Hilario Leos & Christina Luchetti-Leos and C&R Nutritional Club

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On July 20, 2016, the Department assessed the Taxpayer for gross receipts tax, penalty and interest for the tax periods from January 1, 2010 through December 31, 2012 for account A and January 1, 2012 through December 31, 2012 for account B. On August 23, 2016 the Taxpayer entered into a Short Term payment Plan with the Department for the period of January 1, 2010 to December 31, 2011. The Taxpayers timely protested the assessments for the periods included in the plans in addition to reporting period in 2012. The Department acknowledged the receipt of a valid protest with respect to the 2012 assessments. In a separate piece of correspondence the Department asserted that there was no right of protest with respect to the period’s subject of the Short Term Payment Plans because the Taxpayer waived those rights by executing the plans. Starting in 2009 the Taxpayers started using a tax preparer to file their federal and state income taxes during the relevant period of time. The tax preparer provided documents in the protest claiming that the Taxpayer were not subject to pay New Mexico gross receipts tax because the goods they were selling were purchased out of state and they paid tax in the other state. The Taxpayers informed the Department that the tax preparer did not inform them of any gross receipts tax obligations in New Mexico. It was found that the taxpayers were selling goods in New Mexico and were subject to gross receipts tax. The evidence provided was insufficient to find that the tax preparer was a competent tax accountant due to lack of the individual being qualified, credentials, or competent in the area of New Mexico gross receipts tax. Despite the good faith intentions of the Taxpayers in this case, it was determined when a taxpayer fails to make timely payment of taxes to the state interest shall be paid per Section 7-1-67 NMSA 1978. The assessment of interest is mandatory and the Department is without legal authority to abate it despite the Taxpayers’ good faith intentions. Penalty may only be abated when a Taxpayer is able to show that he or she was not negligent in failing to file. Pursuant to the definition of negligence in Regulation 3.1.11.10 NMAC, the Taxpayer was negligent in failing to report and pay gross receipts tax. The Taxpayer’s protest was denied.