State Construction

17-38

On January 5, 2017, the Department assessed the Taxpayer for gross receipts tax, penalty and interest for the reporting periods starting January 1, 2010 through December 31, 2014. On February 3, 2017, the Taxpayer filed a timely formal protest letter with the Department. During the time at issue, the Taxpayer worked as a handyman and personal assistant. The Taxpayer was sometimes reimbursed for certain expenses incurred while working for certain customers. The Taxpayer separately stated the reimbursements and did not charge gross receipts tax on that amount to customers. On the Taxpayer’s federal Schedule C, reimbursement were included in the Taxpayer’s gross receipts. The Taxpayer argued that in certain circumstances, it would have been obvious to certain individuals that the Taxpayer was acting on behalf of a third party. For places that the Taxpayer frequented regularly on behalf of customers a statement was prepared and presented to the seller to sign. The Taxpayer explained that these statements were to establish knowledge that the Taxpayer was purchasing goods or services in a disclosed agent capacity. The matter to be decided in this hearing is whether certain reimbursed expenses are subject to gross receipts tax. The Taxpayer argues that gross receipts tax should not be due on the reimbursed expenditures because he incurred the expenses as an agent on behalf of a customer while acting in a disclosed agency capacity. The Department asserted that such receipts were subject to tax because there is insufficient evidence to find that the Taxpayer was a disclosed agent of his customers when incurring the expenditures. The Taxpayers invoices met the bookkeeping requirements in Regulation 3.2.1.19 (C) NMAC, because the reimbursements were separately stated on the invoice. However, the Taxpayer’s evidence failed to establish the existence of a disclosed agency relationship in which the Taxpayer had the power to bind his customer in contract with a third party. The Taxpayer provided a brief unsworn statement from one of his customers indicating that he was “an agent and assistant” to his customer. The Hearing Officer determined that there is no suggestion that the Taxpayer had the authority to bind the customer to an obligation that the Taxpayer created. The Hearing Officer determined that the Taxpayer did not overcome the presumption of correctness to establish that the Taxpayer was a disclosed agent for his customers for the reimbursed expenditures or for the penalty associated with the assessment. For the reasons above, the Taxpayer’s protest is denied.