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Orders are written statements to implement a decision after a Department administrative hearing. 

A taxpayer may file an appeal with the New Mexico Court of Appeals within 30 days after the date of the decision. Appeals are decided based on the evidence and arguments presented at the administrative hearing. 



11/02/2018

18-35

Harris Corporation

On April 7, 2017, the Department denied three different applications from the Taxpayer for the High-Wage Jobs Tax Credit, covering periods from 2012 through 2016 and each claiming credits in amounts over one million dollars. The sole reason for the denials provided by the Department was that the claims were untimely. On July 3, 2017, the Taxpayer executed a protest of the denials. The key question in the protest was which law, the 2013 High-Wage Jobs Tax Credit Act or the 2016 amended version of the law should be followed in determining whether these applications were filed timely. The 2013 law stated that the credit could be claimed no later than one year from the end of the calendar year in which the final period closed, and therefore permitted the Taxpayer’s application through the end of 2017. The change made in 2016 established new deadlines for submissions, requiring that they be made annually for all qualifying periods that closed during the calendar year for which the application was made. But the Hearing Officer concluded that if the new law was followed in this way with these applications the rules would have changed retroactively when the clear intent of the legislature was creating requirements for future applications. If the earlier law was followed, the Taxpayer’s application would be eligible. The Department then argued that the Taxpayer was ineligible because it was incorporated in another state. But as he had concluded in D&O 18-33, the Hearing Officer said the Department was misreading Section 7-9G-1 (B) NMSA 1978 which states “The purpose of the high-wage jobs tax credit is to provide an incentive for urban and rural businesses to create and fill new high-wage jobs in New Mexico.” As the Hearing Officer made clear in the earlier D&O, this serves only as an explanation of the credit’s purpose and not a restriction on where the business should be located. The Department also argued that the Taxpayer lacked evidence to establish its headcount was increasing from year-to-year, but the Hearing Officer said this too should follow the 2013 law that does not measure headcount against the immediately adjacent period. For all the foregoing reasons, the Hearing Officer ordered the protest granted and allowed the credits to be approved.


10/31/2018

18-34

Phillips 66 Company

On July 16, 2018, the Department assessed the Taxpayer for penalty in the amount of $9,369.03 for late payment of Oil and Gas Severance Tax. On July 20, 2018, the Taxpayer filed a protest explaining that the payment had been late because of delay by the Department. The Taxpayer acknowledged that its payment arrived one day after the due date, June 25, 2018, but asserted the payment was late because of information provided by the Department. The Taxpayer first notified the Department of an error when trying to file their return electronically on June 18, 2018. In response to this notification they received an email from the Department explaining that the problem was being worked on and implying it would be resolved sometime the next day. The Taxpayer was later told to submit an incomplete return omitting the lines causing the error and make the complete payment. The Taxpayer was about to do this on June 22, 2018, when they were contacted by the Department and told to wait on the submission because the problem was close to being solved. At 3:04 pm on that same day the Department sent a message that the Taxpayer could submit the entire correct return, but because the Taxpayer used an ACH payment the funds were not deposited into the Department’s account by the due date. If the payment had been processed before 3 pm, it would have been on time. The Department argued that there were ways of making payment other than the one chosen by the Taxpayer. But the Hearing Officer determined that the actions of the Taxpayer did not meet the definition of negligence, described in Regulation 3.1.11.10 NMAC as “inaction by the taxpayer where action is required.” The Hearing Officer found Regulation 3.1.11.11 NMAC also applicable, which provides for abatement when a taxpayer proves they were “affirmatively misled by a department employee.” The Hearing Officer ordered the Department to abate the penalty and the protest was granted.


10/24/2018

18-33

Old Dominion Freight Lines

On June 23, 2017 the Department denied the Taxpayer’s claim for the high-wage jobs tax credit for $324,214.83 for 21 employees over 42 qualifying periods. On September 17, 2017 the Taxpayer filed a formal protest letter. The issue to be decided in the case was whether the Taxpayer was eligible for the credit. The Department began by arguing that the credit was intended only for New Mexico businesses making the Taxpayer ineligible as it is incorporated and based in another state. But the Hearing Officer determined that this was a misreading of the statute. Section 7-9G-1 (B) NMSA 1978, which the Department sited in support of its argument, states “The purpose of the high-wage jobs tax credit is to provide an incentive for urban and rural businesses to create and fill new high-wage jobs in New Mexico.” The Hearing Officer concluded that this is not a restriction that only New Mexico businesses can claim the credit, but only a statement that the credit encourages job creation in the state. The Department then argued that the Taxpayer did not produce the substantial evidence to support the claim as required by statute. Here the Hearing Officer agreed with the Department. Section 7-9G-1 (M) NMSA 1978 states that the eligibility of the credit hinges on the percentage of sales to persons outside of New Mexico. But the Taxpayer, despite its assertions that most of its clients were located outside the state, could only produce one invoice and a revenue report that was created one week prior to the hearing as evidence. The Taxpayer also did not provide any further documentation on its employees, another necessary requirement to claim the credit. The Taxpayer having failed to provide the substantial evidence as required by statute to prove it was entitled to the credit, the Hearing Officer ordered the Taxpayer’s protest denied.


10/22/2018

18-32

Kevin D Fenner

On February 4, 2016, the Department issued a Notice of Claim of Tax Lien to the Taxpayer for personal income taxes for all tax years between 2003 and 2010. The liability in 2003 was assessed in 2007, with all other years assessed in 2013. The Taxpayer protested this tax lability in 2014 and which was subsequently determined in the Department’s favor in D&O 14-39. The Taxpayer then appealed D&O 14-39 to the New Mexico Court of Appeal which affirmed the decision. In 2017 the Department initiated warrant levies against assets of the Taxpayer to collect the outstanding liability. On October 24, 2017, the Taxpayer sent separate letters protesting a notice of levy. The Hearing Officer began by stating that the taxability of the liability had been settled in the previous protest and the current hearing was intended only to decide the merits of the several other issues brought by the Taxpayer in his most recent protest. The first point addressed was whether the Department’s attorney had acted in bad faith, but no evidence was provided by the Taxpayer to support this accusation. Next was whether the Department acted properly when serving levies to seize the Taxpayer’s property. The Hearing officer sited Section 7-1-32 NMSA 1978 in explaining the threshold that must be met to allow the Department to take such an action. The law states that there needs to be evidence of a liability and this was shown by the many assessments and demands for payments. The Taxpayer then claimed that the notices sent to his mailing address instead of his physical address prevented him from receiving effective notice of the actions. But the Hearing Officer noted that no change of address form had been filled out as required by statute and that no mail was returned by the Post Office to suggest that the mailing address was wrong. The next issue brought by the Taxpayer was whether the Department is time barred from collecting the liability under Section 7-1-19 NMSA 1978 which states that no action may be taken by the Department beyond ten years from the date of an assessment. The evidence, however, clearly showed the collection actions were taken well within ten years from the time the Taxpayer was sent notices. The Taxpayer also argued that the rule that money or property totaling $1,000 is exempt from levy should have prevented the Department from taking $1,110.07 from one of his accounts. This statute, Section 7-1-36A NMSA 1978, the Hearing Officer explained, exempts up to a total value of $1,000 of a Taxpayer’s total assets and not this amount from just one account. The Hearing Officer, therefore, determined that the Department had acted properly in acting to collect an outstanding liability from a delinquent taxpayer and ordered that the protest be denied.


10/18/2018

18-31

New Mexico Food Distributors Inc & Affiliates

On July 16, 2018, the Department assessed the Taxpayers, NM Foods Distributors, Inc, and affiliated entities Los Curates Restaurant and Little Anita’s Mexican Food in separate assessments for gross receipts and withholding tax penalty as well as interest for the CRS filing period ending May 31, 2018. There were nine different assessment letters of varying amounts, the largest penalty of $495.15 being for gross receipts tax. The Department received the protest for all these assessments on July 18, 2018. The taxpayer did not dispute the fact they owed tax but requested an abatement of the penalty for late filing and payment. The Taxpayers explained that in June of 2018 an accounting assistant whose duty it was to file and pay the tax, was diagnosed with T-Cell Lymphoma, left work to receive treatment, and died 16-days later due to complications. While this was happening in the week the gross receipt tax was due, an accounting manager who would have been the back up to file and pay the tax was on vacation. These events were sudden and unexpected and because of this the taxpayers argued they were not negligent in filing and paying the tax late. In response the Department first explained that its GenTax software had incorrectly calculated withholding penalty which should have been entirely for gross receipts. The Department then reasoned that since the Taxpayers used a payroll service to pay the withholding tax on time the same firm should have been given instruction to pay the gross receipt tax. The Hearing Officer, however, found this argument wholly unconvincing, stating that this case was a “quintessential example” of when Regulation 3.1.11.11 (B) NMAC requires the abatement of penalty. This regulation states that non-negligence is shown when “the taxpayer, disabled because of injury or prolonged illness, demonstrates the inability to prepare a return and make payment and was unable to procure the services of another person to prepare a return because of the injury or illness.” This having been established the Hearing Officer granted the Protest and ordered that all penalty be abated.


10/03/2018

18-30

Thomas W and Linda L Krumland

 On August 1, 2016, the Department assessed both Taxpayers in two assessments for gross receipts tax, penalty and interest for the CRS filing periods ending June 30, 2009 through June 30, 2015. On September 8, 2016 the taxpayers filed a formal protest through their accounting firm. Delayed by various continuances, requests for admissions and interrogatories, and other motions the hearing eventually occurred on May 29, 2018. The primary issue in this protest concerned whether a partner’s income from “guaranteed payments” and reported by the partnership on IRS form Schedule K-1 are subject to gross receipts tax. The Department assessed only receipts that were termed guaranteed payments and determined that these payments were made in consideration of services. The Taxpayers argued that they saw themselves only as owners of the businesses and that the activities performed were in keeping with that of an owner and not an employee or a contractor providing services. They also claimed they were entirely ignorant of the implications of reporting these distributions as guaranteed payments. The IRS defines guaranteed payments as being for compensation of services or capital without regard for the income of the partnership. Though there are taxable benefits to characterizing the payments in this way, the Hearing Officer said that he would interpret that these payments were appropriately characterized as the weight of evidence suggested. The Taxpayer also argued that the receipts might be exempt under Regulation 3.2.1.14 (S) (4) NMAC, but the Hearing Officer determined that this regulation was inappropriate as it applied to services provided to third parties. However, after the Hearing and before a decision was made in the protest, the Taxpayers noted the proposal of an amended regulation that would favor their position and requested that the decision in the protest be held until the new rule might be approved and decide the matter. The amended regulation specifically states that guaranteed payments are not gross receipts. The Hearing Officer decided to allow this request and then made the determination, after the amendment to 3.2.1.14 NMAC was approved, that this Regulation could be applied in this case, not he said because a new law was being retroactively applied but because it was instead reinterpreting the preexisting law and seeking to clarify it. The application of the rule being allowed, the Hearing Officer ordered that the guaranteed payments were not gross receipts and not subject to gross receipts tax.


09/14/2018

18-29

Precheck Inc

On November 17, 2017, the Department notified the Taxpayer that it reviewed and denied its claim for CRS refund in the amount of $178,341.46 for periods in years 2011 to 2015. On November 20, 2017 the taxpayer submitted a formal written protest of the Department’s refund denial. On October 24, 2017 the Taxpayer had applied for a refund that requested the amount of the High Wage Jobs Tax Credit which had been previously only partially approved. The Taxpayer had sought a credit for $186,140.03 for the same periods and was only partially approved in the amount of $7,798.57. Though the Taxpayer had received notice of the partial denial of the tax credit on June 12, 2017, the Taxpayer did not protest the denial within the 90 days after the date of the notice as required by Section 7-1-24, NMSA 1978. Instead, the Taxpayer filed an application for refund to claim the remaining amount of the High Wage Jobs Tax Credit and then protested the denial. The sequence of these events was key to the decision of the Hearing Officer. After having failed to protest the partial denial, the Hearing Officer determined that the Taxpayer was claiming the same credit again only to later protest the decision. Though Section 7-1-26 NMSA 1978 refers to protesting the claim for “a credit,” this does not specifically mean a credit like the High Wage Jobs Tax Credit and is not intended to offer a second opportunity to protest the same denied credit. Because of these conclusions, the Hearing Officer ordered that the Taxpayer did not file a timely written protest of Department’s refund denial and the claim for refund is denied.


09/04/2018

18-28

Diamond T U.S. Mail Service Inc

On August 4, 2017 the Department assessed the Taxpayer gross receipts tax, penalty and interest for the CRS reporting periods ending April 30, 2013 to December 31, 2016. On August 28, 2017, the Department received the Taxpayer’s timely protest of the assessment. The taxpayer transports bulk mail for the United States Postal Service under a Highway Contract Route, transporting mail from and to Lubbock, Texas and to various delivery points in New Mexico. This protest involved deciding the extent to which the Taxpayer was entitled to a deduction from gross receipts for these deliveries under Section 7-9-55 NMSA 1978 as transactions in interstate commerce. The taxpayer argued that all the receipts were in interstate commerce because its trucks crossed state boundaries to and from New Mexico. The Hearing Officer, however, found this argument unconvincing as many of the trips were made entirely in New Mexico. The Department argued that the amount of the deduction should be measured by employing Regulation 3.2.213.10 B NMAC which provides that a person who holds a contract for the transportation of United States mail from points within New Mexico to other points outside of New Mexico may deduct a portion of gross receipts which were derived from transactions in interstate commerce. The statute specifies the method on which a deduction is to be calculated and importantly defines “delivery point” as any point where mail is required to be delivered under the contract. After reviewing the information provided in the Highway Contract Route, the Hearing Officer determined that the calculation made by the auditor, which had concluded that the total number of delivery points in Texas was 12.5 percent, had not been calculated correctly. Allowing for the change in the number of delivery points, the Hearing Officer found that Taxpayer’s deduction from receipts should be 17 percent rather than the 12.5 percent originally calculated. Therefore, the Taxpayer’s protest is granted in part and denied in part and, allowing for the increased deduction, the Taxpayer is ordered liable for the adjusted amount of tax, penalty and interest.


08/29/2018

18-27

Active Solutions Inc

On March 21, 2017 the Department assessed the Taxpayer for tax, penalty and interest for the CRS filing periods ending January 31, 2010 through February 29, 2016. The taxpayer filed a formal protest on June 19, 2017. The chief issue in this protest was whether receipts the Taxpayer derived from providing Family Living Services under the Developmental Disabilities Medicaid Waiver Program were excluded from gross receipts tax. The taxpayer initially argued that it had not been assessed by the Department within the limitations specified in Section 7-1-18 (A) NMSA 1978 which states an assessment must be sent within three years from the end of the calendar year in which the tax was due. The Hearing Officer however cited the exception to this rule found in Section 7-1-18 (C) NMSA 1978 which explains that if a taxpayer understates by more than twenty-five percent the amount of liability for any tax the Department may assess within 6 years from the end of the calendar year in which the tax was due. The taxpayer then argued that the amounts were received solely on behalf of another in a disclosed agency capacity, stating that it was reimbursed for approved expenditures incurred on the state’s behalf in furthering specific state programs. Regulation 3.2.1.19 (C) (1) NMAC provides an exception for reimbursement when acting in a disclosed agency capacity. However, the Hearing Officer found that the Taxpayer’s evidence clearly established that it would not satisfy its own obligations to its direct service providers until after it had received payment from the state and therefore was not being reimbursed. Because of this the Hearing Officer concluded that the Taxpayer failed to establish that it incurred those expenditures in a disclosed agency capacity. The evidence also failed to establish any authority for the Taxpayer to bind the state to an obligation created by an agent. At no place in the Taxpayer’s provider agreement with the state, the Hearing Officer found, or within any cited statute or regulation, does the state express any grant of authority consistent with the creation of a disclosed agency relationship. The totality of the evidence, the Hearing Office decided, established that payments to the Taxpayer were not amounts received solely on behalf of another in a disclosed agency capacity and therefore were not excludable from taxable gross receipts. The taxpayer also argued that the receipts should be exempt pursuant to Regulation 3.2.1.12 E – F NMAC which excludes payments to individuals providing foster care, certain caretakers, and home care. The Hearing Officer determined however that none of these designations were applicable to the Taxpayer. Because of these conclusions the Taxpayer’s receipts were decided to be taxable gross receipts. The Taxpayer is liable for accrued interest as well as penalty under the negligence definition found under Regulation 3.1.11.10 (C) NMAC.


08/10/2018

18-26

Michael Andrew & Meredith L. Hartnagle

On July 10, 2017, the Department issued a notice of assessment of taxes for gross receipts tax, penalty, and interest. On October 5, 2017, the Taxpayer filed a timely protest with the Department. The Taxpayers’ argued that the income in question were the result of businesses that are in Colorado and that the income should not have been allocated to New Mexico on their PIT-B. Even though the services provided by those businesses were for New Mexico clients, the Taxpayer explained that all services were performed exclusively in Colorado either by telephone or the internet. The main issue to be determined in this protest is if gross receipts derived from services performed in Colorado, for a New Mexico purchaser, are taxable in New Mexico. The Department stated that the product of the services was the emails or telephone communications which represented deliverables and those deliverables were initially used in New Mexico resulting in them being subject to gross receipts tax. The Hearing Officer determined that because the services being performed where all completed out-of-state and because the services were not a result of research and development they qualified for the exemption under Section 7-9-13.1, NMSA 1978. For the foregoing reasons, the Taxpayers’ protest is granted. The Department is ordered to abate tax, penalty, and interest under the assessment.


08/03/2018

18-25

The Red Onion

On February 5, 2018, the Department assessed the Taxpayer as a successor in business for tax, penalty, and interest. The Taxpayer filed a timely protest with the Department on February 26, 2018. The Taxpayer and the previous business owner entered into a contract on July 17, 2017 for purchase of the restaurant business. The contract included the transfer of furniture and equipment. The Taxpayer operated the restaurant in the same business location but hired new employees, had a new menu, and obtained its own tax identification number. The issue to be decided in this protest is if the Taxpayer is a successor in business. The Hearing Officer used Regulation 3.1.10.16 NMAC to help determine if the Taxpayer was considered a successor in business. Based on the eight factors, the Hearing Officer determined that the Taxpayer is a successor in business. The Taxpayer argued that the liability owed should be limited to the value of the equipment that was transferred with the business based on Section 7-1-63, NMSA 1978. The Taxpayer argued that the amount should not include any of the property that was repossessed by third parties that were found to not belong to the prior owner. The Hearing Officer determined that based on the way that the contract was written, the purchase was for intangible property and goodwill and therefore the full purchase price was the amount that would have been looked at in applying Section 7-1-63, NMSA 1978. However, the amount of tax, penalty, and interest that was due was less that the amount that the Taxpayer purchased the business for. For the foregoing reasons, the Taxpayer’s protest is denied.


08/02/2018

18-24

TVSLR, LLC

On September 28, 2016, the Department assessed the Taxpayer, as a successor in business for the tax periods from December 31, 2014 through July 31, 2016. On December 19, 2016, the Taxpayer filed a formal protest with the Department. On or about August 1, 2016, the Taxpayer, who is a landlord, took over operations of a restaurant that was rented by a tenant that had become delinquent on rent, taxes, and other business expenses. The Taxpayer retained all of the employees that were employed by the prior owner and assumed possession of perishable and non-perishable items from the prior owner. The issue to be determined during this hearing is if the tax liability from the prior owner of the restaurant transfers to the Taxpayer after the default and eviction. Both the prior owner and the taxpayer are limited liability companies (LLC) with a shared member. The property that is transferred or acquired by a LLC is property belonging to the LLC and not of the LLC’s members. For the purpose of this hearing, the Hearing Officer notes that the LLC’s shall be treated as separate and district entities apart from their members. During the hearing, the Hearing Officer went through the eight factors that are used to determine if a business is a successor. These eight factors are presented in Regulation 3.1.10.16(A) NMAC. The Hearing Officer determined that six of the eight factors established that the Taxpayer was a successor in business. However, the time frame that the Department could go back would be limited based on Section 7-1-63(C), NMSA 1978. The Hearing Officer determined that the Taxpayer’s liability may be capped by an amount that is equal to the full value of the transferred tangible and intangible property based on the facts in this protest. The Department is ordered to abate part of the tax assessed. For the forgoing reasons, the Taxpayer’s protest is partially granted and partially denied.


08/01/2018

18-23

High Desert Bicycle Inc

On December 4, 2017, the Department denied the Taxpayer claim for refund for the penalty paid for the tax periods between January 1, 2016 and January 31, 2016. On January 10, 2018, the Department denied a second claim for refund for the penalty paid for the tax periods between June 1, 2014 and June 30, 2014. On February 27, 2018, the Department received a timely protest from the Taxpayer. The main issue to be determined in the protest is if the Taxpayer is entitled to the refund of the assessed penalties that were paid for the two periods at issue for failing to file timely returns. The Taxpayer argues that the late filings were due to non-negligence because it relied on the Department’s call center for information and that it was not notified by the Department that there was anything incorrect about the way that it had been filing its returns. During the time at issue, the Taxpayer had signed up to use the Departments online filing system. The Taxpayer was submitting payments to the Department but failed to file the returns associated with those payments. The error was located by the Taxpayer’s accountant and when the error was noticed all of the missing returns were filed in November of 2016. The Hearing Officer determined that because the Taxpayer found a way to continue submitting electronic payments that its intent was not to evade taxes. The Hearing Officer determined that the Taxpayer acted without negligence when relying on the advice from the Departments employee in the call center and that the penalty should be abated. For the forgoing reasons, the Taxpayer’s protest is granted.


07/31/2018

18-22

18-22 El Terrero Construction LLC

On February 22, 2018, the Department denied the Taxpayer’s claim for refund for the combined reporting system period ending December 31, 2017. On March 23, 2018, the Taxpayer filed a timely formal protest with the Department. The protest requested that the associated penalty and interest associated with the denial be forgiven. The Taxpayer missed the deadline for the period in question and penalty and interest was charged. The Taxpayer is asking for the penalty to be forgiven as there was staff changes and short staffing for the period in question. The Hearing Officer points out that “penalty shall be added” and that the Taxpayer was negligent when failing to pay the taxes due on time for the period in question. The Hearing Officer determined that the Taxpayer did not establish that it was entitled to the refund requested and that the Department properly denied the claim for refund. For the forgoing reasons, the Taxpayer’s protest is denied.


07/24/2018

18-21

CCA of Tennessee

On November 9, 2016, the Department assessed the Taxpayer for gross receipts tax, withholding tax, penalty, and interest for the periods starting January 31, 2010 through September 30, 2015. On December 7, 2016, the Taxpayer filed a formal protest with the Department. During the time at issue, the Taxpayer incarcerated, detained and housed inmates on behalf of Torrance County under a contract. In April of 2002, Torrance County entered into an intergovernmental service agreement with a Third Party that would allow for incarceration of federal inmates at the Taxpayer’s facility. However, the Taxpayer directly invoiced the Third Party and required that payment be submitted directly to the Taxpayer. The main issue to be determined during the protest is if the Taxpayer was eligible to claim the deduction under Section 7-9-47, NMSA 1978 (1994). The receipts in question are those between the Taxpayer and the Third Party which were based on the agreement between the Third Party and Torrance County. The Taxpayer argues that it is entitled to the deduction because it sold licenses to Torrance County and Torrance County resold them to the Third party. The Taxpayer also argues that based on an email between it and a Department employee that it reasonably relied on that email when deciding to claim the deduction and accept a Type 2 NTTC for the transactions in question. Lastly, the Taxpayer argues that when it took direct payment from the Third Party it was acting as an agent on behalf of Torrance County. However, the Department argues that the Taxpayer was selling services to Torrance County which does not qualify for the deduction in question. Secondly, the Taxpayer was invoicing the Third Party directly making it a direct sale of services. The Hearing Officer determined that the Taxpayer could not claim “safe harbor protection” for acceptance of the NTTC because there is not a deduction that applied to the transactions in question and that the Taxpayer was not acting as an agent when accepting direct payment. It was also decided that as the facts presented in the email with a Department employee did not match the facts in this protest and so the email could not be reasonably relied upon. The Department has no statute authority to abate interest and the Hearing Officer determined that penalty is due. For the foregoing reasons, the Taxpayer’s protest is denied.


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