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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 > 2012



Home Security Systems and Industrial & Commercial Security Systems

The Taxpayers are two corporations, with one common president and owner. Taxpayers doe business in Albuquerque and have been registered for Combined Reporting System numbers for over 20 years. Taxpayers design, pre-wire, install, service and monitor 24-hour electronic security systems.  They sell and lease tangible personal property and sell installation and monitoring services.  The Department audited both corporations under various tax programs for a period beginning January 1, 2002 through March 31, 2005.  On May 23, 2005, the Department issued a 60-day notice letter requesting that Taxpayers possess New Mexico nontaxable transaction certificates (NTTCs) or other documentation to support claimed deductions by July 22, 2005.  The Department proposed, and the Taxpayers agreed to, a sampling method for the audit under which invoices were selected from the audit period and broken into two strata based on their amount.  The Department completed its audit in February 2006, and disallowed numerous deductions claimed by the Taxpayers.  At protest, the hearing officer determined that three of the deductions claimed by the Taxpayers were to be allowed, but the others were not.  These deductions were disallowed because the Taxpayers could not provide the necessary NTTCs, or other sufficient evidence to show that they were entitled to claim the deductions.  The Taxpayers protests were granted in part and denied in part.



Burlington Northern Santa Fe Corp.

The Taxpayer was the subject of a federal audit for the tax years 1995 through 1999.  On November 3, 2008, the Taxpayer filed amended New Mexico corporate income tax returns for those tax years to reflect the final IRS adjustments on income for those years.  The amended returns for 1995 and 1996 showed additional tax liabilities, while the amended returns for 1997, 1998 and 1999 showed overpayments.  When the Taxpayer filed its amended returns, it also paid the tax and interest that it determined was still owed.  The Taxpayer calculated the interest from the due dates of the taxes for 1995 and 1996 until the overpayments in 1997, 1998 and 1999, and until the final payment of tax in November 2008.  On April 1, 2009, the Department assessed the taxpayer for additional interest for the 1996 tax year.  The Department calculated the interest from the due dates of the taxes until the amended return was filed in November 2008.  The Taxpayer filed a timely protest to the assessment.  The issue to be decided at hearing was whether interest accrued from the due date of the tax until the overpayments in 1997, 1998, 1999, and the final payment in 2008, as the Taxpayer believed, or whether the interest accrued  from the due date of the tax until the amended return was filed without regard to previous overpayments, as the Department stated.  The arguments of both the Taxpayer and the Department were based upon different interpretations of Section 7-1-29 NMSA 1978.  The Department based their position on prior Decision and Orders, as well as case law.  The Taxpayer pointed out that that the statute had been amended after those situations had been decided and that the amendment corrected the statute precisely for this issue.  The hearing officer found that the 1995 and 1996 liabilities were deemed paid in 1997, 1998 and 1999 based on the overpayments made in those years.  The Taxpayer paid the remaining tax balance and the proper interest with the final payment in 2008.   The Taxpayer’s protest was granted.



Mark Kilcoyne

On July 31, 2009, the Department assessed the Taxpayer for 2008 personal income tax, penalty and interest.  The Taxpayer filed a protest to the assessment.  At the hearing, the Taxpayer argued that he relied on Department forms, instruction and tax tables to calculate his 2008 personal income tax return, that all payment of tax is voluntary, that he did not agree to pay any additional tax, and that he was forming a trust with the Department’s protest auditor.  The Taxpayer did not present any evidence to challenge the assessment and therefore failed to overcome the statutory presumption that the assessment was correct. The Hearing Officer found his legal arguments to be without merit.  The Taxpayer’s protest was denied.



Casias Trucking

The Taxpayer is a trucking business in Albuquerque who hauls sand, gravel asphalt and demolition materials.  The Taxpayer filed weight distance returns and paid weight distance tax for the audit period in question.  On December 8, 2010, the Department assessed the Taxpayer for weight distance tax, penalty and interest for the tax period of March 31, 2004 through December 31, 2009.  The Taxpayer filed a written protest to this assessment.  The Department conducted an audit of the Taxpayer and the original audit period was from January 1, 2007 through December 31, 2009.  The Department expanded the audit because it believed that the Taxpayer had underreported by 25%, which expands the statute of limitations.  The Department calculated the underreported amounts using an averaging of miles method and treated all months for each truck equally.  The Hearing Officer found that the Taxpayer submitted sufficient evidence to show that the Department’s methodology in determining underreported weight distance tax was not reliable.  The Taxpayer’s protest was granted.



Cordero Transport

The Taxpayer is a trucking company that transports cargo, including landscaping goods and agricultural commodities.  On December 31, 2008, the Department sent notice to the Taxpayer that the Department had selected the Taxpayer for audit of Weight Distance Tax for reporting periods January 1, 2006 through December 31, 2008.  The notice informed the Taxpayer of the necessary documentation needed for the audit.  The Department informed the Taxpayer on January 8, 2009, that the audit would be done on a sample bases, relying on three reporting periods across the audit period.  The Department found that the Taxpayer did not have all of the necessary records needed, and maintained only records of invoices showing delivery locations and fuel receipts.  During the audit, the Department found that the Taxpayer’s records were insufficient to substantiate its claim as a one-way hauler entitled to a reduced Weight Distance Tax rate.  Based on the audit, the Department assessed the Taxpayer for Weight Distance Tax, penalty and interest on December 29, 2009, as well as International Fuel Tax, penalty and interest on December 20, 2009.  The Taxpayer initially protested both assessments, but withdrew the protest to the International Fuel Tax during the hearing.  The Hearing Officer found that the Taxpayer did not possess the requisite records under Regulation NMAC to establish that it was entitled to the reduced one-way hauler rate, not did it establish which, if any, of its vehicles traveled 45% of its total mileage empty of all load, as required to claim that reduced rate.  The Taxpayer’s protest was denied.



Computer Square, Inc.

The Taxpayer was engaged in business in New Mexico selling software licenses and services from 2001 through 2006.  The Taxpayer filed gross receipts tax returns with the Department for the tax periods from July 1, 2001 through September 20, 2002.  The returns were filed March 2003 and October 2003.  In March 2003, the Taxpayer paid the tax principal when the returns were filed.  In April 2003, the Taxpayer paid the applicable penalty and interest.  In June 2003, the Taxpayer filed amended returns, claiming zero gross receipts tax liability and requested a refund for amounts paid July 2001 through September 2002.  The Taxpayer was acting on advice from its accountant and believed that its receipts were exempt from New Mexico tax based on a ruling that the Department issued to a different taxpayer.  After requesting and receiving additional information from the Taxpayer in regards to the refund claim, the Department issued a refund to the Taxpayer in March 2004.  In November 2006, the Department began an audit of the Taxpayer.  The Department issued an audit report in April 2007, and determined that the Taxpayer had underreported its gross receipts by more than 25% for tax periods June 30, 2001 through September 30, 2006.  The Department also determined that the ruling relied upon by the Taxpayer did not apply and that the refund issued was in error.  The Taxpayer was assessed on May 15, 2007, for gross receipts tax and interest for the tax periods that had been audited.  The Taxpayer filed a formal protest to the assessment.  The Taxpayer withdrew its protest as to whether it should have been paying gross receipts tax, but challenged the Department’s timeliness in assessing the Taxpayer.  The hearing officer found that, for tax periods from October 1, 2001 through September 30, 2002, the assessments of gross receipts tax and interest are barred by the statute of limitations so that portion of the assessment was abated.  However, the Taxpayer was unable to show that the remainder of the assessment was incorrect and so that portion of the assessment was upheld as to both gross receipts tax and interest.  The Taxpayer’s protest was granted in part and denied in part.



Tom Conway

The Taxpayer was a resident and domicile of Las Cruces, New Mexico for at least the ten years before 2004.  He ran his own business in Las Cruces until 2003.  After closing his business, the Taxpayer sought work for needed income and medical insurance for his wife’s ongoing medical expenses, as she has a serious condition that prevents her from working.  In late 2003, the Taxpayer sought employment with the United States Merchant Marines.  The Taxpayer went to Florida, where he obtained a temporary position aboard a ship with the Merchant Marines.  The Taxpayer’s wife remained in Las Cruces.  In August and September 2004, the Taxpayer returned to New Mexico to visit family.  During 2004, the Taxpayer voted in New Mexico, had three cars registered in New Mexico, and changed his voter registration in New Mexico from one Las Cruces address to another as his wife had moved out of their rented home into a mobile home after he went to Florida initially.  In 2005, the Taxpayer received a permanent posting on a ship ported out of Corpus Christi, Texas.  In 2006, the Taxpayer purchased and registered a vehicle in New Mexico.  On July 10, 2007, as a result of a tape match with the IRS, New Mexico assessed the Taxpayer for unpaid 2004 personal income tax, penalty and interest.  The Taxpayer filed a written protest to the assessment.  In 2008, the Taxpayer registered to vote in Texas, at some point in 2008 or 2009, he obtained a Texas driver’s license, and on January 21, 2009, the Taxpayer re-registered his vehicle in Texas.  At various points, the Taxpayer spoke to three different tax professionals, none of whom he retained, who told him that he was not required to pay New Mexico personal income tax.  There is no evidence regarding which facts he disclosed to these individuals before receiving their advice.  At the hearing, the hearing officer found that the evidence established that the Taxpayer did not change his domicile from New Mexico to any other location in 2004.  This conclusion was reached by considering the twelve domicile factors set forth in Regulation NMAC.  Additionally, the hearing officer found that the Taxpayer’s reliance on the advice of the tax professionals he spoke to did not provide enough cause to abate penalty.  The Taxpayer’s protest was denied.



Hank Gallegos Trucking

The Taxpayer provides hauling services and construction services, including demolition, earth work and roadwork.  The business was organized as a sole proprietorship from 1995 through 2003, and as a corporation from December 31, 2003 to the present.  The Taxpayer has New Mexico Contractor’s Licenses valid from May 2004 through 2007, but did not provide proof of valid licenses from January 2000 through December 2003.  On July 20, 2005, the Department selected the Taxpayer’s sole proprietorship for audit of CRS reporting periods January 2002 through December 2003, and for audit of the Taxpayer’s corporation for CRS reporting periods January 1, 2004 through June 30, 2005.  The Taxpayer timely presented Type 6 and Type 7 Nontaxable transaction certificates (NTTCs) for claimed construction service deductions.  The Taxpayer also provided the auditor with customer statements that included attached tickets.  After reviewing these statements, the Department disallowed the Taxpayer’s claimed construction service deductions because the Taxpayer could not substantiate that it provided qualifying construction services other than the non-qualifying hauling and transportation.  The Department determined that the Taxpayer’s sole proprietorship had underreported by 25%, and so they expanded the audit to include reporting periods January 1, 2000 through January 1, 2002.  The Taxpayer provided the Department with a letter from a customer stating that it had paid both the Taxpayer’s sole proprietorship and corporation to perform various construction services that included loading, hauling and spreading.  The Department notified the Taxpayer that the letter would not justify deductions for construction services and that the NTTCs the Taxpayer received were inappropriate and not in good faith without additional records to justify that construction services were performed.  On October 17, 2006, the Department assessed both the Taxpayer’s sole proprietorship and corporation for gross receipts tax and interest.  The Department did not assess the Taxpayer for penalty.  The Taxpayer formally protested the Department’s assessments.  The Taxpayer argued that it was entitled to claim the deduction allowed under Section 7-9-52 NMSA 1978, and Regulation NMAC.  However, the hearing officer found at the protest hearing that the Taxpayer did not satisfy the necessary requirements of the deduction and could not demonstrate that it was entitled to the deduction.  The Taxpayer’s protest was denied.



Edward J. Clah & Melvina Murphy

The Taxpayer is an enrolled tribal member of the Navajo Nation.  He is a member of the Iyanbito Chapter, about 20 miles east of Gallup, NM.  The Taxpayer’s wife is also an enrolled member of the Navajo Nation, Iyanbito Chapter.  Although she is listed in the assessments, both parties agreed that her tax obligations were not at issue.  The Taxpayer and his wife own a homesite lease with a home on Navajo Nation tribal trust land, and a home in Gallup.  The Taxpayer’s wife worked as an on-call nurse at the hospital in Gallup during the period in question, so she resided at the home in Gallup and paid New Mexico personal income taxes for the relevant period.  The Taxpayer was employed with Chevron Mining Inc.  at the McKinley Mine on the Navajo Nation from February 1992 until July 2005, and then again from 2007 through 2011.  From July 2005 through 2006, the Taxpayer worked off the Navajo Nation. The Taxpayer claimed that he lived at the Iyanbito home for tax years 2004 through 2010. During that period, the Taxpayer used the Gallup address as his mailing address, the address used for his voter registration, the address on his driver’s license, and the address to which he registered two vehicles. On his New Mexico personal income tax returns, the Taxpayer claimed an exemption for all income earned at the McKinley mine on the Navajo Nation land pursuant to Section 7-2-5.5 NMSA 1978, for New Mexico personal income tax in years 2004, 2005, 2007, 2008, 2009 and 2010.  The Taxpayer did not claim the exemption for 2006 and paid personal income tax that year. On November 28, 2011, the Department assessed the Taxpayer for personal income tax, penalty and interest for tax years 2004, 2005, 2007, 2008, 2009, 2010 and 2011. Upon receiving the assessments, the Taxpayer contacted an investigator with the Department’s Tax Fraud Division. During that conversation, the Taxpayer told the investigator that he, his wife, son and daughter lived at the Iyanbito home and had never rented it out. The Taxpayer filed a protest to the assessments. In February of 2012, the tax fraud investigator visited both of the Taxpayer’s homes and found a woman living at the Iyanbito home who said that she had been renting there for about two years. Upon doing a property record search, the investigator found a listing for another woman, who stated that she, her husband and two kids rented the Iyanbito home in 2003 through 2008, while the Taxpayer and his entire family lived in Gallup. Considering many factors, the Taxpayer failed to demonstrate that he lived within the boundaries of the Navajo Nation during the relevant period, and all evidence seemed to point his having lived in Gallup during that time. The hearing officer found that the exemption under Section 7-2-5.5 NMSA 1978 did not apply and the Taxpayer is liable for the assessed personal income tax principal, penalty and interest. The Taxpayer’s protest was denied.



Navajo Refining Company

The Taxpayer claimed a refund of New Mexico Special Fuel Suppliers Tax and Petroleum Products Loading Fee for tax periods January 2007 through March 2007.  During that period, the Taxpayer operated a refinery in Artesia, where it refined diesel fuel.  The Taxpayer also owned and stored diesel fuel at a pipeline terminal in Bloomfield.  During the period in question, the Taxpayer could not refine enough diesel fuel to satisfy its contractual obligations to its New Mexico customers and had to purchase 1,240,344 gallons of diesel fuel from another corporation.  That corporation imported the fuel from Texas into New Mexico and paid the Special Fuel Suppliers Tax and Petroleum Products Loading Fee on all of the diesel fuel it sold to the Taxpayer.  The corporation included these taxes and fees in its invoice to the Taxpayer.  The Taxpayer commingled that purchased fuel with other fuel it had stored in Bloomfield.  The Taxpayer sold 4,190,724 gallons of diesel fuel to registered New Mexico suppliers, on which no Special Fuel Suppliers Tax or Petroleum Products Loading Fee were due.  The Taxpayer also sold 129,439 gallons to unregistered suppliers and remitted Special Fuel Suppliers Taxes and Petroleum Products Loading Fees on these sales.  The Taxpayer later filed a claim for refund for the Special Fuel Suppliers Taxes and Petroleum Products Loading Fees it paid to the corporation upon purchasing the diesel fuel originally.  The Department denied the claim for refund and the Taxpayer filed a protest of that denial.  Because the Taxpayer did not pay any taxes to the State of New Mexico on the corporation’s importation of diesel fuel into the state, the Taxpayer is not eligible to claim a refund of those taxes.  Additionally, the Taxpayer could not provide evidence showing that the small percentage of fuel that it sold to unregistered suppliers and paid taxes to the state on was the purchased fuel on which taxes had already been paid.  The Taxpayer’s protest was denied.



Albuquerque Valve & Fitting Co.

The Taxpayer sells tangible personal property in New Mexico.  On August 30, 2007, the Department notified the Taxpayer of an audit for gross receipts, compensating tax, and worker’s comp fee for reporting periods July 2004 through August 2007. In addition to two previous letters reminding Taxpayer of the importance of possessing any nontaxable transaction certificates (NTTCs) supporting a claimed deduction, on October 29, 2007 the Department sent the Taxpayer formal 60-day notice of the requirement to possess and execute any necessary NTTCs by December 28, 2007, or any claimed deductions would be disallowed.  The Taxpayer and the Department agreed to conduct the audit based on sample invoices, which they broke into three strata based on the invoice amounts.  Those invoices in the two lower strata would be audited based on a random sample, while all invoices in the highest dollar amount group would all be audited.  Upon completing the audit, the Department had disallowed several of the Taxpayer’s deductions because an improper type of NTTC was used for one claimed deduction, multijurisdictional sales and use tax certificates (MTCs) were used for several deductions where the Department believed that NTTCs should have been used because the issuers had New Mexico taxpayer identification numbers, and no NTTC was timely possessed for another claimed deduction. Based on the disallowed deductions, the Department calculated a percentage of error in the sample strata and assessed the Taxpayer for gross receipts tax, compensating tax, and interest.  The Taxpayer protested the gross receipts portions of the assessment, limited to the disallowed deductions that required NTTCs. The issues at protest were (1) whether the Department should have allowed the MTCs in lieu of NTTCs for the relevant claimed deductions, (2) whether the Department should have accepted Taxpayer’s untimely NTTC for one claimed deduction, (3) whether Taxpayer could rely on an improper NTTC in good faith for another claimed deduction, and finally (4) whether other fairness concerns related to the audit process and delay in protest warranted additional Taxpayer relief. For the first issue, the hearing officer determined under controlling case law that the Department was not free to invalidate that MTCs based merely on the presence of the issuers’ New Mexico tax identification number on the front of the document. Consequently, without more proof of invalidity from the Department, the hearing officer ordered that the Department accept the MTCs, allow those deductions related to MTCs, recalculate the percentage of error as necessary in light of the allowable deductions, and update Taxpayer’s outstanding total  liability. On the second issue, the hearing officer found that the Department properly disallowed the claimed deduction because the Department is not allowed by statute to accept NTTCs after the 60-day deadline. On the third issue, the hearing officer found that the Taxpayer could not rely on incorrect type of NTTC because the transaction at issue involved the sale of goods rather than the sale of services covered by the NTTC. Finally, the hearing officer found that no further abatements were appropriate despite Taxpayer’s fairness concerns with the audit process and the delay in protest. The Taxpayer’s protest was granted in part and denied in part.



Louis Ortega dba Perfection Flooring Maintenance

The Taxpayer provides floor maintenance services in New Mexico.  Based on a Schedule C tapematch, the Department conducted a limited scope audit of the Taxpayer’s 2005 and 2006 gross receipts in 2009.  Based upon the Department’s findings, the Taxpayer received assessments for gross receipts tax, penalty and interest for each of the two tax years.  The Taxpayer protested both assessments.  In both 2005 and 2006, the Taxpayer performed services for two non-profit religious charities.  These charities provided the Taxpayer with a Type 9 nontaxable transaction certificate (NTTC) for his services.  Because of this, the Taxpayer did not pass along the tax to the charities, or pay gross receipts tax himself.  At hearing, the Taxpayer conceded that he had improperly relied on this NTTC for his services and that the Department’s assessment on these receipts was correct.  In 2006, the Taxpayer also performed services for a chain of retail stores in New Mexico as a subcontractor to an Illinois company.  The Taxpayer believed that he was entitled to a gross receipts tax deduction for these receipts as a subcontractor performing services for resale.  The Taxpayer was not given an NTTC to support this deduction.  During the audit, on February 18, 2009, the Department sent a notice of audit commencement to the Taxpayer, advising him that he had 60 days (until April 19, 2009) to possess any NTTC’s necessary to support his deductions.  The Taxpayer contacted the Illinois company several times, and was provided with a Type 5 NTTC on June 30, 2009, more than two months after the 60 day deadline.  The Department informed the Taxpayer that it could not honor the NTTC because it was not obtained by the deadline.  The issue to be decided at hearing was whether the Department should have accepted the NTTC, and whether the Taxpayer’s efforts to obtain it could excuse his missing the deadline.  Because the language in the statute is clear, the Department is not authorized to accept the NTTC after the deadline and cannot allow the deduction claimed by the Taxpayer.  The Taxpayer’s protest was denied.



St. Mary Land & Exploration Company

The Taxpayer timely filed a corporate income tax return on September 15, 2006.  On June 24, 2009, the Taxpayer filed an amended corporate income tax return to reflect changes in apportionment percentages and to include New Mexico income tax withheld from oil and gas proceeds.  This amended return included a request for refund.  The Department partially granted the refund, but denied a portion of it claiming it needed more information.  The Taxpayer had already provided the Department with the information it was requesting.  The Taxpayer failed to protest the partial denial of the refund.  The Taxpayer believed that it had resolved the document issue when it spoke with Department personnel regarding the reason for the partial denial.  The Taxpayer filed a second amended return on April 28, 2010, requesting the partial refund it had been denied.  The amended return was filed outside of the statutory period for claiming a refund for the tax year at issue.  The Taxpayer filed a protest to the partial denial of the refund at this time.  The Hearing Officer found that the Department properly denied the claim for refund as they did not have authority to grant a refund after the statute of limitations had passed.  The Taxpayer’s protest was denied.



American Medical Alarms, Inc.

The Taxpayer is a corporation domiciled in Illinois, who sells medical alarm monitoring services.  It began selling these services in New Mexico in January 2000.  In January 2008, the Taxpayer registered with the Department and began filing and remitting gross receipts taxes on the services it performs in New Mexico.  In May 2008, the Department conducted a desk audit of the Taxpayer, and on July 3, 2008, assessed the Taxpayer for gross receipts tax, penalty and interest for tax years January 31, 2001 through December 31, 2007.  The Taxpayer filed a protest to the assessment.  The Taxpayer has no offices, employees, stores, or other presence of that nature in New Mexico.  The service provided by the Taxpayer is to monitor medical alarm equipment it installs in a customer’s residence.  The Taxpayer charges a monthly fee for monitoring of and use of an alarm console, pendant, or wristband transmitter, as well as a fee for responding to emergency calls made by the customer.  The Taxpayer retains ownership of the medical alarm equipment and is responsible for repairing that equipment.  The call center responsible for monitoring emergency calls from New Mexico customers is in California.  The issue to be determined is whether the services provided by the Taxpayer are performed in New Mexico or in California.  The nature of the Taxpayer’s business, and the services it provides to its New Mexico customers, demonstrate that the Taxpayer’s services are performed in New Mexico.  The Taxpayer’s protest was denied.



Club 33, Inc.

Taxpayer was selected for an audit before August 2010.  On August 30, 2010, Taxpayer’s President submitted a Tax Information Authorization designating their attorney as Taxpayer’s representative.  On August 31, 2010, the Department generated three notices of assessment addressed directly to Taxpayer’s address rather than their attorney’s address on file with the Department.  There is no evidence that established when the Department in fact mailed these notices of assessment.  In October 2010, the Department issued Taxpayer a notice of lien, which the Taxpayer brought to their attorney in early November.  Upon learning of the assessments, Taxpayer’s attorney contacted the Department by phone on November 16, 2010 to ask for an extension of time to file a protest to the notices of assessment.  The Department employee stated that she needed to speak to her supervisor and would get back to the attorney.  On November 18, 2010, the employee sent an email to the attorney stating that he had an extension until the end of November.  Taxpayer’s attorney filed a protest on their behalf on November 30, 2010.  Nearly a year later, on October 7, 2011, the Department sent a letter informing Taxpayer that their protest was untimely and invalid because it was filed one-day late.  On October 31, 2011, Taxpayer filed a second protest to the denial of the first protest.  A hearing was held and the only matter to be decided at the hearing was whether the first protest was timely.  Based upon the lack of evidence showing the specific mailing date of the assessments (which would have established both an effective assessment and the exact beginning of the 90-day period for timely protest), the assessments not being sent to the correct address, and the email showing an extension, the hearing officer found no factual basis to find the first protest letter untimely. Therefore, Taxpayer’s second protest was granted: the Department is to accept the original protest to the assessments as timely and request a hearing at a later time regarding the underlying assessments.

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