Mountain Liquors LLC

16-15

On September 9, 2015, the Department assessed the Taxpayer for tax, penalty and interest as a successor in business to Trail House Enterprise LLC.  On September 22, 2015, the Taxpayer protested the assessment.  The Taxpayer is a limited liability company operated by a sole member, who is also the sole member of Trail House, LLC.  The Taxpayer and Trail House LLC jointly own commercial property at which the two LLCs operated a grocery store, liquor store and deli, using the Taxpayers liquor license. Trail House Enterprise LLC is a separate entity owned by two other individuals.  On February 22, 2012, the Taxpayer entered into lease agreements with Trail House Enterprise LLC for the lease of both the commercial property and liquor license.  Under the terms of the lease, Trail House Enterprise LLC was liable for the payment of all federal state and local taxes and failure to do so would be grounds for default under the agreement.  After entering into the leases, Trail House Enterprise LLC took over operation of the grocery store, liquor store and deli.  Trail House Enterprise LLC fell significantly behind in its payment of both gross receipts taxes and liquor excise taxes.  It also fell behind in its payments to the Taxpayer.  On or before February 16, 2015, the Taxpayer met with the owners of Trail House Enterprise LLC, who indicated that they wished to voluntarily terminate the lease agreements due to financial difficulties.  As part of the termination, the Taxpayer and the LLC owners agreed to conduct a full inventory of all merchandise at the property.  Upon termination of the leases, the Taxpayer took possession of the property, liquor license, and all of the inventory, and began operating the grocery store, liquor store and deli again, using some of the same signage as when Trail House Enterprise LLC operated the business.  In order to protect the value of the businesses, the Taxpayer paid off some of Trail House Enterprise LLC’s outstanding liabilities, including the outstanding liquor excise tax.  The Taxpayer’s sole member asserted at the hearing that when the Taxpayer paid the outstanding liquor excise tax liability it was informed that the payment extinguished all liability, although the email exchanges between the member and Department employees did not support that.  Regulation 3.1.10.16 NMAC addresses what constitutes a successor in business, and if one of the eight indicia are present, the Department may presume that ownership of a business has transferred to a successor in business, who is then responsible for tax liability due under Section 7-1-61 NMSA 1978.  In this case, at least four of the factors listed are met, and the Taxpayer was presumed to be a successor in business.  The Taxpayer argued that the Department should pursue the owners of Trail House Enterprises LLC, but given the way the statute is structured, the Taxpayer is liable as a successor in business, though it may choose to pursue contractual legal action against them if it wishes to do so.  The hearing officer ordered the penalty and interest to be abated based on a prior appellate court decision regarding the imposition of penalty and interest on a successor in business, but found that the tax was properly assessed.  The Taxpayer’s protest was granted in part and denied in part.