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Family Workshop LLC / Jeffrey Burrows



On March 17, 2015, the Department assessed the Taxpayer for workman’s compensation tax, penalty and interest for the tax periods from September 30, 2010 through December 31, 2013.  On March 18, 2015, the Department assessed the Taxpayer for gross receipts tax, withholding tax, penalty and interest for the tax periods from July 31, 2010 through January 31, 2014.  On May 12, 2015, the Taxpayer filed a formal protest.  The Taxpayer does business in New Mexico as a provider of behavioral and mental health counseling services, and has several licensed therapists working as employees or independent contractors.  The Taxpayer has two locations, one in Albuquerque and one in Rio Rancho.  The Taxpayer has contracts with several insurance companies and their subsidiaries for providing counseling services to their customers.  One of the insurance companies had a subsidiary that was responsible for payments for the provision of health services under the state’s Medicaid Program.  The Taxpayer knew that several changes to deductions regarding payments for health care services occurred from 2005 through 2007.  The Taxpayer consulted with an accountant about the changes and was advised that payments made by a health management organization (HMO) or a managed care organization (MCO) could be deducted from gross receipts.  In 2011, some of the Taxpayer’s independently contracted therapists were audited.  They brought the issue to the Taxpayer, who contacted the Department about the therapists’ gross receipts, as well as his own. The Taxpayer indicated that some of the employees did not give him an answer about his gross receipts, but that one told him payments from an HMO were probably deductible.  The Taxpayer understood the subsidiary making Medicaid payments to be an HMO or MCO and deducted the Medicaid payments from his gross receipts.  The Taxpayer reported all of his gross receipts at the Albuquerque tax rate, even though some were for services rendered at the Rio Rancho location, which had a higher tax rate.  An audit of the Taxpayer was completed in early 2015.  The auditor discovered that the Taxpayer had two locations but reported all of his gross receipts at the lower rate of one location.  The auditor worked with the Taxpayer to determine which gross receipts were attributable to which location, and also which were derived from Medicaid payments.  The Department assessed the Taxpayer from gross receipts tax attributable to the Medicaid payments and adjusted the tax rate according to the correct location.  The Taxpayer did not present any argument or evidence at the hearing related to the assessments of workman’s compensation tax or withholding tax or their respective penalties and interest, so the only part of the assessment at issue is the gross receipts tax and the related penalty and interest.  The Taxpayer argued that the statute did not prohibit the deduction of Medicaid payments, that the Department should be estopped from collecting the tax based on his conversations with Department employees, and that the Department improperly assessed him for taxes going back more than three years.  The Department argued that Medicaid payments are not deductible under the statute, and that the assessment can go back as far as six years because the Taxpayer underreported his gross receipts by more than 25%.  The hearing officer found that the Medicaid payments are not deductible based on the language of Section 7-9-93 NMSA 1978, and the assessment could go back six years because the Taxpayer filed reports showing his gross receipts tax as zero, thereby underreporting by 100%.  The hearing officer did order the penalty portion to be abated because the Taxpayer relied on the advice of an accountant and spoke to Department employees about the issue, so he was not negligent.  The Taxpayer was properly assessed for the gross receipts tax and interest, and the assessments for the workman’s compensation tax and withholding tax are presumed correct.  The Taxpayer’s protest was granted in part and denied in part.