Show Subnavigation

Orders are written statements to implement a decision after a Department administrative hearing. 

A taxpayer may file an appeal with the New Mexico Court of Appeals within 30 days after the date of the decision. Appeals are decided based on the evidence and arguments presented at the administrative hearing. 


All Posts > 2018

12/03/2018

18-42

Advanced Environmental Solutions Inc

On June 14, 2016, the Department issued an assessment in the amount of $82,069.74 for gross receipts tax, penalty, and interest. On September 7, 2016, the Taxpayer filed a formal protest of the assessment. The Department agreed later to abate a small portion of the tax when it determined that the receipts from these services were performed in Colorado. The Taxpayer provides the removal of hazardous materials under contracts with the Drug Enforcement Administration. The main issue presented in this protest was whether the Taxpayer provided services in New Mexico and, if it did, was it entitled to a deduction. The services in question were first requested by the federal agency in Virginia, performed in various sites around New Mexico, and then completed as the hazardous materials were disposed of by a third party out-of-state. The Taxpayer contended that since the service was only partially performed in New Mexico and that the most critical component of the service was done outside the state the receipts should not be taxable. The Taxpayer explained that it was contractually obligated to obtain a Certificate of Disposal verifying that the materials were properly disposed of in order to complete the service and this had to be obtained outside the state. The Hearing Officer, however, determined that this component of the service was not required by the contract to be performed outside the state, and still amounted to a service being performed in New Mexico. The Taxpayer also argued that it should be able to deduct the receipts under Section 7-9-57 NMSA 1978 as services sold to an out-of-state buyer. But the statute states the deduction is not available if the buyer “makes initial use of the product of the service in New Mexico.” The Hearing Officer determined that the primary product of the service, having the hazardous materials removed from the locations in New Mexico, was primarily received within the state, though some benefit was received partially by the agency outside the state. This having been established, the Hearing Officer ordered that the services took place in New Mexico and that the Taxpayer was not entitled to a deduction and the protest was denied.


11/30/2018

18-41

High Desert Recovery, LLC

On November 28, 2016, the Department assessed the Taxpayer as a successor in business to West Rock, Inc for an amount of $127,764.92 in tax and $143,594.85 in interest. On December 8, 2016, the Taxpayer filed a formal protest letter. The main issue in the protest was whether the Taxpayer was a successor in business to West Rock, Inc, a company that repossesses cars, and therefore is responsible for the tax. Mr. Daniel Brown, the owner of High Dessert Recovery, LLC, was also the owner and operator of West Rock. The company had gone out of business when its sales dropped off and was no longer able to meet its liabilities. The Department contended that the Taxpayer was a successor in business because it was operated by the same person, involved in the same type of business, had taken ownership of one of its assets, and was using one of its same employees. It also shared many of the same customers and for a time used the same address. The Taxpayer argued that it should not be considered a successor since it did not purchase the company and did not share all the same shareholders. The Hearing Officer, however, agreed with the Department, determining that several factors followed by the Department provided in Regulation 3.1.10.16 NMAC had been met, any one of which would have defined the company as a successor in business. Section 7-1-61 (B) states that “tangible and intangible property used in any business remains subject to liability for payment of the tax due,” even if the business is transferred to a new owner. However, West Rock’s assets were not liquidated and were simply put in storage and, according to Mr. Brown, were not worth but a few thousand dollars. In its final tax return, however, West Rock listed its tangible property alone as valued at more than $300,000. The Hearing Officer concluded, that Mr. Brown was simply avoiding the tax liability of the previous business and attempting to keep possession of its assets for later use in his current business. This having been decided, the Hearing Officer ordered the assessment to be paid by the Taxpayer and the protest was denied.


11/29/2018

18-40

Dr Sistar Yancy and Robert D Townsend

On November 13, 2017, the Department assessed both Robert D Townsend and Dr. Sistar Yancy in the same amount, $7,619.15, for withholding tax, penalty, and interest. On December 12, 2017, the Department received Mr. Townsend’s formal protest of the assessment, and on January 10, 2018, received the protest of Dr. Yancy. The Taxpayer’s were assessed because both were on the board of directors of the Eastern Plains Housing Development Corporation, a non-profit organization dedicated to providing access to affordable housing. The main issue presented in this protest was whether board members of a non-profit corporation can be liable individually for unpaid withholding taxes of the organization. The Department had assessed the Taxpayers because they were listed as officers of the organization on file with the Secretary of State and had signed the employees pay checks. Though both agreed that they had signed checks for the organization, they argued they were not aware of the finances of the organization and had only signed for payments at the direction of the executive director. The evidence showed that the executive director never had all checks signed by one individual and so neither was aware of whether withholding tax had been paid to the state. The Taxpayers also argued that since the organization was a corporation, this protected its individual members from being responsible for its liabilities. The Hearing Officer concluded, however, that the case entirely depended on whether the Department could assess the Taxpayers as employers. Section 7-3-2(C) defines an employer as “the person having control of the payment of wages,” and so, the Hearing Officer determined, an employer cannot be interpreted as simply the individual who signs the checks. The employer is the person responsible for actually paying the wages and, moreover, who is in control of deducting the withholding and should be paying the tax. This having been established, the Hearing Officer ordered the assessments abated and granted the protest.


11/21/2018

18-39

Estate of Richard and Diane Shoudt

On May 15, 2017, the Department filed a Notice of Claim of Lien against the Taxpayers for a total of $29,776.04 for CRS taxes owed. On August 1, 2017, the Taxpayer filed a formal protest letter. The issue to be decided in the protest was whether the Department followed the requirements set out in law when it filed the lien against the Taxpayers. In July of 2012, the Department issued 42 assessments for gross receipts tax to a business called Special Events Marketing Tal. Richard Shoudt, who is now deceased, was registered as the owner of the business, but no name appeared on the assessments other than the name of the business. The Department argued that since the business was registered by the individual later named in the lien this sufficiently followed procedure for filing the lien. The Department understood this individual to be the sole proprietor of the business and responsible for the liability. The Hearing Officer, however, disagreed, explaining that the requirements to file a lien are detailed carefully in the statutes. The notice of lien must identify the taxpayer who is liable, must identify the dates that the tax became due, and must state that New Mexico claims a lien for the amount due on an assessment. Section 7-1-3 NMSA 1978 states that the lien be issued to “a person to whom an assessment has been made.” This was not done in this case. The assessments were issued to a business which showed a CRS number but no name. Carefully identifying the Taxpayer, the Hearing Officer said, is an important and necessary step before the Department may pursue collection. An assessment provides a procedural safeguard to Taxpayers and allows them to protest. Since this was done in this case, the Hearing Officer order the lien released and the protest was granted.


11/21/2018

18-38

Ready Tech-Go LLC

On September 6, 2012, the Department assessed the Taxpayer $368,428.10 in gross receipts tax, penalty, and interest for the periods from March 31, 2004 to March 31, 2011. On December 13, 2012, the Taxpayer’s formal protest was received by the Department. The Hearing in the case was postponed through a combination of inadvertent delays and multiple motions for continuance and rescheduling by the Taxpayer and the Department. The Taxpayer’s subsidiary, RTG Medical, is a medical staffing agency that is physically located in Nebraska and provides medical professional staffing to medical facilities across the country, several of which are in New Mexico. The main issue in this protest was whether the receipts the Taxpayer received from providing medical staffing services in New Mexico were in a disclosed agency capacity and therefore exempt from gross receipts tax. Section 7-9-3.5(A)(3)(f) NMSA 1978 states that excluded from gross receipts are “amounts received solely on behalf of another in a disclosed agency capacity.” The Taxpayer argued they were acting in this capacity when they provided services to their clients. The Hearing Officer explained, however, that Regulation 3.2.1.19(C)(1) NMAC gives clarity to what disclosed agency means, stating that “an agency relationship exists if a person has the power to bind a principal in a contract with a third party.” This would mean the employee, if they were not paid by the Taxpayer, could seek payment from the client of the Taxpayer, which was not the case here. The Taxpayer provided evidence of an indemnification clause in the client’s contract, as well as results from a survey they took of their own employees, many of who had assumed that the company they were working for was an agent of the medical facility. But these considerations failed to persuade the Hearing Officer. The Taxpayer simply could not compel their client to take on their own liabilities. The Taxpayer also argued that, since the company is not physically located in New Mexico the receipts could be deductible. But the Hearing Officer determined that because the services were performed in New Mexico by their own employees these services were taxable. The Hearing Officer decided that the decision not to report the receipts fell under the definition of negligence and so penalty was appropriate. For all these reasons the Hearing Officer ordered that the receipts were subject to gross receipts tax and the protest should be denied.


11/20/2018

18-37

New Mexico Depot

On October 12, 2017 the Department issued assessments to New Mexico Depo totaling $16,700.24 in gross receipts tax and penalty for periods January 1, 2012 through December 31, 2012. An assessment was also issued on this date to Haute Mountain Girl, an entity also owed by the Taxpayer, for an amount totaling $29,009.95, but the Department later conceded that this assessment had been intended for New Mexico Depo also, and because of this, abated this assessment entirely. On January 9, 2018, the Taxpayer filed a protest of the assessments. The primary issue in this protest was whether Ana Koeblitz, who initially registered New Mexico Depo as sole proprietorship, should be personally liable for gross receipts tax the entity incurred during the time when it was later organized as a limited liability company. The Taxpayer did not update its business tax registration with the Department when it reorganized. The Taxpayer stated that it did this because it was relying on information provided in publication, FYI-105, that it interpreted as suggesting that only corporations needed to re-register with the Department and not other types of entities. This portion of the publication, the Hearing Officer pointed out however, came in a frequently asked question that concerned a business that was a sole proprietorship and then became a corporation. The Hearing Officer determined there was no reason to think objectively this statement meant that an LLC did not need to change registration. The Taxpayer also suggested that it was told by Department employees the registration did not need to be changed but could not remember the names of these individuals. The Taxpayer argued that the registration, which was later updated in 2018, should be retroactive, but provided no legal support for this. The Hearing Officer explained that it was vital for the Department to identify the Taxpayer specifically. The identity of the Taxpayer affects who is responsible for its tax obligations and how the Department will track the Taxpayer’s reporting. If the Taxpayer had changed the registration it would have changed who was responsible, but it did not do this. Therefore, the Hearing Officer ordered that New Mexico Depo, the sole proprietorship, is responsible for the liability and the penalty assessed is correct.


11/20/2018

18-36

Wager Equipment Co

On July 11, 2018, the Department issued seven assessments to the Taxpayer totaling $47,047.19 of withholding penalty for the late filing of returns for periods ending November 30, 2017 to May 31, 2018. On August 2, 2018, the Taxpayer filed a timely protest of the Department’s assessments requesting abatement of penalty because a change in staff had caused the returns not to be filed. The main issue of this protest concerned whether the Taxpayer was negligent in not filing the withholding returns. The Taxpayer had made payments for each of the periods in question but had not filed the returns reporting the withholding. The Taxpayer explained the reason for this was that a veteran employee whose responsibility it was to file the returns had retired in November. When the Taxpayer recognized that more training would be required for the replacement employee, the Taxpayer decided to extend the veteran employee’s employment part-time so that she could train and be available for questions. This arrangement, the Taxpayer argued, was evidence of the good-faith attempts to responsibly meet their tax obligations. They also argued they had received nothing from the Department saying they had not filed. The Department responded by explaining that the online TAP system would show an overpayment in each period that had a payment but no return. The Department also argued that the Taxpayer had made no effort to contact the Department nor had it contacted a CPA for advice, which the Taxpayer admitted. The Hearing Office noted that Section 7-1-69 (B) NMSA 1978 provides an exception for penalty for “a mistake of law made in good faith and on reasonable grounds,” but there was no evidence to support a misunderstanding of the law as the Taxpayer did not try to consult with Department representatives. The Taxpayer did, however, meet the definitions of negligence under Regulation 3.1.11.11 NMAC, particularly “inaction by taxpayer where action is required.” For these reasons, the Hearing Officer denied the protest request and ordered that the penalty was properly assessed.


11/02/2018

18-35

Harris Corporation

On April 7, 2017, the Department denied three different applications from the Taxpayer for the High-Wage Jobs Tax Credit, covering periods from 2012 through 2016 and each claiming credits in amounts over one million dollars. The sole reason for the denials provided by the Department was that the claims were untimely. On July 3, 2017, the Taxpayer executed a protest of the denials. The key question in the protest was which law, the 2013 High-Wage Jobs Tax Credit Act or the 2016 amended version of the law should be followed in determining whether these applications were filed timely. The 2013 law stated that the credit could be claimed no later than one year from the end of the calendar year in which the final period closed, and therefore permitted the Taxpayer’s application through the end of 2017. The change made in 2016 established new deadlines for submissions, requiring that they be made annually for all qualifying periods that closed during the calendar year for which the application was made. But the Hearing Officer concluded that if the new law was followed in this way with these applications the rules would have changed retroactively when the clear intent of the legislature was creating requirements for future applications. If the earlier law was followed, the Taxpayer’s application would be eligible. The Department then argued that the Taxpayer was ineligible because it was incorporated in another state. But as he had concluded in D&O 18-33, the Hearing Officer said the Department was misreading Section 7-9G-1 (B) NMSA 1978 which states “The purpose of the high-wage jobs tax credit is to provide an incentive for urban and rural businesses to create and fill new high-wage jobs in New Mexico.” As the Hearing Officer made clear in the earlier D&O, this serves only as an explanation of the credit’s purpose and not a restriction on where the business should be located. The Department also argued that the Taxpayer lacked evidence to establish its headcount was increasing from year-to-year, but the Hearing Officer said this too should follow the 2013 law that does not measure headcount against the immediately adjacent period. For all the foregoing reasons, the Hearing Officer ordered the protest granted and allowed the credits to be approved.


10/24/2018

18-33

Old Dominion Freight Lines

On June 23, 2017 the Department denied the Taxpayer’s claim for the high-wage jobs tax credit for $324,214.83 for 21 employees over 42 qualifying periods. On September 17, 2017 the Taxpayer filed a formal protest letter. The issue to be decided in the case was whether the Taxpayer was eligible for the credit. The Department began by arguing that the credit was intended only for New Mexico businesses making the Taxpayer ineligible as it is incorporated and based in another state. But the Hearing Officer determined that this was a misreading of the statute. Section 7-9G-1 (B) NMSA 1978, which the Department sited in support of its argument, states “The purpose of the high-wage jobs tax credit is to provide an incentive for urban and rural businesses to create and fill new high-wage jobs in New Mexico.” The Hearing Officer concluded that this is not a restriction that only New Mexico businesses can claim the credit, but only a statement that the credit encourages job creation in the state. The Department then argued that the Taxpayer did not produce the substantial evidence to support the claim as required by statute. Here the Hearing Officer agreed with the Department. Section 7-9G-1 (M) NMSA 1978 states that the eligibility of the credit hinges on the percentage of sales to persons outside of New Mexico. But the Taxpayer, despite its assertions that most of its clients were located outside the state, could only produce one invoice and a revenue report that was created one week prior to the hearing as evidence. The Taxpayer also did not provide any further documentation on its employees, another necessary requirement to claim the credit. The Taxpayer having failed to provide the substantial evidence as required by statute to prove it was entitled to the credit, the Hearing Officer ordered the Taxpayer’s protest denied.


10/22/2018

18-32

Kevin D Fenner

On February 4, 2016, the Department issued a Notice of Claim of Tax Lien to the Taxpayer for personal income taxes for all tax years between 2003 and 2010. The liability in 2003 was assessed in 2007, with all other years assessed in 2013. The Taxpayer protested this tax lability in 2014 and which was subsequently determined in the Department’s favor in D&O 14-39. The Taxpayer then appealed D&O 14-39 to the New Mexico Court of Appeal which affirmed the decision. In 2017 the Department initiated warrant levies against assets of the Taxpayer to collect the outstanding liability. On October 24, 2017, the Taxpayer sent separate letters protesting a notice of levy. The Hearing Officer began by stating that the taxability of the liability had been settled in the previous protest and the current hearing was intended only to decide the merits of the several other issues brought by the Taxpayer in his most recent protest. The first point addressed was whether the Department’s attorney had acted in bad faith, but no evidence was provided by the Taxpayer to support this accusation. Next was whether the Department acted properly when serving levies to seize the Taxpayer’s property. The Hearing officer sited Section 7-1-32 NMSA 1978 in explaining the threshold that must be met to allow the Department to take such an action. The law states that there needs to be evidence of a liability and this was shown by the many assessments and demands for payments. The Taxpayer then claimed that the notices sent to his mailing address instead of his physical address prevented him from receiving effective notice of the actions. But the Hearing Officer noted that no change of address form had been filled out as required by statute and that no mail was returned by the Post Office to suggest that the mailing address was wrong. The next issue brought by the Taxpayer was whether the Department is time barred from collecting the liability under Section 7-1-19 NMSA 1978 which states that no action may be taken by the Department beyond ten years from the date of an assessment. The evidence, however, clearly showed the collection actions were taken well within ten years from the time the Taxpayer was sent notices. The Taxpayer also argued that the rule that money or property totaling $1,000 is exempt from levy should have prevented the Department from taking $1,110.07 from one of his accounts. This statute, Section 7-1-36A NMSA 1978, the Hearing Officer explained, exempts up to a total value of $1,000 of a Taxpayer’s total assets and not this amount from just one account. The Hearing Officer, therefore, determined that the Department had acted properly in acting to collect an outstanding liability from a delinquent taxpayer and ordered that the protest be denied.


10/18/2018

18-31

New Mexico Food Distributors Inc & Affiliates

On July 16, 2018, the Department assessed the Taxpayers, NM Foods Distributors, Inc, and affiliated entities Los Curates Restaurant and Little Anita’s Mexican Food in separate assessments for gross receipts and withholding tax penalty as well as interest for the CRS filing period ending May 31, 2018. There were nine different assessment letters of varying amounts, the largest penalty of $495.15 being for gross receipts tax. The Department received the protest for all these assessments on July 18, 2018. The taxpayer did not dispute the fact they owed tax but requested an abatement of the penalty for late filing and payment. The Taxpayers explained that in June of 2018 an accounting assistant whose duty it was to file and pay the tax, was diagnosed with T-Cell Lymphoma, left work to receive treatment, and died 16-days later due to complications. While this was happening in the week the gross receipt tax was due, an accounting manager who would have been the back up to file and pay the tax was on vacation. These events were sudden and unexpected and because of this the taxpayers argued they were not negligent in filing and paying the tax late. In response the Department first explained that its GenTax software had incorrectly calculated withholding penalty which should have been entirely for gross receipts. The Department then reasoned that since the Taxpayers used a payroll service to pay the withholding tax on time the same firm should have been given instruction to pay the gross receipt tax. The Hearing Officer, however, found this argument wholly unconvincing, stating that this case was a “quintessential example” of when Regulation 3.1.11.11 (B) NMAC requires the abatement of penalty. This regulation states that non-negligence is shown when “the taxpayer, disabled because of injury or prolonged illness, demonstrates the inability to prepare a return and make payment and was unable to procure the services of another person to prepare a return because of the injury or illness.” This having been established the Hearing Officer granted the Protest and ordered that all penalty be abated.


10/03/2018

18-30

Thomas W and Linda L Krumland

 On August 1, 2016, the Department assessed both Taxpayers in two assessments for gross receipts tax, penalty and interest for the CRS filing periods ending June 30, 2009 through June 30, 2015. On September 8, 2016 the taxpayers filed a formal protest through their accounting firm. Delayed by various continuances, requests for admissions and interrogatories, and other motions the hearing eventually occurred on May 29, 2018. The primary issue in this protest concerned whether a partner’s income from “guaranteed payments” and reported by the partnership on IRS form Schedule K-1 are subject to gross receipts tax. The Department assessed only receipts that were termed guaranteed payments and determined that these payments were made in consideration of services. The Taxpayers argued that they saw themselves only as owners of the businesses and that the activities performed were in keeping with that of an owner and not an employee or a contractor providing services. They also claimed they were entirely ignorant of the implications of reporting these distributions as guaranteed payments. The IRS defines guaranteed payments as being for compensation of services or capital without regard for the income of the partnership. Though there are taxable benefits to characterizing the payments in this way, the Hearing Officer said that he would interpret that these payments were appropriately characterized as the weight of evidence suggested. The Taxpayer also argued that the receipts might be exempt under Regulation 3.2.1.14 (S) (4) NMAC, but the Hearing Officer determined that this regulation was inappropriate as it applied to services provided to third parties. However, after the Hearing and before a decision was made in the protest, the Taxpayers noted the proposal of an amended regulation that would favor their position and requested that the decision in the protest be held until the new rule might be approved and decide the matter. The amended regulation specifically states that guaranteed payments are not gross receipts. The Hearing Officer decided to allow this request and then made the determination, after the amendment to 3.2.1.14 NMAC was approved, that this Regulation could be applied in this case, not he said because a new law was being retroactively applied but because it was instead reinterpreting the preexisting law and seeking to clarify it. The application of the rule being allowed, the Hearing Officer ordered that the guaranteed payments were not gross receipts and not subject to gross receipts tax.


09/14/2018

18-29

Precheck Inc

On November 17, 2017, the Department notified the Taxpayer that it reviewed and denied its claim for CRS refund in the amount of $178,341.46 for periods in years 2011 to 2015. On November 20, 2017 the taxpayer submitted a formal written protest of the Department’s refund denial. On October 24, 2017 the Taxpayer had applied for a refund that requested the amount of the High Wage Jobs Tax Credit which had been previously only partially approved. The Taxpayer had sought a credit for $186,140.03 for the same periods and was only partially approved in the amount of $7,798.57. Though the Taxpayer had received notice of the partial denial of the tax credit on June 12, 2017, the Taxpayer did not protest the denial within the 90 days after the date of the notice as required by Section 7-1-24, NMSA 1978. Instead, the Taxpayer filed an application for refund to claim the remaining amount of the High Wage Jobs Tax Credit and then protested the denial. The sequence of these events was key to the decision of the Hearing Officer. After having failed to protest the partial denial, the Hearing Officer determined that the Taxpayer was claiming the same credit again only to later protest the decision. Though Section 7-1-26 NMSA 1978 refers to protesting the claim for “a credit,” this does not specifically mean a credit like the High Wage Jobs Tax Credit and is not intended to offer a second opportunity to protest the same denied credit. Because of these conclusions, the Hearing Officer ordered that the Taxpayer did not file a timely written protest of Department’s refund denial and the claim for refund is denied.


09/04/2018

18-28

Diamond T U.S. Mail Service Inc

On August 4, 2017 the Department assessed the Taxpayer gross receipts tax, penalty and interest for the CRS reporting periods ending April 30, 2013 to December 31, 2016. On August 28, 2017, the Department received the Taxpayer’s timely protest of the assessment. The taxpayer transports bulk mail for the United States Postal Service under a Highway Contract Route, transporting mail from and to Lubbock, Texas and to various delivery points in New Mexico. This protest involved deciding the extent to which the Taxpayer was entitled to a deduction from gross receipts for these deliveries under Section 7-9-55 NMSA 1978 as transactions in interstate commerce. The taxpayer argued that all the receipts were in interstate commerce because its trucks crossed state boundaries to and from New Mexico. The Hearing Officer, however, found this argument unconvincing as many of the trips were made entirely in New Mexico. The Department argued that the amount of the deduction should be measured by employing Regulation 3.2.213.10 B NMAC which provides that a person who holds a contract for the transportation of United States mail from points within New Mexico to other points outside of New Mexico may deduct a portion of gross receipts which were derived from transactions in interstate commerce. The statute specifies the method on which a deduction is to be calculated and importantly defines “delivery point” as any point where mail is required to be delivered under the contract. After reviewing the information provided in the Highway Contract Route, the Hearing Officer determined that the calculation made by the auditor, which had concluded that the total number of delivery points in Texas was 12.5 percent, had not been calculated correctly. Allowing for the change in the number of delivery points, the Hearing Officer found that Taxpayer’s deduction from receipts should be 17 percent rather than the 12.5 percent originally calculated. Therefore, the Taxpayer’s protest is granted in part and denied in part and, allowing for the increased deduction, the Taxpayer is ordered liable for the adjusted amount of tax, penalty and interest.


08/29/2018

18-27

Active Solutions Inc

On March 21, 2017 the Department assessed the Taxpayer for tax, penalty and interest for the CRS filing periods ending January 31, 2010 through February 29, 2016. The taxpayer filed a formal protest on June 19, 2017. The chief issue in this protest was whether receipts the Taxpayer derived from providing Family Living Services under the Developmental Disabilities Medicaid Waiver Program were excluded from gross receipts tax. The taxpayer initially argued that it had not been assessed by the Department within the limitations specified in Section 7-1-18 (A) NMSA 1978 which states an assessment must be sent within three years from the end of the calendar year in which the tax was due. The Hearing Officer however cited the exception to this rule found in Section 7-1-18 (C) NMSA 1978 which explains that if a taxpayer understates by more than twenty-five percent the amount of liability for any tax the Department may assess within 6 years from the end of the calendar year in which the tax was due. The taxpayer then argued that the amounts were received solely on behalf of another in a disclosed agency capacity, stating that it was reimbursed for approved expenditures incurred on the state’s behalf in furthering specific state programs. Regulation 3.2.1.19 (C) (1) NMAC provides an exception for reimbursement when acting in a disclosed agency capacity. However, the Hearing Officer found that the Taxpayer’s evidence clearly established that it would not satisfy its own obligations to its direct service providers until after it had received payment from the state and therefore was not being reimbursed. Because of this the Hearing Officer concluded that the Taxpayer failed to establish that it incurred those expenditures in a disclosed agency capacity. The evidence also failed to establish any authority for the Taxpayer to bind the state to an obligation created by an agent. At no place in the Taxpayer’s provider agreement with the state, the Hearing Officer found, or within any cited statute or regulation, does the state express any grant of authority consistent with the creation of a disclosed agency relationship. The totality of the evidence, the Hearing Office decided, established that payments to the Taxpayer were not amounts received solely on behalf of another in a disclosed agency capacity and therefore were not excludable from taxable gross receipts. The taxpayer also argued that the receipts should be exempt pursuant to Regulation 3.2.1.12 E – F NMAC which excludes payments to individuals providing foster care, certain caretakers, and home care. The Hearing Officer determined however that none of these designations were applicable to the Taxpayer. Because of these conclusions the Taxpayer’s receipts were decided to be taxable gross receipts. The Taxpayer is liable for accrued interest as well as penalty under the negligence definition found under Regulation 3.1.11.10 (C) NMAC.


Next
View Our Most Popular Pages & Services
Latest News:
Governor Susana Martinez

Governor Susana Martinez

Learn more about governor Martinez
Secretary Demesia Padilla

Secretary Demesia Padilla,CPA

Learn more about secretary Padilla

Online Services

Find an Online Service to Serve Your Needs

Taxation and Revenue New Mexico

1100 South St. Francis Drive
Santa Fe, NM 87504
(505) 827-0700

TRD Home          Privacy & Security          Site Policies          Accessibility/Non-Discrimination Statement          
About Us          Contact Us      Site MapLink to New Mexico Tax and Revenue Facebook Page

call us E-Mail Contact Us