Michele Giacomo

19-12

Between October 12, 2017, and November 1, 2017, the Department issued warrants of levy to multiple entities in order to collect a gross receipts tax liability for Giacomo Medical, Inc, the business of Michael Giacomo, the Taxpayer’s spouse. On January 30, 2018, Michele and Michael Giacomo submitted a written protest of the notice of levy. The primary issue in this protest was whether the Department should be permitted to levy the Taxpayer’s IRA account in order to collect a tax liability for her spouse’s business. The Department argued that the IRA of Ms. Giacomo was community property and therefore could be levied to satisfy a community tax liability. But the Hearing Officer by examining precedent and the law determined that Ms. Giacomo did not meet the definition of a taxpayer in this case. Gross receipts tax is stated in statute to be the responsibility of an individual engaging in business. Though the Taxpayer was a director of the business, she was never engaged in running the business. As a community property state New Mexico recognizes that the responsibility for income tax is shared equally by both spouses but, the Hearing Officer reasoned, this does not make a spouse responsible for gross receipts tax if that spouse was not engaged in business. The asset that was levied was also from an individual retirement account, rolled over from a 401K, which under federal law is created exclusively of the benefit of an individual or their beneficiaries. Moreover, the various statutory requirements for a levy of a person’s property were not followed in this case. Though the Department had sent several letters attempting to collect the liability, including notices of seizures intending to make Mr. Giacomo know of the Department’s imminent Levy of assets, these notices were sent to incorrect addresses and referenced a CRS number for entirely different business that Mr. Giacomo had started but was now defunct. The levies addressed to the entities holding the accounts for Ms. Giacomo stated they were for a liability for “Michele Giacomo DBA: Michael Giacomo.” This was incorrect, as the Taxpayer had never engaged in business under this name. The Department failed to accurately name the Taxpayer, identify the tax liability, or explain when the liability had been due. All of this having been decided, the Hearing Officer ordered that the money that had been seized be refunded and the protest was granted.