Dlorah, Inc

02-31

The Taxpayer is a corporation with its principal offices in South Dakota,  The Taxpayer is engaged in the business of operating for-profit educational institutions in six states,  including New Mexico.  Following an audit, the Department assessed the Taxpayer for gross receipts tax, penalty and interest attributable to the Taxpayer’s failure to pay gross receipts tax on its tuition receipts during the period June 1991 through November 1997. The Taxpayer protested the imposition of penalty, arguing that it reasonably relied on its South Dakota accounting firm to insure that all of the Taxpayer’s taxes were properly paid.  The Taxpayer failed, however, to provide any evidence that the accounting firm was asked to prepare or review the taxpayer’s gross receipts tax returns or that it was ever consulted concerning the Taxpayer’s liability for tax on the receipts at issue.  Held:  In order to support a finding of nonnegligence, a taxpayer’s reliance on a tax professional must be active and informed, not passive and unaware.  In this case, the Taxpayer’s lack of knowledge concerning its liability for gross receipts tax comes within the definition of negligence in Section 7-1-69 (A) NMSA 1978, and penalty was properly imposed.  Protest denied.