Richard & Arlene Hall (Cornerstone)

01-32

The Taxpayer entered into an agreement to perform services as a subcontractor on a federal contract. The general contractor agreed to assume responsibility for the Taxpayer’s gross receipts tax, but did not honor its agreement and never reported or paid gross receipts tax on the Taxpayer’s behalf. In July 2000, the Department assessed the Taxpayer for gross receipts tax, penalty and interest. The Taxpayer protested the assessment making the following arguments: 1) all of his services were performed for the general contractor’s customer and not for the general contractor; 2) he did not bill the general contractor for gross receipts tax and it is now impossible for him to recover the tax; 3) his agreement with the general contractor shifted the responsibility for payment of his gross receipts tax to the general contractor; and 4) payment of the tax will create a financial hardship. Held: 1) Although the Taxpayer performed his services only once, there were two taxable transactions:  the Taxpayer’s sale of services to the general contractor and the general contractor’s resale of services to its customer. The Taxpayer is liable for gross receipts tax on his receipts from performing services as a subcontractor. 2) The gross receipts tax is imposed directly on the seller, and the Taxpayer’s failure to collect gross receipts tax from the buyer of his services does not relieve the Taxpayer of this liability.  3) A taxpayer may not delegate responsibility for payment of tax to a third party, and the Department is not bound by the terms of the Taxpayer’s private agreement with the general contractor. 4) The hearing officer is required to enforce the tax laws as written and does not have authority to order abatement of tax, penalty or interest based on a taxpayer’s individual economic circumstances.  Protest denied.