I 

111TH CONGRESS 

1ST SESSION H. R. 2110 

To limit the authority of States to tax certain income of employees for 

employment duties performed in other States. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 27, 2009 

Mr. JOHNSON of Georgia (for himself, Mr. JORDAN of Ohio, Mr. GOODLATTE, 

Mr. BUTTERFIELD, and Ms. FOXX) introduced the following bill; which 

was referred to the Committee on the Judiciary 

A BILL 

To limit the authority of States to tax certain income of 

employees for employment duties performed in other States. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Mobile Workforce 

5 State Income Tax Fairness and Simplification Act’’. 

6 SEC. 2. LIMITATIONS ON STATE WITHHOLDING AND TAX7 ATION OF EMPLOYEE INCOME. 

8 (a) IN GENERAL.—No part of the wages or other re9 muneration earned by an employee who performs employVerDate Nov 24 2008 04:06 Apr 28, 2009 Jkt 079200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2110.IH H2110

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1 ment duties in more than one State shall be subject to 

2 income tax in any State other than— 

3 (1) the State of the employee’s residence; and 

4 (2) the State within which the employee is 

5 present and performing employment duties for more 

6 than 30 days during the calendar year in which the 

7 income is earned. 

8 (b) WAGES OR OTHER REMUNERATION.—Wages or 

9 other remuneration earned in any calendar year are not 

10 subject to State income tax withholding and reporting un11 less the employee is subject to income tax under subsection 

12 (a). Income tax withholding and reporting under sub13 section (a)(2) shall apply to wages or other remuneration 

14 earned as of the commencement date of duties in the State 

15 during the calendar year. 

16 (c) OPERATING RULES.—For purposes of deter17 mining an employer’s State income tax withholding and 

18 information return obligations— 

19 (1) an employer may rely on an employee’s de20 termination of the time expected to be spent by such 

21 employee in the States in which the employee will 

22 perform duties absent— 

23 (A) actual knowledge of fraud by the em24 ployee in making the estimate; or 


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1 (B) collusion between the employer and the 

2 employee to evade tax; 

3 (2) if records are maintained by an employer 

4 recording the location of an employee for other busi5 ness purposes, such records shall not preclude an 

6 employer’s ability to rely on an employee’s deter7 mination as set forth in paragraph (1); and 

8 (3) notwithstanding paragraph (2), if an em9 ployer, at its sole discretion, maintains a time and 

10 attendance system which tracks where the employee 

11 performs duties on a daily basis, data from the time 

12 and attendance system shall be used instead of the 

13 employee’s determination as set forth in paragraph 

14 (1). 

15 (d) DEFINITIONS AND SPECIAL RULES.—For pur16 poses of this Act: 

17 (1) DAY.— 

18 (A) An employee will be considered present 

19 and performing employment duties within a 

20 State for a day if the employee performs the 

21 preponderance of the employee’s employment 

22 duties within such State for such day. 

23 (B) Notwithstanding subsection (d)(1)(A), 

24 if an employee performs material employment 

25 duties in a resident state and one nonresident 


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1 state during one day, such employee will be con2 sidered to have performed the preponderance of 

3 the employee’s employment duties in the non4 resident state for such day. 

5 (C) For purposes of subsection (d)(1), the 

6 portion of the day the employee is in transit 

7 shall not apply in determining the location of 

8 an employee’s performance of employment du9 ties. 

10 (2) EMPLOYEE.—The term ‘‘employee’’ shall be 

11 defined by the State in which the duties are per12 formed, except that the term ‘‘employee’’ shall not 

13 include a professional athlete, professional enter14 tainer, or certain public figures. 

15 (3) PROFESSIONAL ATHLETE.—The term ‘‘pro16 fessional athlete’’ means a person who performs 

17 services in a professional athletic event, provided 

18 that the wages or other remuneration are paid to 

19 such person for performing services in his or her ca20 pacity as a professional athlete. 

21 (4) PROFESSIONAL ENTERTAINER.—The term 

22 ‘‘professional entertainer’’ means a person who per23 forms services in the professional performing arts 

24 for wages or other remuneration on a per-event 

25 basis, provided that the wages or other remuneration 


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1 are paid to such person for performing services in 

2 his or her capacity as a professional entertainer. 

3 (5) CERTAIN PUBLIC FIGURES.—The term 

4 ‘‘certain public figures’’ means persons of promi5 nence who perform services for wages or other remu6 neration on a per-event basis, provided that the 

7 wages or other remuneration are paid to such person 

8 for services provided at a discrete event in the form 

9 of a speech, similar presentation or personal appear10 ance. 

11 (6) EMPLOYER.—The term ‘‘employer’’ has the 

12 meaning given such term in section 3401(d) of the 

13 Internal Revenue Code of 1986 (26 U.S.C. 3401(d)) 

14 or shall be defined by the State in which the duties 

15 are performed. 

16 (7) STATE.—The term ‘‘State’’ means each of 

17 the several States of the United States. 

18 (8) TIME AND ATTENDANCE SYSTEM.—The 

19 term ‘‘time and attendance system’’ means a system 

20 where the employee is required on a contempora21 neous basis to record his work location for every day 

22 worked outside of the state in which the employee’s 

23 duties are primarily preformed and the employer 

24 uses this data to allocate the employee’s wages beVerDate Nov 24 2008 04:06 Apr 28, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2110.IH H2110

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1 tween all taxing jurisdictions in which the employee 

2 performs duties. 

3 (9) WAGES OR OTHER REMUNERATION.—The 

4 term ‘‘wages or other remuneration’’ shall be defined 

5 by the State in which the employment duties are 

6 performed. 

7 SEC. 3. EFFECTIVE DATE. 

8 This Act shall be effective on January 1, 2011. 

Æ 


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