Maintenance Service Systems, Inc.

99-02

Taxpayer provides janitorial services in New Mexico.  Taxpayer requires its customers to provide a place to store cleaning supplies and cleaning equipment on the customer’s premises and it informs its customers that they own the cleaning supplies and may use them when they are not being used by the Taxpayer’s employees performing janitorial services. When soliciting new business, the Taxpayer breaks out the cost of the monthly janitorial services fee, which includes a cost of 10% of the labor cost for cleaning supplies and 4.7% of the labor cost for cleaning equipment. However, when billing its customers, the Taxpayer most commonly only bills the agreed upon monthly charge for janitorial services and does not break out the cost of the cleaning supplies and equipment.  The Taxpayer was assessed compensating tax on the value of cleaning supplies and equipment purchased using a type 2 nontaxable transaction certificate, which is used for purchasing tangible personal property for resale. The Taxpayer also was assessed gross receipts tax for claiming a deduction from gross receipts tax for the sale of tangible personal property. The Department’s assessment gave credit against the assessment of compensating tax and gross receipts tax in all instances where the Taxpayer could demonstrate that it separately reflected the charge for the supplies and equipment on its invoices to its customers from the charge for janitorial services pursuant to Regulation GR 47:3.The Taxpayer’s protest was denied. Where the Taxpayer used the supplies and equipment in providing janitorial services to its customers and the charges for supplies and equipment were not separately reflected on the Taxpayer’s billings to its customers, the Taxpayer was not reselling tangible personal property to its customers.  Rather, it was selling janitorial services and the supplies and equipment were used by the Taxpayer in performing those services. Because the value of the supplies and equipment were incidental to the value of the janitorial services provided, they become part of the services sold to the Taxpayer’s customers.