject to the Business Enterprise Tax, as described in Section IV(c), and if it has more than $2,400 of dividend and interest income, it, rather than its partners, will also be subject to the state income tax on such investment income.

Partnerships are required to file annual Business Profits Tax and Business Enterprise Tax returns with the state. For details on New Hampshire partnership tax return filing requirements, see Section IV(c).

A partnership agreement, for any type of partnership, should spell out in considerable detail such matters as the following:

  • How much and what kind of property will each partner contribute to the partnership?
  • What value will be placed on the contributed property?
  • How will profits and losses be divided among the partners?
  • How will gain or loss be allocated for tax purposes on property contributed to the partnership by one or more of the partners, where such property has a tax basis significantly greater or less than its agreed value?
  • Will the partnership make an Internal Revenue Code Section 754 election to make special basis adjustments to assets when a partner buys a partnership interest or dies, or when the partnership distributes assets to a partner? (Such an election can be very beneficial for the partner in question or for his or her estate, but once made, the election cannot be revoked without IRS approval. Where a number of events requiring the special basis adjustments occur over a period of years, the tax accounting for the partnership can eventually become grotesquely complicated and extremely difficult to do correctly, unless the partnership is able to retain some exceptionally bright accounting talent to make the necessary tax accounting adjustments.)
  • When and how will profits be withdrawn from the partnership?
  • How will certain partners be compensated for their services to the partnership (if at all)?
  • How will partners be compensated for making capital available to the partnership?
  • How will changes in ownership of interests in the partnership be handled? This issue is of particular importance in New Hampshire, since partnership distributions may be taxable as dividends to the partners if the interests in the partnership are freely transferable.
  • When will the partnership terminate its existence?
  • How will the assets and liabilities of the partnership be handled when the partnership is terminated?

GENERAL PARTNERSHIPS

As a rule, general partnerships can be formed to do business in the Granite State with no formalities, although it is highly advisable to have a written partnership agreement. However, as is discussed in Section IV(b), it will generally be necessary for a partnership to obtain one or more local business licenses from cities or counties in which you operate and, in some cases, state licenses, as well. In addition, a partnership or any other business with employees will generally be required to register for state unemployment tax, as discussed in Section V(b), as well as obtaining workers' compensation insurance coverage for the employees, as noted in Section V(c).

Every general partnership, like many sole proprietorships (but unlike other business entities), is required to register its business name with the secretary of state as a trade name. See Section IV(g) for more information on registering the business name of a general partnership.

LIMITED PARTNERSHIPS

A limited partnership, in which there is at least one general partner (who is liable for partnership debts) and at least one limited partner (who is not liable for partnership debts), may also be formed under New Hampshire law. Unlike a general partnership, a limited partnership must generally have a written partnership agreement, and must file with the secretary of state a New Hampshire Limited Partnership Application, Form LP-1, together with a filing fee of $50 and two copies of a certificate of limited partnership. Foreign limited partnerships must register on Form FLP-1, Application for Registration of Foreign Limited Partnership, before being allowed to do business in New Hampshire and must also pay a registration fee of $50.

All business registrations by domestic or foreign limited partnerships must also include a Form SRA addendum, a statement that you have complied with the New Hampshire securities laws in connection with any issuance of securities in the state, plus an additional filing fee of $50, as discussed in Section II(g).

For more information on limited partnership filing requirements, see the contact information for the offices of the New Hampshire Secretary of State, listed in Section VI(a).

LIMITED LIABILITY PARTNERSHIPS

Limited liability partnerships (LLP's) are a relatively new form of partnership permitted under the laws of New Hampshire. Like an LLC, an LLP provides limited liability for its owners, while retaining the tax advantages of a partnership for federal income tax purposes (but not for New Hampshire tax purposes). However, unlike an LLC, an LLP typically operates like a regular partnership, and is not required to file articles of organization. A general partnership can achieve a significant degree of limited liability by simply registering the partnership with the state as an LLP.

However, an LLP does not generally offer the same degree of liability protection as a corporation or LLC, since, under New Hampshire law, an LLP only protects a partner from liabilities arising from the misconduct or negligence of another partner or employee of the partnership. Thus, LLP's are mainly utilized by professional partnerships, as New Hampshire's LLP law provides somewhat less liability protection to the partners in an LLP than the laws of most other states.

To form an LLP in New Hampshire, you must register on Form LLP-1 and pay a filing fee of $50 to the secretary of state. Foreign LLP's, those created under the laws of another state, must also register with the secretary of state and pay a fee of $50.

All business registrations by domestic or foreign LLP's must also include a Form SRA addendum, a statement that you have complied with the New Hampshire securities laws in connection with any issuance of securities in the state, plus an additional filing fee of $50, as discussed in Section II(g).

Every domestic and foreign LLP must also pay an annual fee to the secretary of state in the amount of $100.

For more information on LLP registration and reporting requirements, see the contact information for the offices of the secretary of state, listed in Section VI(a).

Note that one potential drawback of LLP's, if you will do business in other states besides New Hampshire, is that you may not enjoy limited liability with regard to creditors of the LLP if you do business in some such states. Some states, like California and New York, only recognize certain types of professional partnerships as LLP's. Such other states may simply treat your LLP like an ordinary general partnership, with no limitation of liability.

(d) Corporations. To form a corporation in New Hampshire, you must file articles of incorporation with the New Hampshire Secretary of State and pay a fee of $50. A foreign corporation (one formed under the laws of another state or a foreign country), must obtain a certificate of authority before it may legally conduct business in New Hampshire, by filing an application for a certificate of authority and paying a filing fee of $50.

All business registrations by domestic or foreign corporations must also include a Form SRA addendum, a statement that you have complied with the New Hampshire securities laws in connection with any issuance of securities in the state, plus an additional filing fee of $50, as discussed in Section II(g).

For more information on filing articles of incorporation or applying for a certificate of authority to do business in New Hampshire, see the contact information for the offices of the secretary of state, listed in Section VI(a).

In addition, once your corporation is formed, it will be required to file annual reports each year between January 1 and April 1 and pay a filing fee of $100 with the annual report each year. Failure to file this report on a timely basis could result in suspension or revocation of your corporation's charter, in addition to a late filing penalty fee of $50.

In addition to paying federal income taxes on its income, a corporation that does business in New Hampshire must also file New Hampshire Business Profits Tax returns with the state. See Section IV(c) for a discussion of state Business Profits Tax rates and tax return filing requirements.

Corporations that do business in New Hampshire are also subject to a corporate franchise tax, called the Business Enterprise Tax. Unlike franchise taxes in other states, this tax applies equally to corporations and unincorporated businesses. However, due to tax credits, a business pays, in effect, only the higher of the Business Profits Tax or the Business Enterprise Tax, not both.

For tax forms and more information on Business Profits Tax and Business Enterprise taxes in New Hampshire, see the contact information for the offices of the New Hampshire Department of Revenue Administration, listed in Section VI(a).

(e) S Corporations. An S corporation is simply a regular corporation that has elected, for federal or state income tax purposes, or for both, to be taxed somewhat like a partnership, with its taxable income, losses, and tax credits flowing through to its owners, who must report such income, losses, or credits on their individual federal income tax returns.

Unlike most states, New Hampshire does not treat S corporations differently from regular corporations (C corporations) for state income tax purposes. In fact, corporations (including S corporations) are treated the same as unincorporated businesses, generally, for both income (New Hampshire Business Profits Tax) and franchise (Business Enterprise Tax) tax purposes. While dividends paid by an S corporation are usually non-taxable for federal income tax purposes, such dividends are subject to the New Hampshire tax on investment income.

However, since there is no general income tax on individuals in New Hampshire, the undistributed income of an S corporation is not taxable to the individual shareholders of the S corporation.

PLANNING POINT:
Because New Hampshire's income tax on investment income applies to S corporation dividends, S corporations are somewhat less attractive as business legal entities in New Hampshire, if the S corporation pays out a large percentage of its profits as dividends (which is often the case for S corporations, since their dividend distributions are usually not taxable for federal income tax purposes, or in most other states).

For tax return filing requirements for S corporations and other corporations in New Hampshire, see Section IV(c).

(f) Limited Liability Companies. New Hampshire, like every other state in the U.S., has adopted a limited liability company (LLC) law. Thus, in addition to the traditional choices of a sole proprietorship, partnership, or corporation, a business that operates in New Hampshire may also choose to operate in the form of an LLC. In most states, LLC's are very attractive entities for many small businesses, in that they offer the same protection as a corporation from creditors for debts of the business, while offering much of the flexibility plus the flow-through tax treatment of a partnership for federal tax purposes, although this is not the case for New Hampshire tax purposes, since New Hampshire treats all business entities essentially the same for income tax (Business Profits Tax) and franchise tax (Business Enterprise Tax) purposes.

New Hampshire state law now allows formation of one-owner LLC's, which qualify for treatment as sole proprietorships ("disregarded entities") for federal tax purposes. However, one-owner LLC's are not disregarded for New Hampshire state tax purposes.

See Section IV(c) for a discussion of the tax treatment of LLC's under New Hampshire tax laws.

To form an LLC under the laws of New Hampshire, one or more persons must file a certificate of formation, Form LLC-1, with the secretary of state, which must be accompanied by a filing fee of $50. Foreign LLC's, those formed under the laws of another state, must obtain a certificate of authority to do business in New Hampshire, by filing an application for a certificate of authority, Form FLLC-1, with the secretary of state and paying a filing fee of $50.

All business registrations by domestic or foreign LLC's must also include a Form SRA addendum, a statement that you have complied with the New Hampshire securities laws in connection with any issuance of securities in the state, plus an additional filing fee of $50, as discussed in Section II(g).

Unlike a number of states, New Hampshire allows professional service firms (lawyers, physicians, etc.) to operate in the form of professional LLC's.

In addition to initial filing fees, an LLC formed in New Hampshire must subsequently file annual reports and pay an annual report filing fee of $100 with each such annual report. A foreign LLC is also required to file an annual report and pay the applicable filing fee of $100. A late fee applies to any late filing of an annual report or late payment of the annual fee.

For more information on filing a certificate of formation for an LLC or for registering a foreign LLC, see the contact information for the offices of the secretary of state, listed in Section VI(a).

(g) New Hampshire Securities Laws. New Hampshire has added a new requirement since July 1, 2006 for any business registration of a corporation, limited partnership, LLP, or LLC. Any such domestically formed or foreign (non-New Hampshire) entity is now required to file Form SRA -- Addendum to Business Organization and Registration Forms (3/08) and pay an additional fee of $50 to the New Hampshire Secretary of State when registering the business entity.

This form is a statement certifying that you have complied with the New Hampshire securities laws in connection with any issuance of securities in the state. Generally, a business that issues securities in New Hampshire must either register the securities or claim a valid exemption from registration. Ownership interests in a corporation, LLC, limited partnership, or LLP are usually considered to be securities under the New Hampshire securities laws.

Form SRA contains four boxes, one (and ONLY ONE) of which must be checked, each of which specifies a different means of compliance with (or exemption from) the New Hampshire securities laws. These are as follows:

  • 1. Ownership interests in the business are exempt from New Hampshire securities registration requirements because the business meets all 3 of the following requirements:
    • It has 10 or fewer owners (shareholders, partners, or members); and
    • Advertising relating to the sale of ownership interests in the business has not been circulated (advertising about the products or services to be offered is O.K.); and
    • Sales of ownership interests, if any, have already been completed or will be completed within 60 days of the formation of the business.
    (This is the exemption that will typically apply for most small business entities, so you will probably be able to check this box on the form.)
  • 2. The business will offer securities in New Hampshire under another exemption from registration or will notice file for federal covered securities. (If checking this box, you must enter the law citation for the exemption upon which you are relying.)
  • 3. The business has registered or will register its securities in New Hampshire. (If checking this box, you must enter the date when the registration was filed or will be filed.)
  • 4. The business was formed in a state other than New Hampshire and will not offer or sell its securities in New Hampshire.

The filing of Form SRA is required only for businesses that offer or issue securities, and thus does not a apply to a sole proprietorship. Also, interests in a general partnership are usually not considered to be securities, though interests in a general partnership that has registered as an LLP are usually considered securities. However, interests in a professional LLC or professional LLP are generally exempted from the definition of "securities" under New Hampshire laws.

III. BUSINESS ACQUISITIONS

(a) In General. When acquiring an existing business, there are a number of state legal and tax issues and other matters that you, or, for some items, your business attorney or CPA, should attend to before closing the purchase, to help prevent later, unpleasant surprises. These include matters such as:

  • Doing a title search for any real property that is being acquired (your attorney);
  • Checking for any recorded security interests on personal property items, and thoroughly researching county, state, and federal records for any judgment liens, tax liens, or other liens, before property is acquired (your attorney);
  • Performing a thorough review of business books and records, including tax returns, payroll records, corporate minute books, and receivables and payables (your accountant, usually);
  • Reviewing the status of any leases, contracts, or pending litigation involving the seller, as well as all intangible property rights, such as trademarks, service marks, patents, or copyrights (your attorney);
  • Taking a physical inventory of all furniture, fixtures, inventories, equipment and other tangible personal property or real estate, to be sure of exactly what you are buying;
  • Having discussions with important customers and suppliers of the business to make sure there are no pending disruptions of relationships with key customers or suppliers; and
  • Consulting a tax advisor before the agreement of sale is negotiated, in order to seek a structuring of the agreement so that the purchase price is allocated among the assets in a way that favors you. You may be able to obtain considerable tax savings if the purchase price is allocated in a way that gives you the best possible tax results under federal income tax laws and state tax laws, such as sales/use tax or property tax laws.

Depending upon the state (or states) in which the seller's assets are located, you may also have to comply with state bulk sale or bulk transfer laws. You should also obtain tax releases from various state taxing agencies, as discussed below.

(b) Bulk Sale Laws. Typical bulk sale laws require either publication of legal notices to all creditors in advance of the sale and recording of such notices in some cases, or maintenance of detailed lists of the property to be transferred, for inspection by the public.

New Hampshire is one of the business-friendly states that has repealed its bulk sale laws, so you no longer have to be concerned with this requirement when buying a business whose assets are located in New Hampshire.

(c) Tax Releases. When you acquire an existing business, you will want to make sure that you do not unwittingly become liable for any unpaid taxes owed by the seller. Typically, to protect yourself, you will need to receive a tax release or releases from various state taxing agencies, for such taxes as sales and use tax, income tax withholding, and state unemployment taxes, in each state in which the seller does business. If you fail to obtain such a release or written statement from the tax agency confirming that the seller is not delinquent on any tax payments, you can be held responsible for such tax if it is not withheld from the purchase price proceeds and paid to the state at the time the sale of the business transpires.

In New Hampshire, you should obtain a tax release for unemployment taxes from the Employer Status Section of the new Hampshire Department of Employment Security. In addition, be sure that the business you are buying is current in its payments of Business Profits and Business Enterprise Taxes, by having the seller obtain a Certificate of Good Standing from the Department of Revenue Administration.

(d) Unemployment Tax Rating of Seller. In addition to obtaining tax releases, you may find it advantageous to succeed to the seller's unemployment tax experience rating, if the seller has a tax rate lower than you would otherwise obtain as a new business. In most states, succeeding to the seller's experience rating is optional and you are required to apply for it, if you wish to be treated as a successor employer. However, in New Hampshire, you will automatically, by law, inherit the seller's merit rate and past experience history, and thus will be treated as a successor employer, if you acquire substantially all of the New Hampshire business assets of the seller and intend to continue the seller's business.

Therefore, it is important to find out in advance if the seller's experience record you will succeed to is a favorable one or not. In addition, if you do become a successor employer, you must notify the Labor Commissioner within 30 days after the business is acquired.

If you acquire only part of the seller's business (a segregable unit), you may elect to have the seller's experience rating for that unit transferred to you, but if you wish to do so, you must file a written request for the transfer within 30 days after the transaction, along with a notarized waiver by the seller, agreeing to the experience rating transfer for the acquired business unit.

Effective since January 1, 2006, the transfer of the seller's experience rating is mandatory in any acquisition of a business or business unit where both the selling and buying companies are under common management, control, or have common ownership.

PLANNING POINT:
Besides possibly obtaining a lower unemployment tax rate and experience rating, another clear advantage of being treated as a successor employer is that you may take into account wages already paid to the acquired employees by the former employer during the year of the acquisition. Thus, you will not have to pay tax on the amount of wages paid to an employee in that year by the former employer, who will have already paid unemployment tax on such wages, for which you may take credit, in determining the amount of tax owed on total wages paid to that employee for the year.
EXAMPLE:
Employee X has already earned wages equal to or exceeding the current year taxable wage base amount, while employed by the former employer, on which the former employer has paid the unemployment tax. Thus, as a successor employer, your business would not incur any unemployment tax on wages you pay to Employee X for the remainder of the year of the business acquisition.


IV. NEW HAMPSHIRE TAXES AND OTHER GENERAL REQUIREMENTS.

(a) In General. New Hampshire provides a very favorable environment for small businesses, including one of the lowest per capita tax burdens in the nation. It is one of only two states (Alaska is the other) that have neither individual income taxes nor state sales taxes, which makes New Hampshire a very attractive place to do businesses.

However, in addition to local property taxes, businesses may be subject to any or all three of the following major state taxes:

For state tax forms and tax information, see the contact information for the New Hampshire Department of Revenue Administration in Section VI(a).

(b) State and Local Licensing. Nearly any business, operated anywhere in the United States, will have to have at least one government license of some kind. In most cases, this will be a local license, issued by your city or county. Before you open your business, contact your local city or county hall and find out if your particular business needs one or more local licenses. Most kinds of local business licenses are granted upon payment of a fee, with no further requirements, except possibly for annual or other periodic renewal fees.

However, if you are engaging in any kind of food business, you will usually need to also obtain a health department permit and show that you are in compliance with health department food-handling requirements. In addition, be sure to check with an attorney or local government zoning or planning department officials to determine if your business will be in compliance with all local zoning and planning restrictions. If you own or rent any type of facility, you will generally need fire department permits, showing that you meet fire safety codes and any construction or improvements to an existing structure will usually require a building permit. If you intend to simply operate your business from your home, you may be in violation of local zoning requirements, but this is less likely to be a concern if you don't have clients, customers, suppliers, or employees coming to your house on business, on a regular basis.

STATE LICENSES

State governments have traditionally required special licenses for many kinds of professionals, such as physicians, dentists, lawyers, and accountants. To further protect consumers, New Hampshire has expanded the list of occupations that must be licensed by the state to include many other occupations. Most state licenses not only require payment of fees, but are only issued for a given profession or occupation upon showing that you have completed certain educational or experience requirements, or passed certain tests, or some combination of the foregoing. A partial list of professions, businesses, or occupations requiring licenses includes:

  • Accountants, Certified Public
  • Acupuncturist
  • Aircraft and airports
  • Alarm installers
  • Alcohol and drug abuse counselors
  • Architects
  • Asbestos inspector, abatement worker, disposal site worker, project designer
  • Athletic trainer
  • Attorneys
  • Auctioneers
  • Audiologist
  • Bail bondsmen
  • Barbers and barber schools
  • Beverage bottlers and retailers
  • Billiard tables
  • Body art practitioner
  • Boilers and unfired pressure vessels
  • Bowling alleys
  • Boxing and wrestling matches
  • Child care program center director
  • Chiropractors
  • Clams, clam worms and oysters
  • Cosmetologists
  • Dentists and dental hygienists
  • Dietitian
  • Dog racing
  • Driver education instructor
  • Drugs (manufacturers and wholesalers)
  • Electrician (master, journeyman and other licenses)
  • Elevators
  • Embalmer
  • Employment agencies
  • Engineers
  • Entertainments
  • Esthetician
  • Explosives workers, blasters
  • Feeds
  • Fertilizers
  • Fireworks display specialist
  • Fish and game propagation
  • Forester
  • Funeral directors, morticians and embalmers
  • Fur buyers
  • Geologists, professional
  • Guides
  • Hawkers and peddlers
  • Hazardous waste coordinator
  • Hearing aid dealer
  • Horse racing
  • Hospitals
  • Hotels
  • Incinerators and operators
  • Installment sales of motor vehicles
  • Insurance companies, agents and brokers
  • Insurance adjusters
  • Investment advisers
  • Itinerant vendors
  • Jockeys
  • Junk dealers
  • Land surveyors
  • Legislative counsel
  • Lightning rods
  • Livestock dealers, auctions, sales rings
  • Loans (small or second mortgage)
  • Lobbyists
  • Lobsters and crabs
  • Manicurists
  • Marital counselors
  • Massage therapists
  • Mental health counselors
  • Midwives
  • Milk and cream
  • Mines
  • Motor Vehicle Junk Yards
  • Naturopaths
  • Nurses (RNs, LPNs, ARNPs and LNAs)
  • Nursing home administrators
  • Occupational therapists
  • Ophthalmic dispensers
  • Optometry
  • Pawnbrokers
  • Pesticides
  • Pet shops
  • Pharmacists
  • Physical therapists
  • Physicians and surgeons
  • Plumbers
  • Podiatrists
  • Poultry dealers
  • Psychologists
  • Public adjusters
  • Radiation devices and materials
  • Real estate appraisers
  • Real estate brokers and salesmen
  • Restaurants
  • Recreation camps for children
  • Respiratory care practitioners
  • Sawmills
  • Securities salespersons
  • Security guards
  • Shows and exhibitions
  • Social workers
  • Solid waste operators
  • Speech-language pathologist
  • Teachers
  • Trading stamp companies
  • Vessels
  • Veterinarians
  • Vocational educators
  • Warehouses (bonded or cold storage)
  • Waste material removal
  • Water well contractor
  • Weighing and measuring devices
  • Wetlands Scientist, Certified

Unlike most states, New Hampshire does not require most businesses to register for a sales tax permit, since there is no general sales tax in New Hampshire. However, businesses that serve meals or rent rooms or vehicles will be subject to the meals and rentals (lodging and auto rentals) tax and must obtain a license from the state. Such firms must apply for a meals and rentals tax license and provide a bank account debit authorization to the state on Form CD-3, which is available from the Department of Revenue Administration.

For help with state licensing and business registration requirements in New Hampshire, see the contact information for the offices of the secretary of state, listed in Section VI(a).

(c) Income and Franchise Taxes. New Hampshire is one of the few states that does not have a general individual income tax, although it does impose an income tax on interest and dividend income (and defines taxable "dividends" to include distributions from S corporations and some unincorporated business entities). However, New Hampshire does have a tax on the income of all types of businesses, whether or not incorporated -- the Business Profits Tax. It also imposes a Business Enterprise Tax on most businesses. Either the Business Profits Tax or the Business Enterprise Tax, or both, will apply to all but very small businesses that operate in the state, but a business that is subject to both will, in effect, only pay whichever of the two taxes is greater.

TAXATION OF SOLE PROPRIETORS AND PARTNERSHIPS

The New Hampshire income tax is imposed at a flat rate of 5%, but it applies only to dividends and interest. It is applicable only if you have over $2,400 (or $4,800, if filing a joint return) of dividends and interest for the year. Additional $1,200 exemptions may be available if a taxpayer is 65 years old or older, blind, or is under age 65 and disabled. The income tax also applies to any partnership or LLC with over $2,400 of interest and dividend income. Estimated income tax payments, on April 15th, June 15th, September 15th, and the following January 15th are required, unless the tax liability for the year is less than $500.

IMPORTANT NOTE:
In New Hampshire, when shareholders of an S corporation receive dividends paid by the corporation, they must pay the 5% tax that applies to dividend and interest income, which can be a significant problem, since many S corporations distribute a large part of their income as dividends. (S corporation dividends are not usually subject to federal income tax or, in most other states, to state income tax.)

In addition, distributions from LLC's or partnerships may also be treated as "dividends" and taxed under the New Hampshire income tax on dividends and interest, if the recipient can transfer his or her interest in the LLC or partnership freely, without causing dissolution of the entity or without requiring approval of the other members or partners. (LLC or partnership distributions are not usually subject to federal income tax or, in most other states, to state income tax.)


Individual taxpayers also indirectly pay a state income tax (Business Profits Tax) on their business earnings from a sole proprietorship, but not on their individual New Hampshire income tax return.

Similarly, individuals do not pay state tax directly on their share of the earnings of a pass-through entity, such as a partnership, S corporation, or LLC. (Except, as noted above, they will pay tax on the dividends distributed by a corporation, and, in some cases, on distributions received from an LLC or partnership.) Instead, the Business Profits Tax applies to the income of the business entity (sole proprietorship, partnership, S corporation, or LLC) at the entity level, the same as for regular corporations. Thus, if an individual or an individual and spouse own two separate businesses, each business must file its own Business Profits Tax return and possibly its own Business Enterprise Tax return, unless it is a small business that is exempted from filing.

The Business Profits Tax is an 8.5% tax on the net income of any business that has gross business income (everywhere, not just income earned in New Hampshire) of over $50,000, regardless of whether the business is a sole proprietorship, partnership, LLC, C corporation, or an S corporation. The business is allowed a deduction equal to a fair and reasonable compensation as a sole proprietor, or for each partner in a partnership or member of an LLC, with a minimum personal services deduction of $6,000 per owner each year, for each person who actually devotes time and effort to the operation of the business.

Most sole proprietorships and partnerships, except those businesses that are small enough to be exempted, are also subject to the Business Enterprise Tax (BET), which is applied to a tax base that measures certain levels of business activity, rather than taxable income or capital. The BET applies to any business if its gross business receipts for the year exceed $150,000 or if its tax base is more than $75,000.

The tax base for the BET consists of compensation, interest, and dividends paid by the business, generally. For purposes of the BET, "dividends" paid include distributions of money or property from unincorporated entities, as well as from corporations. The BET tax rate is 0.75% of the enterprise's tax base.

A credit is generally allowed against the Business Profits Tax for the Business Enterprise Tax paid, if any, so this tax does not actually cost you any additional expense, unless it exceeds the amount of your Business Profits Tax. Thus, in effect, the total amount of these two taxes you pay is equal to whichever of the two is the larger tax. Any Business Enterprise Tax you pay that cannot be used as a credit currently (because it exceeds the amount of your Business Profits Tax) can be carried forward for five years and possibly used as a tax credit in those future taxable years.

A sole proprietorship must file an annual Business Profits Tax return (Form NH-1040), attaching it to the Business Enterprise Tax return (Form BET-PROP) and filing both returns by the 15th day of the fourth month after the end of the tax year (by April 15th for a calendar year taxpayer).

Partnerships, or entities taxable as partnerships, such as LLC's, are also subject to the Business Profits Tax. However, a partnership (or LLC taxable as a partnership) must file Form NH-1065 rather than Form NH-1040 with its Form BET, by the 15th day of the fourth month after the end of its taxable year. The partnership pays the tax on the business income, but the partners are not subject to tax on their share of the partnership's income, since New Hampshire generally does not impose a personal income tax on individuals. Also, if a partnership has more than $2,400 of dividend and interest income, it must file Form DP-10 and pay the 5% state income tax on investment income. Dividends received by a partnership are taxable only at the entity level, and not to the individual partners, generally.

Estimated tax payments by sole proprietors or partnerships are due in four installments of 25% for each quarter of the tax year, if the total Business Profits Tax for the year is expected to be $200 or more. Payments are due on April 15th, June 15th, September 15th, and December 15th, in the case of a calendar year business.

TAXATION OF CORPORATIONS

New Hampshire imposes a net income tax on corporations, called the Business Profits Tax, at a tax rate of 8.5% of taxable income. Corporations (including S corporations) are generally subject to the same rules for payment of Business Profits Tax as unincorporated businesses. However, corporations must file their Business Profits Tax on Form NH-1120 along with Form BET (for Business Enterprise Tax) by the 15th day of the third month after the end of the taxable year (by March 15th in the case of a calendar year corporation).

Estimated tax payments by corporations are due in four installments of 25% for each quarter of the tax year, if the total Business Profits Tax for the year is expected to be $200 or more. Payments are due on April 15th, June 15th, September 15th, and December 15th, in the case of a calendar year business.

Penalties will be imposed for failure to make the required estimated tax payments on a timely basis.

The other state tax that applies generally to all New Hampshire businesses, regardless of whether they are incorporated or not, is the Business Enterprise Tax (BET). The BET is a tax of 0.75%, imposed on a company's "tax base." The tax base is defined as the sum of the company's compensation expense, interest expense, and dividends paid for the year.

The BET applies to any business if its gross business receipts for the year exceed $150,000 or if its tax base is more than $75,000.

As with the Business Profits Tax, companies are required to make estimated tax payments of BET on the same dates as Business Profits Tax estimated tax payments, if the total BET for the year is expected to be $200 or more.

The annual corporation BET tax return, Form BET, is due on the 15th day of the third month after the end of the tax year for companies filing federal corporate tax returns (by the 15th day of the fourth month after the end of the tax year for other businesses).

Any BET paid can generally be claimed as a tax credit against your Business Profits Tax, or if it exceeds your Business Profits Tax Liability, can be carried forward for five years. Thus, a business will generally pay a total of Business Profits Tax and BET tax each year that is equal to the greater of either the BET or the Business Profits Tax.

TAXATION OF LIMITED LIABILITY COMPANIES

In New Hampshire, unlike most other states, limited liability companies (LLC's) are taxed like corporations and other unincorporated businesses for state income tax (Business Profits Tax) purposes. Unless it is taxed as a corporation for federal tax purposes, an LLC with more than one member reports its Business Profits Tax on the same form as partnerships, Form NH-1065, due on the 15th day of the fourth month after the end of its taxable year.

While a single-member LLC is usually a disregarded entity for federal tax purposes, it is not disregarded for New Hampshire tax purposes, and must file a Business Profits Tax return on the same form as a sole proprietorship, Form NH-1040, if the LLC is owned by an individual. Form DP-200, Request for Department Identification Number (DIN), must be filed by a single member LLC at least 30 days prior to filing any other tax related documents.

While the members of a limited liability company (LLC) are not taxable on the LLC's business profits, the LLC itself is subject to the New Hampshire Business Profits Tax on its net income, on the same basis as other unincorporated businesses or corporations, at the same tax rate of 8.5%. An LLC is also subject to the tax on dividend and interest income, if it receives more than $2,400 of such income during the taxable year.

Note that distributions from LLC's may also be treated as "dividends" and taxed to the recipient member under the New Hampshire income tax on dividends and interest, if the recipient can transfer his or her interest in the LLC freely, without causing dissolution of the entity or without requiring approval of the other members or partners.

Estimated tax payments by LLC's are due in four equal installments of 25% for each quarter of the tax year, if the total Business Profits Tax for the year is expected to be $200 or more. Payments are due on April 15th, June 15th, September 15th, and December 15th, in the case of a calendar year business.

LLC's, like all other businesses, are also subject to the Business Enterprise Tax, which is based on an LLC's "tax base" (which is the sum of its compensation expense and interest expense), and applies at the rate of 0.75% of the tax base. The Business Enterprise Tax, if any, is allowed as a tax credit against the Business Profits Tax liability so that, in effect, a business pays only the higher of the two taxes.

The BET applies to any business if its gross business receipts for the year exceed $150,000 or if its tax base is more than $75,000.

(d) Sales and Use Tax. There is no general sales or use tax in New Hampshire. However, the state does impose a sales tax of 8% on meals, room occupancy, and car rentals, as well as a 7% tax on all two-way communications services.

The meals tax applies to restaurants, generally, or to any food or beverage prepared by a restaurant, whether it is to be consumed on-premises or off. Groceries and other food items that are packaged off the premises are not subject to the meals tax, except for sandwiches, catered or delivered meals, or beverages in unsealed containers. Beverages subject to the tax include alcoholic beverages.

The rooms tax applies to any rental of lodging for less than 185 days. Once a renter has remained in the lodging facility for 185 days, a refund can be obtained of the tax that has been paid. A similar rule applies to vehicle rentals, which are taxable if rented for 180 days or less. The tax on vehicle rentals does not apply to charges by taxicabs, limousine services, or buses, if the driver is provided by the rental company.

Businesses collecting the meals and rentals taxes are allowed to retain 3% of the amount collected, to defray their administrative costs of collecting the tax, if the taxes are paid and returns filed on a timely basis.

Before making any taxable sales subject to the meal or rentals taxes, you will need to register with the Department of Revenue Administration for an Operator's License, on Form CD-3. Meal and rentals tax reports can be filed on-line, or use Form DP-14.

For more information on New Hampshire meals and rentals tax registration and compliance, see contact information for the offices of the Department of Revenue Administration in Section VI(a).

(e) Real and Personal Property Taxes. In New Hampshire, as in every other state, any business real estate you own will be subject to real property taxes. In general, there is little that you must do, unless you wish to challenge your assessed valuation, since the assessor will bill you for each year's property taxes as they come due. Many towns and cities in the state also impose an annual $10 per person residence tax.

UPDATE NOTE:
The New Hampshire Supreme Court has ruled that the state's method of statewide property taxation to fund education is unconstitutional, but gave the legislature until the end of the 2007 fiscal year to correct the constitutional defects. At present the effects of this decision on business property taxes is unclear.

New Hampshire also imposes personal property taxes on tangible personal property. ("Personal property" is any kind of property that is not real estate.) However, certain types of business personal property, such as business inventories and business equipment and machinery, are exempt from personal property tax in New Hampshire.

While New Hampshire generally taxes tangible personal property, it does not impose a property tax on intangible personal property, such as stocks, bonds, promissory notes, and other such paper assets.

(f) Other Business Taxes. New Hampshire imposes a number of excise and other taxes on businesses, some of which may affect you. These include:

  • Taxes on alcoholic beverages;
  • Cigarette and tobacco products taxes;
  • Gasoline and other fuel taxes (administered by the Department of Safety Road Toll Bureau);
  • Motor vehicle registration taxes and fees;
  • Real estate conveyance taxes of 75 cents per $100 of value of real estate transfers, with a $20 minimum tax on both buyer and seller when the value of the property is $4,000 or less (the tax applies to both the buyer and the seller, so that the total tax rate on a transfer of realty is actually $1.50 per $100 of value);
  • Various types of environmental taxes;
  • A "pick-up" estate tax on the estates of decedents, based on the allowable federal death tax credit (which currently is zero, so the New Hampshire estate tax rate is zero percent at present);
  • An excavation tax ("gravel tax") on excavations at the rate of $.02 per cubic yard;
  • Stumpage taxes of 10% on timber; and
  • Various other taxes on special kinds of businesses, such as insurance companies and utility companies.

New Hampshire repealed its inheritance tax for deaths occurring on or after January 1, 2003 and there is no state gift tax or generation-skipping tax in New Hampshire.

(g) Trade Names. A trade name, also known as a fictitious or assumed name, is any name used in the course of business that does not include the actual legal names of all the owners of the business. Thus, if your business goes by any name other than your own real name, it is operating under a trade name. The same is true of a corporation or other business entity, if it operates under a name other than its legal name. A trade name might also be one that suggests the existence of additional owners, by using such words as "company," "associates," or "group."

In most states where you do business, it will be necessary to register a trade, fictitious, or assumed name, so that people who do business with you can find out who the actual owners of your business are. You may also want to register any such trade name, as a means of protecting against other companies usurping that particular trade name.

In New Hampshire, if a sole proprietorship uses a fictitious business name (trade name), it must register the name with the secretary of state's office on Form TN-1. For example, if a sole proprietor's name is Jane Doe and she does business under the name "Jane Doe Enterprises" instead of just plain "Jane Doe," that will be considered a fictitious business name that she must register.

Also, every general partnership must register its business name as a trade name with the secretary of state. A fee of $50 must be submitted with the registration, which continues in effect for five years, after which it is necessary to renew the registration.

Registration of trade names is not required for domestic corporations, LLC's, LLP's, or limited partnerships or for those types of foreign legal entities, if they have registered to do business in the state.


V. EMPLOYER REQUIREMENTS IF YOU HAVE EMPLOYEES

(a) Employer Registration and Withholding. If you have any employees, you will be required to withhold both federal income tax and FICA taxes from their wages. Fortunately, since New Hampshire has no general state income tax on wages, you will not need to be concerned with any obligation to withhold state income tax. However, if you pay more than a minimal amount of wages, you will most likely be required to pay state unemployment tax, and will have to register with the state as an employer for unemployment tax purposes, as described in Section V(b).

(b) Unemployment and Other State Payroll Taxes. If your business has one or more employees, you, as an employer, will be required to pay state unemployment tax based on the amount of such wages paid.

Employers subject to the New Hampshire unemployment tax are required to register with the Department of Employment Security on their Employer Status Report form.

New employers are required to pay tax at a normal rate of 2.7% in 2008 on the first $8,000 of wages paid to each employee. However, this rate can be reduced, for all new employers and for experience-rated employers with normal rates of 2.7% or less. The rate reduction can be either 0.5%, 1%, or 1.5%, if the state unemployment fund reserves exceed certain specified levels, beginning at $225 million. Thus, since the 4th quarter of 2006, and for all four quarters of 2007 and 2008, the rate for new employers is reduced by 1%, to 1.7%.

After you have had employees for a while, you will develop an unemployment tax experience rating. This rating is based on the number of employees you terminate who then claim unemployment benefits and the amount of such benefits paid to those former employees, under complex formulas. The state will inform you when they have assigned you an individual tax rate based on your firm's experience rating. That rate may be higher or, if you have had relatively few benefit claims charged to your account, lower than the standard new employer tax rate you initially were paying.

All state unemployment taxes are imposed upon you as the employer, and, under New Hampshire law, cannot be charged to your employees or withheld from their wages.

For more information on your New Hampshire unemployment tax obligations as an employer, see the contact information for the offices of the New Hampshire Department of Employment Security, listed in Section VI(a).

(c) Workers' Compensation. Workers' compensation insurance is a state-mandated insurance requirement for most employers, in almost every state. In New Hampshire, virtually all businesses with one or more employees are required by law to have workers' compensation insurance, except those able to self-insure. Note, however, that a sole proprietor or a partner in a partnership is generally not considered an employee. Similarly, workers' compensation coverage is not required for:

  • a corporation with up to three executive officers and no other employees, or
  • a limited liability company with up to 3 members and no employees.

However, if a corporation or LLC has more than 3 officers or members, or has one or more other employees, it is then subject to the workers' compensation law, although up to 3 corporate officers or LLC members may elect to be excluded from coverage.

Workers who are direct sellers, licensed real estate brokers, or licensed real estate salespersons are not considered to be employees and thus need not be covered if certain requirements are met, establishing that they are independent contractors.

Workers' compensation provides wage loss and medical benefits to employees injured on the job and it protects you, as an employer, from legal action for damages for injuries or job-related illnesses suffered by your employees. In effect, it is a "no-fault" insurance system for work-related injuries or illnesses. Thus, if you fail to obtain required workers' compensation insurance, and an employee is injured on the job, you will have opened yourself to unlimited liability and severe legal consequences, so it is very important to obtain workers' compensation insurance for your employees.

Be aware that neither general liability nor health and accident insurance can properly substitute for workers' compensation insurance.

As an employer, you must notify injured employees of their benefits and post a notice in the workplace informing your employees of their workers' compensation coverage. If an employee is injured in the course of employment, you must report the injury to the Labor Commissioner no later than 5 days after learning of the injury.

For more detailed information regarding your obligations as an employer under the New Hampshire workers' compensation laws, contact your insurance carrier or see the contact information for the offices of the New Hampshire Department of Labor, listed in Section VI(a).

(d) State Wage and Hour Laws. Some employees of certain small firms not engaged in interstate commerce are not covered by the federal minimum wage and overtime laws. However, even if few or none of your employees are covered by the federal wage-hour laws, if, for example, because your firm does less than $500,000 a year in gross sales and the employees in question are not deemed to "...engage in (interstate) commerce...," they will still generally be subject to the New Hampshire wage-hour laws, which provide for a state minimum hourly wage that is no lower than the federal minimum wage, which has been $5.15 an hour since 1997, but was recently increased to $5.85 an hour, effective July 24, 2007. On September 1, 2007, the New Hampshire minimum wage increased to $6.50 and increases further to $7.25 on September 1, 2008.

The state minimum wage requirements do not apply to a person under the age of 16 or to a person with less than 6 months of experience in an occupation. In either such case, however, the worker must be paid at least 75% of the regular minimum wage.

New Hampshire state law also generally requires payment of time-and-a-half overtime pay, for hours worked in excess of 40 a week.

Besides the federal wage-hour posters that you must display in the workplace, you must also display a state wage-hour poster, which you can obtain from the Wage and Hour Division of the New Hampshire Department of Labor.

STATE CHILD LABOR LAWS

In addition to wage-hour laws, most businesses are subject to federal child labor laws, which put numerous restrictions on the working hours and kinds of work in which minors under the age of 18 may engage. Your business must also be cognizant of similar state child labor laws, in New Hampshire.

The New Hampshire child labor laws prohibit the employment of youths under age 18 in any kind of hazardous employment, except in certain training or rehabilitation programs approved by the Labor Commissioner.

Children under age 16 are prohibited from:

  • Employment without an employment certificate, except where working for certain family members or doing farm labor;
  • Working in a dangerous area in manufacturing, construction, and mining and quarrying occupations, or in woods and logging; or
  • Working earlier than 7 a.m. or later than 9 p.m., more than 3 hours per day on school days and 23 hours per week during school weeks, except that on non-school days such a youth may be employed 8 hours per day and, during vacations, 48 hours per week.

Employees who are 16 or 17 years old and enrolled in school may not work more than 6 consecutive days and may not work more than 30 hours during a school week (Sunday through Saturday) or more than 48 hours in a week during school vacations, including summer vacation.

Children under the age of 12 are not permitted to work at all, except for their parents, or at casual labor, such as outdoor delivery of newspapers.

(e) State Occupational Safety and Health Laws. Employers in New Hampshire must comply with state and federal job safety laws designed to prevent injuries resulting from unsafe or unhealthy conditions in the workplace. Because New Hampshire, like a majority of other states, has not set up its own enforcement agency, the federal Occupational Safety and Health Administration (OSHA) enforces most health and safety standards in New Hampshire.

However, the state requires employers with 10 or more employees to prepare a current written safety program, which must be filed with the Safety and Training Division of the New Hampshire Department of Labor on January 1 of every other year, on Safety Summary Form No WCSSF. Also, the state can provide free safety consultations for employers, to help employers comply with OSHA regulations and safety standards.

Employers with 5 or more employees are required to form a joint loss management committee, consisting of equal membership from both labor and management staff. Employees choose their own representatives for this committee. The committees are to meet quarterly and to maintain "minutes" of all meetings.

Note that while you may obtain a free safety consultation from federal OSHA experts, they must and will cite you for any violations they discover at your workplace. This is not the case with state safety inspections. If you request a safety consultation from the Occupational Health and Safety Consultation Service, part of the New Hampshire Department of Environmental Services, and they detect violations, they will not cite you if you promptly correct the unsafe conditions. Nor will they report the violations to federal OSHA, nor "guarantee" that you will pass a federal OSHA safety inspection.

For information on your job safety and health obligations as an employer, required posters, and possible on-site safety consultations, see the contact information for the Concord offices of Occupational Health and Safety Consultation Service, New Hampshire Department of Environmental Services, listed in Section VI(a).

(f) Other Miscellaneous State Labor Laws. Other New Hampshire labor laws employers need to know about include the following:

(1) Wage payments to terminated employees and other workplace laws. All wages due an employee must be paid no later than 8 days after the end of the week in which the work was performed. However, whenever an employer discharges an employee, the employer must pay the employee's wages in full within 72 hours.

Whenever an employee quits or resigns, you must pay the employee's wages no later than the next regular payday, either through the regular pay channels or by mail if requested by the employee, except that if the employee gives you at least one pay period's advance notice of intention to quit, you must pay the final wages within 72 hours of his or her quit date. If an employer fails to pay final wages to an individual whose employment has terminated on a timely basis, the former employee may be entitled to liquidated damages from the employer, for each day payment is late (not counting Sundays or legal holidays), of 10% of the wages owed, up to 100% of the wages owed the employee.

State law in New Hampshire requires employers to post a "Protective Legislation Law Poster" in the workplace, which apprises workers of paydays, the requirements mentioned in the preceding paragraphs, and other employee rights under New Hampshire's labor laws. To obtain a copy of this poster from the New Hampshire Department of Labor, see the contact information for that agency in Section VI(a).

Under New Hampshire's labor laws, an employer may not require an employee to work more than 5 consecutive hours without granting the employee a 1/2 hour lunch or eating period, unless it is feasible for the employee to eat during the performance of his or her work and the employer permits him or her to do so.

(2) Right-to-work laws. About half the states have enacted "right-to-work" laws, which guarantee that no person may be denied employment for refusing to join a union or for not paying union dues, thus banning either "union shop" or "agency shop" agreements, or both. In a union shop, an employee not belonging to a union may be hired but then must join the union, usually within 30 days. In an agency shop, an employee need not join the union but, to remain employed, must pay union dues.

New Hampshire does not have such a right-to-work law and thus allows union shop or agency shop contracts between an employer and a union. To the contrary, New Hampshire instead has a law that makes it illegal to coerce or attempt to coerce or compel any person into an agreement not to join or become a member of a labor union, as a condition of employment or continuing in employment.

(3) State anti-discrimination laws. In addition to complying with federal anti-discrimination laws, employers with 6 or more employees must also be aware of and comply with state civil rights laws in New Hampshire, and must display a poster informing employees of their rights. You can obtain this poster from the Concord office of the New Hampshire Commission for Human Rights, at the address that is listed in Section VI(a). Note that the New Hampshire law prohibits any discrimination in employment based on age, gender, ethnicity, marital status, physical or mental disability, religion, national origin, or sexual orientation. Sexual harassment is specifically defined as being a form of sexual discrimination.

New Hampshire's gender discrimination laws also prohibit discrimination against women based on pregnancy and require covered employers to provide pregnancy leave to women employees when they are unable to work due to pregnancy, as discussed in Section V(f)(5).

(4) Reporting new hires. Under federal welfare reform laws, employers in all states are now required to report newly-hired (or rehired) employees to a designated state agency (the Department of Employment Security for New Hampshire employers) within 20 days after the date of hire. If filing electronically, reports must be filed twice a month, on dates not less than 12 days nor more than 16 days apart.

REPORTING INDEPENDENT CONTRACTOR SERVICES

In the past, some "deadbeat dads" have avoided garnishment of their wages for child support obligations by going to work as independent contractors, rather than as employees. Under a new law that went into effect on July 20, 2007, New Hampshire now also requires businesses to report, in a manner similar to new hires, payments to independent contractors, when such payments are expected to exceed $2,500.

See the contact information for New Hires Reporting in Section VI(a).

(5) Pregnancy leave law. New Hampshire does not have a general family leave law. However, state law in New Hampshire does require that employers with 6 or more employees grant maternity leave to pregnant employees. Such leave need not be paid leave, unless the employer provides paid leave for other types of temporary physical disabilities. In general, pregnancy must be treated the same as any other type of temporary physical disability by covered employers who make any special provisions for such temporary disabilities.

Unlike the maternity leave laws in other states that have such laws, New Hampshire does not set any specific amount of time that an employee must be granted a period of leave. Instead, the maternity leave is based on the period she is disabled as determined by a physician, usually her physician. No additional period of leave is granted for bonding with the newborn child, only for the woman's period of physical disability. However, if an employer permits child care leave, it must be granted equally to men and women employees.

When the employee is physically able to return to work, her original job or a comparable position must be made available to her by the employer unless business necessity makes this impossible or unreasonable.

For more information on New Hampshire's pregnancy leave law, see the contact information for the New Hampshire Commission for Human Rights, at the address listed in Section VI(a).


VI. STATE SOURCES OF HELP AND INFORMATION

(a) Key State Agencies Contact Information. Unlike many other states, New Hampshire does not have a single agency to whom you can go to handle all your licensing and permitting requirements for your business under the laws of New Hampshire. Accordingly, you will need to contact the various New Hampshire government agencies that are mentioned in this book or listed below on an individual basis, to obtain needed forms, official posters, information, and other assistance from each such agency.

A list of addresses and other contact information for such key agencies is set forth below for your convenience.

BUSINESS STARTUP INFORMATION. A key agency that can provide helpful information on getting your business up and running in New Hampshire is:

New Hampshire Department of Resources and Economic Development
New Hampshire Business Resource Center

172 Pembroke Road
P.O. Box 1856
Concord, NH 03302-1856
(603) 271-2591
(603) 271-6784 (Fax)

SECRETARY OF STATE. Contact the office of the New Hampshire Secretary of State, Corporations Division, for information on:

  • Limited partnership filings and information
  • Limited liability partnership (LLP) filings
  • Corporate filings, including articles of incorporation
  • Limited liability company (LLC) filings, including certificates of formation
  • Trade name registration (required for sole proprietors and general partnerships)
  • New Hampshire securities laws
Secretary of State
Corporations Division

107 N. Main Street
Concord, NH 03301
(603) 271-3244 (General Information)
(603) 271-3246 (Corporate Information Line)
(603) 271-3247 (Fax)

TAXES. Obtain state income, Business Profits Tax, Business Enterprise Tax, meals and rentals tax, and other miscellaneous business tax forms, instructions and information from the New Hampshire Department of Revenue Administration, which is the main tax collection agency in New Hampshire.

Department of Revenue Administration
45 Chenell Drive
Concord, NH 03301
(603) 271-2191
(603) 271-6141 (Fax)

STATE LABOR LAWS. Contact the following agency about your obligations as an employer under various state labor laws, including:

  • New Hampshire wage-hour laws
  • New Hampshire child labor laws and regulations
  • Other miscellaneous New Hampshire labor laws
  • New Hampshire workers' compensation
New Hampshire Department of Labor
State Office Park South
Spaulding Building
95 Pleasant Street
Concord, NH 03301
(603) 271-3176

STATE SALES TAX. There is no general sales tax in New Hampshire. However, to register for an Operator's License for the sales tax on meals, room occupancy, and vehicle rentals, if you operate a restaurant or rent transient accommodations (such as hotel or motel rooms), or rent automobiles, obtain your license and information on the New Hampshire meals and rentals tax law from the Department of Revenue Administration, at the address listed above for that agency.

EMPLOYER WITHHOLDING. As there is no general individual income tax on wages in New Hampshire, there is no state income tax withholding requirement.

STATE UNEMPLOYMENT TAX. Contact the following state agency to determine whether you are an employer subject to payment of state unemployment taxes, and for registration as an employer if you are subject.

Department of Employment Security
32 South Main Street
Concord, NH 03301
(800) 852-3400
(603) 224-3311

NEW HIRES REPORTING. Report all newly hired employees to the New Hampshire Department of Employment Security (NHDES) within 20 days of hiring, either by mail or fax. You can call NHDES to request their reporting form. Send your reports to:

Department of Employment Security
P.O. Box 2092
Concord, NH 03302-2092
(603) 229-4371
(800) 803-4485
Fax reports to: (603) 229-4324 or (888) 783-3598

WORKERS' COMPENSATION INSURANCE. If you employ workers for whom you must supply workers' compensation coverage, contact the New Hampshire Department of Labor for further information, at the address listed above for that agency.

STATE OSHA PROGRAM. There is no state OSHA program in New Hampshire. The federal government provides federal OSHA enforcement instead. For free OSHA safety consultations, required posters, and information on federal occupational safety and health laws that affect you as an employer in New Hampshire, contact:

New Hampshire Department of Environmental Services
Occupational Health and Safety Consultation Service

P.O. Box 95
29 Hazen Drive
Concord, NH 03302-0095
(603) 271-8590
(603) 271-2667 (Fax)

-and-

U.S. Department of Labor/OSHA
Concord Area Office
J.C. Cleveland Federal Bldg.
53 Pleasant Street, Suite 3901
Concord, NH 03301
(603) 225-1629
(603) 225-1580 (Fax)

For information on submitting an annual summary of your safety program to the state, contact the New Hampshire Department of labor, at the address listed above for that agency.

STATE ANTI-DISCRIMINATION LAWS. Contact the following state agency for more detailed information on New Hampshire civil rights laws that may apply to your business, and to obtain anti-discrimination notices you are required to post in the workplace:

New Hampshire Commission for Human Rights
2 Chenell Drive
Concord, NH 03301
(603) 271-2767

(b) Small Business Development Centers. A number of Small Business Development Centers (SBDCs) are located throughout New Hampshire to assist you. These centers, usually located on college campuses, provide a wealth of start-up information and sponsor frequent business-oriented seminars. Contact the lead office below for information, or for the location of other SBDCs nearer to you.

New Hampshire SBDC
University of New Hampshire
110 McConnell Hall
15 College Road
Durham, NH 03824-3593
(603) 862-2200
(603) 862-4876 (Fax)

(c) Internet Sites. For anyone with access to the Internet, there is a wealth of state and even local business information provided by state and local governments. All states now have a state government Web page, and almost all major New Hampshire state agencies also have sites on the Internet where you can obtain useful small business information on matters such as state taxes, financing sources, or the addresses and phone numbers (or e-mail addresses) of various state and federal agencies' offices in New Hampshire.

Since new sites are appearing frequently, you might also want to search for other New Hampshire government Web sites by using one of the popular Internet search engines, such as Google or Yahoo.

To start your Internet search for New Hampshire government information, you may want to begin with the following Internet sites:

State of New Hampshire home page:
www.nh.gov/
Web listing of New Hampshire state agencies:
www.nh.gov/government/agencies.html
Department of Revenue Administration (tax forms and information):
www.nh.gov/revenue/
New Hampshire Secretary of State, Corporations Division (filings, forms and fee information for corporations, partnerships, and limited liability companies, and trade name registration):
http://www.sos.nh.gov/corporate/
Business Resource Center (New Hampshire Department of Resources and Economic Development):
www.nheconomy.com
Department of Employment Security (unemployment taxes):
www.nh.gov/nhes/
New Hire Reporting (Department of Employment Security):
www.nh.gov/nhes/employer/emp_forms_pub.htm
New Hampshire Department of Labor (minimum wage, workers' compensation, annual safety reporting for employers):
www.labor.state.nh.us/

(d) Financing Sources. For information and help on locating financing for your small business, contact the nearest U.S. Small Business Administration office in New Hampshire, or contact the following state agency:

New Hampshire Business Finance Authority
2 Pillsbury Street, Suite 201
Concord, NH 03301
(603) 415-0190
Fax (603) 415-0194

The address of the main SBA Office in New Hampshire is:

U.S. Small Business Administration
JC Cleveland Federal Building
55 Pleasant Street, Suite 3101
Concord, NH 03301
(603) 225-1400
(603) 225-1409 (Fax)


Copyright © 2008 Michael D. Jenkins
New Hampshire chapter last full revision date: July 14, 2008