Eduardo Aguirre



On December 13, 2018, the Department assessed the Taxpayer for $31,148.91 in gross receipts tax, penalty, and interest. On January 28, 2019, the Taxpayer filed a formal protest of the assessment. The issue to be decided in the case was whether the Taxpayer, who lived and worked in Texas, was liable for gross receipts tax for the sales of wooden shipping pallets sold to his customers who did business in New Mexico. These customers used the pallets as part of their packaging when selling products to their customers. Though the Taxpayer’s customers were doing business in New Mexico, the evidence showed that the sales had clearly taken place in Texas and that the customers had taken possession of the pallets in Texas. The Taxpayer did not deliver any of the pallets and instead the buyers picked up the pallets in Texas. As testimony was presented in the hearing the Department eventually conceded that since the evidence supported that the sales of the tangible personal property took place entirely in another state the receipts were not taxable. Gross receipts tax is levied on individuals engaged in business in New Mexico but the Department was unable to establish that the Taxpayer had conducted business in the state. The Taxpayer argued too that the Department had unfairly delayed its response to the protest and had not scheduled the hearing quick enough. The Hearing Officer responded to this argument by citing a case which determined that, though the statute provided a timeframe for when a hearing should take place, it did not provide a consequence for the failure of the Department to meet that timeframe. In the end, the Hearing Officer decided that since the Taxpayer had prevailed on the merits of the protest, the timeliness of the hearing was moot and did not need to be decided. Since it was established that the Taxpayer was engaging in business in Texas and not subject to New Mexico gross receipts tax, the Hearing Officer order the assessment to be abated in full and the protest was granted.