Dennis Champlin


On June 30, 2021, the Department assessed the Taxpayer for gross receipts tax for periods in 2018. On July 6, 2021, the Taxpayer submitted a formal protest of the assessment. The Taxpayer is a painter who occasionally consigned artworks to be sold by an art gallery in Ruidoso. The gallery paid the Taxpayer 50% of the sale of each artwork. The Taxpayer explained that he did not believe he was required to file and pay gross receipts tax because he believed the gallery was to collect tax when the artwork was sold and then file and pay the tax. Under statute, gross receipts tax is imposed on the seller, and regulation makes clear that when property is consigned, both the consignor, the artist in this case, and the consignee, the gallery, are responsible for the receipts from their portion of the proceeds of the sale. The Taxpayer was not able to provide support that the contract with the gallery stated that the gallery would pay all the tax on the sales, and therefore, the Hearing Officer determined, the 50% payment received from the gallery was gross receipts and taxable. The Taxpayer also argued that his sales were only occasional sales and should be exempt. In order the receipts to be exempt from gross receipts tax under statute, the sales would need to be both isolated and occasional, and the Taxpayer would have to not be holding himself out as engaged in business. The evidence showed that the Taxpayer had been selling artwork outside the state as well as in New Mexico, which suggested that he was engaged in the business of selling artwork. This having been decided, the Hearing Officer order the assessment to be paid and denied the protest.