Abelardo Ortiz

12-11

The Taxpayer was engaged in a picking and harvesting business in New Mexico in 2008.  The Taxpayer paid gross receipts tax to the Department for 2008.  He then learned that his gross receipts were subject to a deduction under Section 7-9-59 NMSA 1978, and he filed a claim for refund.  The Department sent a letter to the Taxpayer requesting invoices and statements for each farm with details of the duties performed.  The Taxpayer responded that he did not have any invoices.  The Taxpayer did send statements of 1099 forms from the farms where he had worked to the Department.  The Department sent another letter asking for invoices.  After additional contact with the Department, the Taxpayer felt that he would be unable to get this resolved on his own, so he hired an attorney and re-filed his claim for refund.  The Department again sent a letter requesting invoices.  The Taxpayer filed a formal protest and also requested that he be awarded costs and fees.  After the protest was filed, the employee who was assigned to the case requested amended returns for the periods in question.  When the amended returns were provided, the Department granted the refund.  The issue to be decided at the hearing was whether the Taxpayer was entitled to an award of reasonable administrative costs as the prevailing party.  The Taxpayer determined an amount that he wished to be awarded for attorneys fees, and the Department did not have any evidence to show that the amount was unreasonable. And, based upon the facts of the situation, the hearing officer found that the Taxpayer should be awarded administrative costs pursuant to Section 7-1-29.1 NMSA 1978.  The Taxpayer’s protest was granted.