Oscar Herrera

02-29

In 1995, the Taxpayer worked as a trucker hauling materials in New Mexico. In May 1999, as a result of information received from the IRS, the Department assessed the Taxpayer for gross receipts tax, interest and penalty on the business income reported on his 1995 federal income tax return. The Taxpayer paid the assessment, then filed a claim for refund for the amount paid. When the Department denied the Taxpayer’s claim for refund, the Taxpayer filed a written protest and argued that: 1) the Taxpayer was an employee during 1995 and is entitled to claim the deduction for employee wages provided in Section 7-9-17 NMSA 1978 and 2) in the event the Taxpayer was working as an independent contractor, the NTTC issued to the Taxpayer should be accepted to support the deduction for selling services for resale provided in Section 7-9-48 NMSA 1978. Held: 1) The Taxpayer worked as an independent contractor and is not entitled to the exemption for employee wages; and 2) The Taxpayer was not in possession of required NTTC’s within the 60-day period set out in Section 7-9-43 NMSA 1978 and is not entitled to the deduction for receipts from selling services for resale. Protest denied.