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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. 

All Posts > 2019



Gemini Las Colinas LLC

After receiving an assessment from the Department for $724,047.43 in gross receipts tax, penalty, and interest, the Taxpayer submitted a timely protest on November 1, 2017. The Taxpayer is an assisted living community that provides apartments and services for its tenants. Though the Department agreed that the receipts from the lease of real property are deductible, much of the amount that made up the receipts was from providing services and was not deductible. Determining the correct amount that would qualify for the deduction, then, was the main issue in this protest. The Department had based its calculation of the assessment using a method based on the Taxpayer’s federal reporting. The Taxpayer argued that the alternative methods of calculating the tax that it presented allowed for a greater deduction to be taken. Though there are no regulations that prescribe a method for calculating receipts when there is a combination of leasing real property and services, the Department has provided rulings that a variety of methods may be used when they are reasonable. Since the assumption was that the assessment was correct, the Taxpayer needed to provide clear countervailing evidence that the method used by the Department, which used the Taxpayer’s federal reporting, was incorrect. The Taxpayer presented two methods of calculating the receipts, both provided long after it received the assessment. The analysis presented, the Hearing Officer determined, was not supported by actual examples in its books and records. The evidence, instead, supported the Department’s conclusion that reporting on an IRS form was more accurate. The Hearing Office determined that the method being used by the Department was reasonable, particularly because at the time of the audit the Taxpayer provided no analysis of its allocation. The Taxpayer supplied competing methods for calculating the amount of a rental deduction but it did not support that the alternative methods used were more reliable. Unsubstantiated statements that an assessment is incorrect cannot overcome the presumption of correctness. In the end, the Taxpayer simply presented insufficient evidence. Because of these reasons, the Hearing Officer ordered the protest denied.



Dusty J Stone

On October 17, 2018, the Department issued the Taxpayer an assessment for $2,516.42 in gross receipts taxes, penalty, and interest. The Taxpayer protested the assessment in a letter received by the Department on January 14, 2019. The Taxpayer is a rancher who raises and trains livestock. He argued that his receipts were exempt because they were earned from selling livestock and an exemption for the sale of livestock is provided in statute. The Department argued that the Taxpayer had not supported the exemption with evidence. For the exemption to be valid, a document like a receipt or a bill created at the time of the transaction was needed as support. Though the Taxpayer stated that he would provide a bill of sale to livestock customers who asked for it, he did not keep copies and would complete a deal with a handshake. Under the law an assessment issued by the Department is presumed to be correct. It is the taxpayer’s burden to overcome the assessment by presenting some countervailing evidence to show it should be abated. The Taxpayer, however, could only support his claim to the exemption with his testimony and the record of one sale. The Taxpayer contended that his memory, along with calendars and confirmations of old customers, should be sufficient evidence. The Hearing Officer noted that the personal income tax instructions advise taxpayers to keep copies of books, records, statements, and other supporting documents for a least ten years. The Tax Administration Act also states the taxpayers shall maintain books or records that will permit the accurate computation of state taxes. Though the Hearing Officer found the Taxpayer was very creditable and cordial, his testimony alone without other physical evidence was not enough to overcome presumption of correctness. The record the Taxpayer was able to produce, a receipt for a bull sold at auction, allowed for only that portion of the assessment to be abated. And so, the Hearing Officer ordered the protest granted in part and denied in part.



Jennifer A Skeet

On December 18, 2018, the Department issued an assessment to the Taxpayer for personal income tax, penalty, and interest. On January 15, 2019, the Taxpayer protested the assessment providing documentation as support. The issue to be determined in the case was whether the Taxpayer could claim the exemption from personal income tax for members of an Indian Nation, tribe, or pueblo who earn income and live on tribal land. There was no dispute regarding the key facts which were requirements for the Taxpayer to qualify for the exemption. The Taxpayer was both a member of the Navajo Nation and earned income on Navajo land. The area of dispute was only whether the Taxpayer met the requirement to live within the boundaries of the Navajo Nation. The Taxpayer owned a house in Albuquerque but during the week worked and stayed within the Navajo Nation in Arizona. The Department contended that since the Taxpayer owned a home in Albuquerque which she returned to each week, this was her domicile and outside the boundaries of the tribal land. The Department was able to show too that the Taxpayer met many of the factors for determining domicile, including that it was where she maintained a fixed permanent residence and the place she returned to after work. The Taxpayer, however, argued that the majority of her time in the tax year in question was spent in the Navajo Nation, since she stayed there during the week. She also argued that her domicile in New Mexico was not pertinent to deciding if she qualified for the exemption. The Hearing Officer agreed, explaining that domicile or residency is never used in the statute providing for the exemption but only states that the individual must live within the boundaries of tribal land. Previous decisions cited by the Hearing Officer showed that there was no definition, standard, or test to determine what was meant to live within the boundaries of tribal land, though weight was given to a continuing physical presence. Other decisions in similar cases did not look to where the tribal member resided but where they worked. Since the Taxpayer physically spent most of the tax year living on tribal land, the Hearing Officer determined that she qualified for the exemption and ordered that the assessment abated and the protest granted.



United Parcel Service

On September 30, 2013, after an audit by the Multistate Tax Commission, the Department issued the Taxpayer an assessment for $4,083,886.63 for corporate income tax, penalty, and interest. On December 23, 2013, the Taxpayer filed a formal protest of the assessment. After multiple continuances the hearing for the protest was conducted in June of 2018. At issue in the protest was the method the Taxpayer used to apportion its income to New Mexico. The Department argued that the Taxpayer was required to follow the special trucking apportionment method found in regulation which relies on mileage to determine New Mexico sales. The Taxpayer contended that the special method of apportionment for trucking companies was not applicable to its business and did not reflect its true New Mexico business activities. The definition found in the regulation of a trucking company includes an express carrier which primarily transports tangible property by motor vehicle for compensation. The Taxpayer contended its activities only partially involved transporting the property by motor vehicle, but the Hearing Officer disagreed, determining that its other processing activities were ancillary to its need to transport packages and so it met the definition in regulation. Alternative methods of apportionment are allowed by statute, however, when the apportionment required would distort the Taxpayer’s true business activities. The Taxpayer argued that the state-to-state volume method more accurately reflected its business activities and had a history of being accepted by the Department as a reasonable method. Evidence it presented showed the use of the mileage method resulted in a disproportionately high allocation to New Mexico due to its being a large geographic state with a small population. Comparing New Mexico to states with similar allocations showed all had significantly higher sales. The Taxpayer maintained it had establish an alternative method that was reasonable given its history of using the state-to-state volume method and the Department’s previous acceptance of it in prior audits. The evidence, the Hearing Officer determined, clearly supported that the state-to-state volume method was a reasonable reflection of the Taxpayer’s actual business activity. The method resulted in an estimated revenue that was still much higher than the actual revenue in the state. This fact strongly supported that the method was a reasonable approximation allowed by law, where the mileage method resulted in a distortion of the Taxpayer’s business activity. This having been decided, the Hearing Officer ordered the assessment abated and the protest was granted.



A Class RV Storage

On December 18, 2017, and then on April 5, 2018, the department issued assessment notices for gross receipts tax, penalty, and interest to the Taxpayer, the operator of three RV storage facilities. On February 12, 2018, and on June 26, 2018, the Taxpayer submitted formal protest letters to the department disputing the assessments. The main issue to be resolved in the protest was whether the Taxpayer was entitled to deduct receipts from renting real property. The Taxpayer contended that the rental contracts were in fact land leases and not simply a license to use the space. There were indicators to support this interpretation. The rental agreement was for a specific portion of property and for an agreed to amount of time. The tenant was intended to have unrestricted use of the property and was required to provide maintenance of the space. The Department, however, disputed that the agreements were leases because of other indicators. These included limitations that the land be used only for storage, the inability to secure the space against others, and that the tenant did not have exclusive possession or access to the property. There was no physical barrier between the storage spaces for the RVs. Indeed, it was possible for the tenant to park over the boundaries of the space, making it necessary for the facility manager to have the RV removed. The Hearing Officer cited department regulations that gave examples of similar situations deciding the same question: one involved the renting of parking spaces and the other concerned providing space in an airplane hangar. Neither example allowed the deduction for receipts from the lease of real property, having determined that both granted a license to use the space instead. In another ruling cited, the openness and accessibility of the rental space enforced the conclusion that the agreement was a license and not a lease. After evaluating earlier decisions, the Hearing Officer decided that, in the end, the absence of any enclosed structure prevents the Taxpayer from providing exclusive possession, use, and access to the units and, therefore, the agreements were not leases. This having been decided, the Hearing Officer disallowed the deduction, but also ordered that penalty be abated because the Taxpayer was not negligent, having obtained the advice of a CPA, and so ordered the protest denied in part and granted in part.



Lobo Sports Properties, LLC

Lobo Sports Properties, LLC, and Iceberg Ventures, Inc, are subsidiaries of the same company. After conducting audits, the Department assessed both on February 27, 2017, for gross receipts tax, penalty and interest. Both responded with formal protests on May 26, 2017. This protest presented multiple issues, the first of which was whether any portion of the Taxpayer’s receipts were derived from sublicensing intellectual property, which is excluded from the definition of property in statute. The Taxpayer provided various services to the athletic department of University of New Mexico, which included procuring and managing sponsorships for its athletic programs and producing radio broadcasts. An agreement between the Taxpayer and UNM authorized the Taxpayer to allow the sponsorship of UNM athletics to businesses and allow the UNM name and logos to be used by the sponsor. The Taxpayer argued that this agreement amounted to sublicensing the UNM trademarks. Because the licensing of intellectual property rights is not property, the receipts from sublicensing these rights, it argued, should be excluded from gross receipts. A closer examination of the agreement, however, showed that it permitted the sponsor only fair use of the trademarks and did not explicitly allow the sponsor a license for their use. Also, any use of the trademark was still to be approved by the university. Since the agreement did not give the Taxpayer the authority to sublicense the trademarks and the Taxpayer could not support that any of its fees resulted from the licensing of intellectual property, none of its receipts from allowing the sponsorships could be excluded. The next issue was whether the Taxpayer could deduct the receipts from broadcasting time for advertising messages of national or regional sellers. Here the difficulty was that the Taxpayer was unable to provide clear support for the receipts that qualified. The agreements with national companies for advertising provided as support were far too unspecific to document the exact amounts deducted. The Taxpayer bears the burden of establishing the amount of a claimed deduction. Without clear support establishing the amounts, the Hearing Officer concluded, the deduction had to be denied. The third issue to be resolved was the Taxpayer’s deduction for bad debt. If the Taxpayer reports receipts and then does not received payment, it may take the deduction, but here the Taxpayer was unable to clearly identify whether the receipts had been originally reported. Here again, without the proper documentation the deduction was denied. The Taxpayer also claimed that penalty and interest should be abated for the late payment of pass-through-withholding tax, but since it had no proof of the on time mailing of the payment, this request too was denied. This having been decided, the Hearing Officer ordered the protest denied.



Solutions Salon Inc

On January 2, 2018 the Department issued a denial of the Taxpayer’s claim for refund in the amount of $14,274.26. On February 27, 2018, the Taxpayer filed a timely protest of the Department’s denial. The Taxpayer is a cosmetology business that provides spaces to independent contractors within its building. The claim for refund was based on receipts it had deducted for rental income received from contractors for the use of the space. The main issue to be decided was whether the rental agreements should be treated as leases and therefore deductible, or licenses and taxable. Generally, a lease is agreement where the property owner gives up possession and use of the property for a definite term and the tenant acquires definitive control over the property. A license is a permission to do something on the land and conveys no interest in the property. A license is typically revocable, personal, paid for on the basis of each use or as a percentage of income from its use, and limited to a specific purpose. The Taxpayer argued the rental agreements with its contractors were leases because they were not revocable and its contractors had control over their spaces. The Taxpayer referenced a Department ruling and a previous case which provided support for this position. The ruling provided indications of when an agreement is a lease or a license and recognized that the property in question had elements of both. Using the indicators provided in the ruling and several other cases cited, the Hearing Officer determine that in the current case the majority of these factors favored the agreement being a license. Though some indicators suggested a lease agreement, such as the responsibility of the lessee for maintenance of the space and the duration of the agreement being more than day-to-day, the majority of indicators pointed to the agreement being a license. The agreement did not restrict access to other individuals and did not provide unrestricted use of the property. The property was not mortgageable or assignable, the contractors paid a percentage of their income for use of the space, and the agreement was limited to a specific purpose. Further, the Hearing Officer interpreted that the contract was indeed revocable because the Taxpayer could terminate the contract for irreconcilable differences with other independent contractors. This having been determined, the Hearing Officer ordered that the Taxpayer had failed to show enough support for the deduction and the protest was denied.



Rio Rancho Physical Therapy

On July 5, 2018, the Department denied the Taxpayer’s application for refund seeking $10,643.10 in costs and fees arising from its 2016 protest. The Taxpayer and the Department had settled the protest when the Taxpayer provided additional support for its refund request. On October 3, 2018, the Taxpayer filed a protest of the Department’s denial through its CPA. As there was not any material dispute of the facts in the case, the Hearing Officer agreed to provide a summary judgement. The issue to be decided in the case was whether the Taxpayer could later be awarded costs and fees in a separate protest when the protest from where the costs and fees originated had already been resolved. The Taxpayer voluntarily withdrew the initial protest after the settlement, though it later argued that it had not withdrawn its request for costs and fees. There was nothing in the withdrawal to indicate, however, that the Taxpayer would continue to pursue other unresolved issues related to the case. The statute governing the awarding of costs and fees states that they arise in connection with the proceeding in which they incur. The Hearing Officer interpreted this to mean that costs and fees should not be the central issue in a separate, standalone protest, but should be considered as part of a hearing determining the collection or refund of tax. The Taxpayer cited a fiscal impact report which, in its analysis of the statute, suggested a separate protest hearing might be required for the determination of costs and fees. The Hearing Officer determined, however, that this did not mean that the hearing would be a separate protest but instead another hearing in the same protest to determine the costs and fees. The Hearing Officer referenced a case that conducted an additional hearing within the same protest for just this purpose. Another case concluded that, once a case has been determined or resolved, its jurisdiction to consider costs and fees in that protest ends. In the Taxpayer’s earlier protest it made no demand for costs or fees and should have been aware that when it withdrew its protest the proceedings were concluded. Because of these reasons, the Hearing Officer ordered the Department was correct in its denial of the application for refund and the protest was denied.



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.



Drew Markell

On October 2, 2017, the Department issued an assessment for withholding tax, penalty, interest in the amount of $40,336.03 to the Taxpayer. On January 2, 2018, the Taxpayer submitted a formal protest of the assessment. The Department had assessed the Taxpayer because as CEO for Santa Fe Medical Group, LLC he was the person with control over payment of the company’s wages. The issue to be decided in this case, then, was whether the Taxpayer was personally liable for the withholding tax. Under statute the employer is a person, officer, agent or employee of that person having control of the payment of wages and that the employer is liable for the withholding tax. The Taxpayer was the CEO of the entity and had access to all financial records and authority over all finances, as well as the authority to direct the responsibilities of others in the organization. When the company went into bankruptcy it retained control of its own finances and was still required to file tax returns. The Taxpayer testified in bankruptcy court multiple times as to the company’s financial obligations but claimed he was unaware of the company’s outstanding withholding tax liability until he was assessed. The Taxpayer suggested that since the company was in bankruptcy a variety of other individuals shared responsibility for paying the company’s taxes. However, the Hearing Officer determined that the responsibility to make the withholding payments rested with Santa Fe Medical Group, LLC and its executives and that the Taxpayer was the executive to whom all others answered. The statute states that the person with control over payment has the final responsibility for paying the employee’s withholding tax and the Hearing Officer cited multiple cases where that individual was found to be personally liable. A case was also cited where the shared control of an account did not reduce the liability of the person whose responsibility it was to assure the withholding tax was paid. This having been decided, the Hearing Officer ordered the assessment to be paid and the protest was denied. 



Total Management Sys Inc

On September 22, 2017, the Department assessed the Taxpayer in the amount of $276,963.88 for gross receipts tax, withholding tax, penalty, and interest. On December 15, 2017, the Taxpayer filed a protest of the Department’s assessment of the gross receipts tax. The main issue to be decided in the protest was whether the Taxpayer could take a deduction from gross receipts for those amounts derived from providing administrative, managerial, accounting and customer services for an affiliate on a nonprofit or cost basis as provided for by statute. Though the Department agreed that services being performed were for affiliates of the Taxpayer, the primary cause of dispute was whether the services were provided on a nonprofit or cost basis and the method through which the Taxpayer calculated and divided the cost among its various affiliates. The evidence showed that the Taxpayer’s operations provided administrative, managerial, accounting, and customer services to its affiliated hotels as the statute requires. But the statute does not specify a methodology for determining the cost of services when supporting the deduction. The Taxpayer calculated its costs as the sum of all expenses and then identified the difference between its revenue and costs to determine whether it produced a profit. The Hearing Officer determined that it was reasonable to rely on the total of those costs as the starting point for determining whether those services were provided at cost or without profit. The Department argued that the Taxpayer should be required to account for the cost of every service to each affiliated hotel, but the Hearing Officer agreed with the Taxpayer that using the sum total of expenses was sufficient. A breakdown by affiliate was not required by the statute. The method employed, that each affiliate paid a portion of the Taxpayer’s total cost in proportion to the revenue that it generated, was a reasonable method to determine the share of the total costs. This method was used consistently by the Taxpayer and demonstrated its entitlement to the deduction. This having been decided, the Hearing Officer ordered the protest granted and the assessment abated.



Castillo Retirement Residences

On December 21, 2017 the Department assessed the Taxpayer for compensating tax and withholding tax for $225,892.20. On March 21, 2018, Taxpayer filed formal protest of the assessment contesting the entire amount of the compensating tax which made up 99.5% of the assessment. On April 11, 2018, the Department concluded from its interpretation of statute that by failing to protest, pay, or enter in a payment plan for the $1,025.20 in withholding tax the protest should be denied. On July 3, 2018, the Taxpayer protested the Department’s denial of the protest for this reason. The Taxpayer’s motion for summary judgement was granted by the Hearing Officer as there was no dispute of the material facts in the case. The main issue to be resolved was whether the Department was correct to deny the Taxpayer’s protest request because of the failure to pay the unprotest portion of the assessment. The statute governing protests states that “a protest may be filed with or without payment of the assessed amount” but then later stipulates that “if only a portion of the assessment is in dispute, any unprotested amount of tax, interest, or penalty shall be paid.” The Hearing Officer found the language here somewhat ambiguous but it clearly does not state that the Department should automatically deny the protest if a portion of the assessment is not paid. Statute requires that the Department inform the Taxpayer of a problem with their protest if there is one, giving them the opportunity to correct the problem if they can do so as part of the guarantee of a right to formal review. However, in this case the protest was simply denied. Only when a protest is not timely filed does the statute state the protest should be automatically denied. If a portion of the tax is not paid, the remedy provided in statute to the Department, the Hearing Officer determined, is enforcing collection. Timeliness and substantive content are the two primary necessary requirements of a valid protest. This having been decided the Hearing Officer ordered that the Department accept Taxpayer’s underlying substantive protest and promptly submit a request for hearing to the Administrative Hearings Office.



Potter Endustries Inc

On March 3, 2017, the Department assessed the Taxpayer as a successor in business in the amount of $558,243.36 in tax, penalty and interest. On March 27, 2017, the Taxpayer filed a formal protest of the assessment. The main issue to be decided in this protest was whether the Taxpayer was a successor in business to American Car and Truck Care, LLC, and if so, to what extent was the Taxpayer liable for the amount owed. Shortly after incorporating in 2017, the Taxpayer engaged in series of actions that made the Department conclude that it was a successor in business. The Department relied on the statute and regulation that determines when one business becomes the successor to another. The Taxpayer argued that the regulation being used was unconstitutional. In response, the Hearing Officer cited the law that the Department has the authority to issues regulations that clarify and exemplify the statutes to which they pertain. The regulation lists various criteria that should be weighed when determining whether an entity is a successor in business to another and would, therefore, be responsible for any outstanding tax liability. The Taxpayer met the vast majority of these criteria. The Taxpayer’s business was engaged in exactly the same type of business, car maintenance and repair, as the LLC. It kept the same name as the LLC. It paid for the LLC’s accounts receivable. It leased the same building that the LLC was using for its business and even kept the same sign on the building as the LLC. The Taxpayer later acknowledged it was benefiting from the goodwill of the earlier business and was already a recognized name in the community. The Taxpayer had also continued the work of a contract that had been entered into by the LLC. All this suggested that the Taxpayer was a continuation of the LLC’s business. Two of the criteria listed in the regulation the Taxpayer did not meet. There was not enough evidence to support that the same officers of the previous business were now employed or connected with the Taxpayer. There was no evidence that the Taxpayer had taken on any of the debts of the LLC. But considering all of this evidence together convinced the Hearing Officer that the Taxpayer was a successor in business. The Taxpayer also argued the extent of the liability, suggesting that it should only be $10,000 for the goodwill and the amount paid for the accounts receivable. But the Hearing Officer found that this did not reflect the value of the property being used. This amount was the full amount of the assessment. This having been decided, the Hearing Officer ordered the assessment be paid and the protest denied.



Online Radiology

On October 23, 2017, the Department assessed the Taxpayer $309,185.49 in gross receipts tax, penalty, and interest. On January 20, 2018, the Taxpayer through a representing CPA firm formally protested the assessment. The main issued presented in this protest was whether the Taxpayer’s receipts characterized as “cash collections guarantee” or “stipend” were subject to gross receipts tax. Representation for the Taxpayer used both terms interchangeably and argued that these payments represented compensation only for making itself available for on-call and after-hours services and was “payment for services not performed” and therefore not gross receipts. The Taxpayer, headquartered in California, provides radiology services for rural health care facilities and has agreements to provide these services to health care facilities in rural areas of New Mexico. The Taxpayer divided revenue characterized as stipend or cash collections guarantee separately from the other revenue it received. This money was paid by the health care facilities and not by patients or insurance companies and was intended, the Taxpayer said, as compensation for the afterhours coverage and other contractual obligations. The Taxpayer also argued that the compensation was intended to provide a financial incentive to the Taxpayer to contract with rural New Mexico health care facilities. Some of the contracts with the facilities, though, did identify this money as payment for providing services. The difficultly in deciding the case, the Hearing Officer said, lay in the lack of evidence provided to support the Taxpayer’s position. Much of the evidence presented relied on information obtained from individuals who were not called upon to testify and this severely diminished the credibility of the evidence. The Hearing Officer found that the Taxpayer’s one witness, the representing CPA, lacked the personal, first-hand knowledge of the Taxpayer’s business operations during the periods relevant to the protest. Under statute the Taxpayer has the burden to overcome the presumed correctness of the Department’s assessment. The Taxpayer, then, must present sufficient countervailing evidence in order for the Department to abate the amount owed. The evidence presented was far too little. This having been decided the Hearing Officer ordered the assessment to be paid and the protest denied.



The GEO Group Inc

On April 24, 2017, the Department sent a denial letter in response to the Taxpayer’s claim for refund of corporate income tax for 2011 and 2012, stating that a net operating loss established on a separate entity cannot be claimed on a consolidated return. On July 27, 2017, the Taxpayer protested the denial. The main issue of this protest was whether the taxpayer qualified for the net operating loss deduction and so should receive a refund. The Department partly argued that the refund claim could be denied based on the statute of limitations, but the Hearing Officer dismissed this as never the reason for the actual denial. Instead, the case hinged entirely if it was appropriate for the Taxpayer to claim the net operating loss. To create the New Mexico base income which determines tax, the Taxpayer must add back the net operating loss taken on the federal return and then take the allowable New Mexico net operating loss permissible under its own rules. A taxpayer must show clear entitlement to a deduction for it to be allowed. The Department argued that the returns and supporting documentation including the schedules provided, were insufficient to determine this. The Taxpayer provided some information regarding the federal net operating losses, but this alone could not allow for a clear determination of the New Mexico net operating loss deduction. Department regulation has established specific rules about when a corporation may claim a net operating loss first used by another corporation or first reported under another filing method. Some conditions require the loss to still be a part of base income while other instances allow for loss carryovers if they are permitted for federal income tax purposes. To determine if the net operating loss qualified the Department needed additional information about when the net operating loss was first claimed, by which entity, whether that entity filed New Mexico corporate income tax returns and under which reporting method, and about the Taxpayer’s acquisition of the entity. The Taxpayer was ultimately responsible for these omissions and failed to established entitlement to the refund. This having been decided, the Hearing Officer agreed with the Department that there was insufficient evidence to determine whether the deduction was allowable and the Hearing Officer ordered the protest denied.

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