Brent’s HVAC & Plumbing

15-33

In 1998, the owner of the Taxpayer began doing business as a corporation.  That corporation was an air conditioning business that installed air conditioning units and ductwork for builders in new construction projects, as well as doing some air conditioning maintenance work.  This business purchased three large pieces of equipment, which were all used for fabricating and installing ductwork.  As new construction began to slow with the downturn of the economy, the business began to suffer and was eventually closed in late 2010, but the actual last day of business was March 31, 2011.  At that time, the equipment that had been purchased by the business was worth approximately $4000.00.  At the time of the business closure, it had an outstanding gross receipts tax liability.  The business’ owner filed bankruptcy, and attempted to sell the equipment, but was unable to.  The owner’s home and shop, where the business operated out of, were foreclosed on by the bank.  After shutting down the air conditioning business, the owner began to look for other work.  Eventually the owner, who was trained as a plumber, began a new business.  The owner is the sole proprietor of the Taxpayer.  The Taxpayer provides plumbing services for individual homeowners, and also does occasional air conditioning maintenance.  The Taxpayer retained the equipment from the previous business, but does not use it for this new business.  The Taxpayer has one customer in common with the air conditioning business, who is a personal friend of the owner.  The Taxpayer also has one employee who was previously an employee of the air conditioning business.  On March 23, 2012, the Department assessed the Taxpayer as a successor in business for gross receipts tax, penalty and interest for the tax periods from February 28, 2010 through March 31, 2011.  On April 20, 2012, the Taxpayer filed a formal protest to the assessment.  The issue to be decided is whether the Taxpayer is liable as a successor in business for the assessed amounts.  Pursuant to Section 7-1-61 NMSA 1978, a successor in business is required to pay the tax for which the acquired business was liable.  Several factors are used in determining a successor in business, and if a single one is present, the presumption is that there is a successor in business.  The Taxpayer met more than one of the requirements set forth, and was determined to be a successor in business.  The Department also argued that the Taxpayer was a mere continuation of the air conditioning business because the owner is the same, they share a common customer, a common employee, and both engage in some air conditioning maintenance work.  Additionally, the Taxpayer clearly intended to be engaged in some air conditioning work because “HVAC” is included in its name.  The Taxpayer argued that the key factor should be the substance of its work, which is primarily plumbing.  The Hearing Officer agreed that the Taxpayer is not a mere continuation of the air conditioning business.  Due to the Hearing Officer finding that the Taxpayer was a successor in business, but not a mere continuation of the previous business, it was ordered that the Taxpayer could discharge the assessment by paying the Department the full value of the equipment that was transferred, which is approximately $4000.00.  The Taxpayer’s protest was granted in part and denied in part.