SSC Albuquerque Operating Company LLC

18-16

On June 5, 2017, the Department issued a refund denial letter for a gross receipts tax application for refund that was submitted for periods starting January 2014 and ending January 2016. On July 31, 2017, the Taxpayer filed a timely formal protest with the Department. The Taxpayer operates an assisted living residence in New Mexico and maintained the prior owner’s method of calculating the deduction under Section 7-9-53, NMSA 1978.Until August of 2016, when an application for refund was submitted to the Department along with amended returns which had the recalculated deduction for the period at issue. The Department denied the application for refund as it believed that the new methodology used to claim the refund was unreasonable. The Department did research on the average rental rate per square foot for residential living space in the Taxpayer’s area and used that number to calculate what would have been an acceptable amount for the deduction. The issue to be determined during the hearing is if the new method that the Taxpayer used to claim the additional portion of the deduction on the amended returns and application for refund was reasonable. The Taxpayer argues that the rate charged to customers only includes specific services which were deducted from the gross receipts which leaves the true cost of rent eligible for the deduction. However, based on a sample agreement that was provided it was clear that the rate charged to the customers also included many more services and stated that the rate included any associated gross receipts tax due. The Department argued that the methodology used by the taxpayer fails to be reasonable as it does not take into account the fair market value of the real property, which should be the principal variable to which the Taxpayer’s methodology is created. The Hearing Officer points out that the Taxpayer did not provide any evidence to show that it was able to demand a higher rate for the property it is leasing to its customers. Based on the information provided, the Hearing Officer determined that the amount of the deduction being claimed should correlate in some way to the fair market value of the real property subject to the deduction and any deviation from that number should be supported by evidence. For the forgoing reasons, the Taxpayer’s protest was denied.