Hector Martinez

16-46

On April 1, 2016, the Department assessed the Taxpayer for gross receipts tax, penalty and interest for the CRS reporting periods from January 1, 2009 through December 31, 2013.  On April 12, 2016, the Taxpayer protested the Department’s assessment.  The Taxpayer is a sole-proprietor who provides tile-installation services.  During the relevant period, the Taxpayer worked with a bookkeeper to prepare his taxes.  The bookkeeper informed the Taxpayer that he needed to obtain nontaxable transaction certificates (NTTCs) for his work.  The company to whom the Taxpayer was providing his services during the relevant period issued a Type 2 NTTC on August 5, 2011, but did not properly complete that NTTC by failing to fill out any seller information and not completing the execution date.  The company also provided the Taxpayer with the buyer’s copy of the incomplete NTTC, rather than the seller’s copy that should have been provided.  Two years after the initial execution date, someone handwrote in the seller information on the buyer’s copy of the NTTC and added an execution date of April 23, 2013.  The Department’s internal database of issued NTTCs shows the Type 2 NTTC that the company attempted to execute to the Taxpayer as incomplete.  Through its Schedule C mismatch program with the IRS, the Department detected a discrepancy between the amount of gross receipts tax reported and paid to the Department and the amount of business income reported to the IRS by the Taxpayer.  On January 1, 2016, the Department mailed the Taxpayer a limited scope audit commencement notice, informing the Taxpayer that he had 60-days, until March 1, 2016, to present any required NTTCs.  The Taxpayer submitted all his documentation to the Department in January of 2016.  The Department informed the Taxpayer and his bookkeeper that the Type 2 NTTC was inadequate to support the claimed deduction.  The Taxpayer did not timely present a properly completed and executed NTTC by the deadline.  On March 1, 2016, the Department sent the Taxpayer a letter stating that there remained a discrepancy and the Department was preparing to issue an assessment.  On March 18, 2016, 17 days after the deadline, the Taxpayer presented an untimely but properly executed Type 5 NTTC from the company.  The Taxpayer is not allowed to claim and the Department is not allowed to grant the Taxpayer’s claimed deduction under Section 7-9-51 NMSA 1978 without a timely executed NTTC.  The hearing officer determined that the gross receipts tax and interest were properly assessed.  The hearing officer did order the penalty to be abated in this case because the Taxpayer’s bookkeeper failed to inform him that he had both the wrong type of NTTC and that the NTTC was not properly completed and executed.  The Taxpayer’s protest was granted in part and denied in part.