Bogle Management Co., Inc.

16-17

On December 19,2007, the Department assessed the Taxpayer for gross receipts tax, penalty and interest for the tax periods from January 31, 2000 through June 30, 2006.  On January 24, 2008, the Taxpayer filed a protest to the assessment.  The Taxpayer is an Arizona corporation that began operations in 1976, as was first registered in New Mexico for gross receipts tax purposes in 1977.  The Taxpayer was originally affiliated with two farming operations that are located and engaged in agricultural business in New Mexico.  At the time of its incorporation, the Taxpayer was owned by the same people who owned the farms.  The Taxpayer was created as a separate entity to provide retirement and medical benefits for the managers of the farms, which they did not want to provide to the general employees.  In 1997, the Taxpayer was acquired by new owners and operators, a man who had provided all of the accounting services for the farms and the taxpayer and was aware of how they interacted, and his wife.  Under this new ownership, the Taxpayer entered into a management agreement with each of the farms, under which the Taxpayer agreed to supply the farms with knowledgeable and skilled persons to act as the managers of the farms.  The agreement set that the farms would reimburse the Taxpayer for payments issued to the managers, to include salary, the cost of worker’s compensation, payroll taxes, benefits, and other associated costs.  The agreement also set the Taxpayer’s compensation for management fees as an amount equal to 10% of the gross salary of the managers.  The Taxpayer did its calculations and other activities related to the payroll services for the managers in Georgia, where the Taxpayer’s owners resided.  The Taxpayer paid the managers’ compensation, withholding tax, and took care of the benefit programs, issued paychecks by mail to the farms to distribute to the managers and, at the end of the tax years, would issue W-2s to the managers.  As the entity in charge of issuing the managers’ paychecks, the Taxpayer was required to pay withholding taxes and issue W-2s, which meant that the Taxpayer was the employer of the managers.  As a result, the Taxpayer had a physical presence in New Mexico through the managers.  The farms would dictate to the Taxpayer who the managers were, what each manager’s salary would be, and if any existing manager’s salary should be increased.  The farms controlled and supervised all of the work performed by the managers.  In 2007, the Taxpayer was audited by the Department, which resulted in the assessment of gross receipts taxes on the receipts related to the management fees and the payroll reimbursements.  The Taxpayer argued that even if it was doing business in New Mexico, its payments from the farms were excluded from gross receipts tax because the Taxpayer was acting as a disclosed agent on behalf of the farms.  As related to the management fees, even if the Taxpayer were acting as an agent, the fees belonged solely to the Taxpayer in exchange for the provision of services and are subject to gross receipts tax.  Regulation 3.2.1.19 NMAC interprets what constitutes a disclosed agency relationship, and the Taxpayer was not able to show that it met the requirements of actual disclosure, or the bookkeeping requirements.  The Taxpayer also argued that it was a joint employer, which is a determination made by the United States Department of Labor, however the Taxpayer never provided any evidence showing that such a determination was ever made.  The hearing officer found that the receipts of the Taxpayer were subject to gross receipts tax and interest as assessed, but did order the penalty to be abated because the Taxpayer failed to pay the taxes due to a mistake of law in believing in good faith that it was a disclosed agent of the farms, due the long-standing relationship between the farms and the Taxpayer.  The Taxpayer’s protest was granted in part and denied in part.