Roger A. Landavazo

99-07

Taxpayer is an authorized Sears retailer who operates a Sears Retail sales facility on behalf of Sears. All merchandise it sells is owned by Sears and Sears pays gross receipts tax on 100% of the sales price of merchandise sold by the Taxpayer. The Taxpayer receives a commission from Sears on the merchandise it sells. Taxpayer was assessed gross receipts tax, penalty and interest upon the commissions it received from Sears. Taxpayer protested the assessment arguing that Sears had already paid the gross receipts tax, that the assessment constituted illegal double taxation, that the imposition of tax deprived the Taxpayer of equal protection of the laws and violated the equal and uniform taxation provision of the New Mexico Constitution.  Taxpayer also argued that the commissions were not gross receipts under Section 7-9-3 (F)(2) (f) because the commissions were received on behalf of another in a disclosed agency capacity. Taxpayer also protested penalty based upon its reliance upon the Department’s treatment of another Sears retailer where the Department concluded that Sears had paid the tax on the commissions on behalf of its retailer. Protest was denied with respect to the tax because there are two separate taxable transactions, the sale of merchandise by Sears and the receipt of a commission by the Sears retailer.  Additionally, double taxation is not inherently illegal. The Taxpayer failed to carry its burden of proving that no rational basis exists for the differential taxation alleged and thus there is no denial of equal protection. The equal and uniform taxation clause, Article VIII, Section 1, applies to property taxes and not gross receipts taxes. Finally, the commissions were gross receipts. They were not received on behalf of another in a disclosed agency capacity. The penalty was ordered to be abated because the taxpayer was not negligent in failing to pay taxes because it reasonably relied upon the Department’s treatment of the other Sears retailer whose tax was abated.