Ronald Duncan



On October 12, 2018, the Department assessed the Taxpayer for gross receipts tax for periods in 2014 and 2015. On December 28, 2018, the Taxpayer submitted a timely protest of the assessment. The Taxpayer performed dining delivery services in these periods. The Taxpayer argued that a significant portion of the receipts in question were from gratuities, which by regulation are excluded from gross receipts and not taxable. The Taxpayer was able to provide support for this for 2014 but did not have support available for 2015. But the Taxpayer also argued that the delay in scheduling the hearing contributed to him not having the records and that the assessment should be dismissed. By statute the hearing was supposed to have been scheduled within 45 days of the protest acknowledgement letter, but the Department did not schedule the hearing until March of 2021. Because of the length of the delay, the Taxpayer said he had believed that the Department had come to agree with his position and had stopped making attempts to gather records. Though the Hearing Officer was sympathetic with this argument, he determined that the delay in the hearing did not relieve the Taxpayer of the obligation to maintain records. He also concluded that the law also did not allow an assessment to be dismissed because of how long the Department took to take action. This having been determined, the Hearing Officer allowed an adjustment to the assessment where there was support that the receipts were gratuities and denied the request for abatement for the remaining amount of the assessment.