BBCB, LLC

14-33

The Taxpayer is a regional developer for a corporation based in Arizona.  The Taxpayer’s principal place of business is in Bernalillo County, New Mexico.  As a regional developer, the Taxpayer sells licenses to franchisees, helps the franchisees with set-up, and has limited duties related to checking in on the franchisees once the business is operating.  The Taxpayer receives a commission on every license sold, as well as a monthly commission on monthly royalties paid to the corporation by franchisees.  The Taxpayer was filing and paying gross receipts tax to include the commission on the monthly royalties it received.  The Taxpayer began working with an enrolled agent, who advised that the commission on monthly royalties was not subject to gross receipts tax.  Based on this advice, the Taxpayer filed an application for refund on October 11, 2012, for the December 2008 tax period, and included a copy of its royalty reports from the corporation for the 2008 tax year.  On October 31, 2012, the Department denied the request for refund.  On November 26, 2012, the Taxpayer filed a formal protest to the denial.  In April 2013, the Department granted a partial refund for the December 2008 tax period.  This refund was determined by a review of the royalty report, a determining which commissions on royalties were related to franchisees within the state of New Mexico, and applying the gross receipts tax to those commissions at the rate where the franchisees were located.  The Taxpayer and the Department both presented arguments at the hearing related to the taxability of the commissions on royalties.  It was determined by the hearing officer that the commissions were taxable, as they are included in the definition of gross receipts, and in this situation, were dependent upon the Taxpayer performing its later check-ins on the franchisees to continue receiving these commissions.  However, it was also decided at hearing that the refund the Taxpayer received was not calculated correctly, as the rate used should have been the rate of the Taxpayer’s business location, rather than where the franchisees were located.  This resulted in the Taxpayer being owed an additional amount.  The Taxpayer’s protest was granted in part and denied in part.