The Department denied a gross receipts tax refund claim for December 2016 to December 2017 and a second claim covering periods January 2018 to June 2019. The Taxpayer claimed its monthly subscription fees from New Mexico customers were exempt under Section 7-9-13, NMSA 1978. (1989, substantially amended 2020). Under Section 7-9-13.1(A), NMSA 1978, the Taxpayer’s receipts must be from selling services performed outside New Mexico and the product of the service must be initially used in New Mexico. The Hearing Officer held that “the service” the Taxpayer was selling was the delivery of viewable television programming to its New Mexico customers. Further, Taxpayer’s costs for providing the services are, for the most part, incurred out-of-state. The out-of-state activities were “incidental” to the service being sold. The Hearing Officer held that apportionment under 3.2.1.18(C) NMAC is permitted only when a taxpayer actually performs discrete parts of a single service both within and outside New Mexico. The regulation requires more than the existence of out-of-state infrastructure or support functions. Even though the Taxpayer’s facilities are located outside of New Mexico, the subscription is used by individuals located in New Mexico. The Hearing Officer also found the cost accounting methodology used by the Taxpayer was invalid and did not calculate the costs of performing services for each individual New Mexico customer. The Hearing Officer determined that for gross receipts to be exempt under Section 7-9-13.1 NMSA 1978, the service must be performed outside of New Mexico, and the product of the service has to initially be used outside of New Mexico. As the service concludes where the subscriber gains access to the service the exemption does not apply and that Regulation 3.2.1.18(C) NMAC for apportionment does not apply, the protest was denied.
