Wayne Gaede

01-27

The Taxpayer was engaged in marketing and promoting the sale of long distance telephone services for Excel Communications. This was a multi-level marketing program in which the Taxpayer made direct sales of long distance telephone services, and recruited new sales representatives for Excel. The Taxpayer was compensated on a cash bonus and commission basis.  In April 2000, the Department assessed the Taxpayer for gross receipts tax, penalty and interest on his receipts. The Taxpayer protested, raising the following issues: 1) was the Taxpayer liable for gross receipts tax on sales commissions measured by the long-distance telephone charges paid by customers of the Taxpayer’s sales representatives; 2) was the Department’s method of calculating the percentage of commissions subject to gross receipts tax reasonable; and 3) did Excel’s payment of gross receipts tax on its receipts from the sale of long-distance telephone services relieve the Taxpayer from liability for gross receipts tax on commissions measured by those receipts.  Held:  1) the Taxpayer’s commissions represent receipts from performing marketing services in New Mexico and are subject to gross receipts tax; 2) the method of calculating the Taxpayer’s in-state receipts was reasonable; and 3) the Taxpayer failed to present any evidence to support his claim that Excel paid gross receipts tax on long-distance telephone charges. Protest denied.