During 1995, the Taxpayer worked as an independent contractor for a company that manufactured computer devices while his wife worked as an independent contractor for an employment agency. Although the Taxpayer was performing services on a manufactured product, his employer gave him a Type 2 nontaxable transaction certificate (NTTC), which applies to the sale of tangible personal property for resale. Neither the Taxpayer nor his wife paid gross receipts tax on their 1995 earnings. The Taxpayers subsequently divorced and the Taxpayer’s wife moved to Texas. In January 1999, the Department sent a letter addressed to the Taxpayer and his former wife notifying them of a limited scope audit of their 1995 gross receipts tax reporting based on the business income reported on Schedule C to their 1995 joint federal income tax return. In May 1999, the Department assessed the Taxpayer and his former wife gross receipts tax, penalty and interest on their 1995 income. The Taxpayer protested the assessment, arguing: 1) he accepted the Type 2 NTTC in good faith and should be allowed to deduct his receipts pursuant to the provisions of Section 7-9-75 NMSA 1978; 2) the tax on his receipts results in double taxation, and 3) he should not be liable for gross receipts tax on his former wife’s earnings. Held: The Taxpayer is liable for gross receipts tax on his 1995 income because he did not have timely possession of an NTTC applicable to the transaction at issue; the gross receipts tax against the Taxpayer does not constitute double taxation; to the extent the Taxpayer’s interest in property that was either community or jointly held property at the time of his divorce can be identified, the Taxpayer is liable for gross receipts tax on the 1995 income of his former wife. Protest denied.
Craig M. Rawlings