Kay E. Raines

00-18

Taxpayer was married in March 1994. Her husband died in January 1996. In August 1998, the Department issued an assessment for gross receipts tax, penalty and interest due on the business income earned by the Taxpayer’s husband during the 1994 tax year. Taxpayer filed a written protest in October 1998 raising the following issues: 1) Taxpayer never participated in the spouse’s business; 2) if the Taxpayer was engaging in business it was isolated and occasional; 3) the Department is barred from collecting gross receipts tax because (a) the Department failed to file a claim against the husband’s estate; (b) the value of the estate was less than the amount of the family and personal property allowances, and (c) the death of the husband severed the community; 4) the Department failed to promptly set a hearing and is barred from pursuing collection of the protested assessment; and 5) Taxpayer is an innocent spouse as defined in the Internal Revenue Code. Held: Taxpayer is not liable for gross receipts tax imposed on income earned prior to the marriage. Taxpayer is liable for gross receipts tax on business income earned during the marriage, but only to the extent of her interest in community property at the time of her husband’s death. The Department is barred from pursuing collection of its assessment against property Taxpayer received as family or personal property allowances and what she received as an heir or devisee of her husband’s estate. The delay in setting a hearing does not justify abatement of the assessment, nor is the Taxpayer entitled to innocent spouse relief.  Protest denied in part and granted in part.