Albuquerque Valve & Fitting Co.

12-17

The Taxpayer sells tangible personal property in New Mexico.  On August 30, 2007, the Department notified the Taxpayer of an audit for gross receipts, compensating tax, and worker’s comp fee for reporting periods July 2004 through August 2007. In addition to two previous letters reminding Taxpayer of the importance of possessing any nontaxable transaction certificates (NTTCs) supporting a claimed deduction, on October 29, 2007 the Department sent the Taxpayer formal 60-day notice of the requirement to possess and execute any necessary NTTCs by December 28, 2007, or any claimed deductions would be disallowed.  The Taxpayer and the Department agreed to conduct the audit based on sample invoices, which they broke into three strata based on the invoice amounts.  Those invoices in the two lower strata would be audited based on a random sample, while all invoices in the highest dollar amount group would all be audited.  Upon completing the audit, the Department had disallowed several of the Taxpayer’s deductions because an improper type of NTTC was used for one claimed deduction, multijurisdictional sales and use tax certificates (MTCs) were used for several deductions where the Department believed that NTTCs should have been used because the issuers had New Mexico taxpayer identification numbers, and no NTTC was timely possessed for another claimed deduction. Based on the disallowed deductions, the Department calculated a percentage of error in the sample strata and assessed the Taxpayer for gross receipts tax, compensating tax, and interest.  The Taxpayer protested the gross receipts portions of the assessment, limited to the disallowed deductions that required NTTCs. The issues at protest were (1) whether the Department should have allowed the MTCs in lieu of NTTCs for the relevant claimed deductions, (2) whether the Department should have accepted Taxpayer’s untimely NTTC for one claimed deduction, (3) whether Taxpayer could rely on an improper NTTC in good faith for another claimed deduction, and finally (4) whether other fairness concerns related to the audit process and delay in protest warranted additional Taxpayer relief. For the first issue, the hearing officer determined under controlling case law that the Department was not free to invalidate that MTCs based merely on the presence of the issuers’ New Mexico tax identification number on the front of the document. Consequently, without more proof of invalidity from the Department, the hearing officer ordered that the Department accept the MTCs, allow those deductions related to MTCs, recalculate the percentage of error as necessary in light of the allowable deductions, and update Taxpayer’s outstanding total  liability. On the second issue, the hearing officer found that the Department properly disallowed the claimed deduction because the Department is not allowed by statute to accept NTTCs after the 60-day deadline. On the third issue, the hearing officer found that the Taxpayer could not rely on incorrect type of NTTC because the transaction at issue involved the sale of goods rather than the sale of services covered by the NTTC. Finally, the hearing officer found that no further abatements were appropriate despite Taxpayer’s fairness concerns with the audit process and the delay in protest. The Taxpayer’s protest was granted in part and denied in part.