On September 9, 2015 the Department assessed the Taxpayer as a successor in business. On October 6, 2015 the Taxpayer filed a timely written protest. The issue to be determined in the hearing was whether the Taxpayer is liable under the assessment as a successor in business to the former company. The Taxpayer renewed its argument that the Department’s violation of the Section 7-1B-8 NMSA 1978 that the protest be granted. During the time at issue the prior company owner was going out of business and the current company owner/the Taxpayer wanted to start her own business doing automobile glass repair. With the help of the former company owner the Taxpayer started her own business. With the assistance of the former company’s accountant the Taxpayer filed for business licenses and taxes. Taxpayer first filed a zero gross receipts tax for December 2014. The former company was still operating and receiving payments in December 2014 and the Taxpayer was conducting business and receiving payments in December 2014 despite reporting zero gross receipts for that month. It was also discovered that the former company and the Taxpayer were providing service to some of the same customers and paying some of the same employees. The Taxpayer continued to do business with customers from the prior business but did not have formal agreements to assume any of the prior business outstanding contracts. Based on Regulation 18.104.22.168 NMAC it was determined by the hearing officer that the Taxpayer is presumed to be a successor in business to the former company due to the Taxpayer first and continuing customers being the goodwill of the former company. Based on the Taxpayers renewed argument the Departments response was that the tardiness of the request and the hearing are not jurisdictional and are not grounds to grant the protest. The Hearing officer determined that the Department was in violation of the statute by failing to refer the protest for hearing within 45 days per Section 7-1B-8 NMSA 1978. However, it was also determined the Departments violation of the statutory time limits for requesting a hearing does not necessitate that the protest be granted. The hearing officer determined that even though the Taxpayer is a successor in business to the former company, it is not liable for penalty and interest but is still liable for the gross receipts tax due. The Taxpayer’s protest is granted in part and denied in part.
Autoglass Technologies, LLC