On January 2, 2018 the Department issued a denial of the Taxpayer’s claim for refund in the amount of $14,274.26. On February 27, 2018, the Taxpayer filed a timely protest of the Department’s denial. The Taxpayer is a cosmetology business that provides spaces to independent contractors within its building. The claim for refund was based on receipts it had deducted for rental income received from contractors for the use of the space. The main issue to be decided was whether the rental agreements should be treated as leases and therefore deductible, or licenses and taxable. Generally, a lease is agreement where the property owner gives up possession and use of the property for a definite term and the tenant acquires definitive control over the property. A license is a permission to do something on the land and conveys no interest in the property. A license is typically revocable, personal, paid for on the basis of each use or as a percentage of income from its use, and limited to a specific purpose. The Taxpayer argued the rental agreements with its contractors were leases because they were not revocable and its contractors had control over their spaces. The Taxpayer referenced a Department ruling and a previous case which provided support for this position. The ruling provided indications of when an agreement is a lease or a license and recognized that the property in question had elements of both. Using the indicators provided in the ruling and several other cases cited, the Hearing Officer determine that in the current case the majority of these factors favored the agreement being a license. Though some indicators suggested a lease agreement, such as the responsibility of the lessee for maintenance of the space and the duration of the agreement being more than day-to-day, the majority of indicators pointed to the agreement being a license. The agreement did not restrict access to other individuals and did not provide unrestricted use of the property. The property was not mortgageable or assignable, the contractors paid a percentage of their income for use of the space, and the agreement was limited to a specific purpose. Further, the Hearing Officer interpreted that the contract was indeed revocable because the Taxpayer could terminate the contract for irreconcilable differences with other independent contractors. This having been determined, the Hearing Officer ordered that the Taxpayer had failed to show enough support for the deduction and the protest was denied.
Solutions Salon Inc