Marc A. Gelinas



On March 17, 2017, the Department assessed the Taxpayer for gross receipts tax, penalty and interest for the reporting periods starting January 1, 2010 and ending December 31, 2010. The Taxpayer filed a formal protest with the Department on June 5, 2017. During the time at issue, the Taxpayer was a salesperson selling implantable medical devices, such as prosthetics for knees, hips and shoulders. The Taxpayer’s income was based on commissions from his sales and was reported on IRS form 1099-MISC from the medical devices distributors. When completing a sale the Taxpayer would prepare order forms, the payment of goods was made by the buyer to the manufacturer. Then the manufacturer would pay a portion of the sale price to the distributor, which would then pay the Taxpayer his commission from the sale. The Taxpayer never filed gross receipts reports or made any gross receipts tax payments in relation to this compensation. The assessment was the result of a Schedule C mismatch audit. The Taxpayer argued that the items that were being sold were eligible for the deduction in Section 7-9-73 NMSA 1978 for the sale of prosthetic devices and therefore the commissions would also be deductible under Section 7-6-66 NMSA 1978, which is the deduction of commissions from gross receipts tax. This statute indicates if the receipts are derived from a commission on the sale of tangible personal property that original sale was subject to a deduction the commission would also be deductible. This is further clarified in Regulation HH (6) NMAC. The Hearing Officer indicated that this deduction does not require the use of an NTTC and that the deduction only requires that the originating receipts of the commission were deductible. The Hearing Officer determined that since the original sale that the commission is based on would be subject to a deduction so would the commission that was earned from that sale. The Hearing Officer determined that based on the information above the Department is ordered to abate the assessed gross receipts tax, penalty and interest and the Taxpayer’s protest is granted.