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 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 TILLER DESIGN,

 3          Protestant-Appellant,

 4 v.                                                                   No. A-1-CA-36090

 5 NEW MEXICO TAXATION AND
 6 REVENUE DEPARTMENT,

 7          Respondent-Appellee,

 8   IN THE MATTER OF THE PROTEST
 9   OF TILLER DESIGN TO ASSESSMENT
10   ISSUED UNDER LETTER ID
11   NO. L0894277680.

12 APPEAL FROM ADMINISTRATIVE HEARINGS OFFICE
13 Brian VanDenzen, Chief Hearing Officer

14 NM Financial Law, P.C.
15 Don F. Harris
16 Albuquerque, NM

17 for Appellant

18 Hector Balderas, Attorney General
19 Peter Breen, Special Assistant Attorney General
20 Santa Fe, NM
 1 for Appellee
 2

 3                             MEMORANDUM OPINION

 4 BOGARDUS, Judge.

 5   {1}    Tiller Design (Taxpayer) appeals from a decision and order of the

 6 Administrative Hearings Office (AHO) upholding the New Mexico Taxation and

 7 Revenue Department’s (the Department) assessment of gross receipts tax under the

 8 Gross Receipts and Compensating Tax Act, NMSA 1978, §§ 7-9-1 to -116 (1966,

 9 as amended through 2019), on its receipts from the short-term vacation rental of its

10 homes and interest on the tax owed. The issue presented in this appeal is whether

11 receipts received from lodgers for vacation rentals of homes are subject to the

12 gross receipts tax. We conclude that they are and therefore affirm the decision and

13 order.

14 BACKGROUND

15   {2}    In 2012, Taxpayer owned and rented out two single-family homes in the

16 Albuquerque area through Vacation Rental by Owner/HomeAway’s (VRBO)

17 website. Taxpayer entered into rental agreements with the renters and charged fees

18 and taxes in exchange for their use of the entire rented home’s property. Renter

19 stays averaged five to seven days, and no stay lasted thirty days or longer.

20   {3}    In 2015, the Department assessed Taxpayer for gross receipts tax on receipts

21 from Taxpayer’s 2012 rentals of the properties and a penalty and interest
                                              2
 1 associated with the nonpayment. Taxpayer protested the assessment, claiming that

 2 a Department regulation, 3.2.116.10 NMAC, which pertains to leases of three or

 3 fewer units of real property, exempted it from the tax. After a hearing on the

 4 matter, the hearing officer determined that (1) 3.2.116.10 NMAC did not apply to

 5 Taxpayer and therefore Taxpayer was liable for the assessed tax and interest; and

 6 (2) Taxpayer’s reliance on the exemption contained in 3.3.116.10 NMAC was

 7 reasonable and made in good faith and as such Taxpayer was not liable for a civil

 8 negligence penalty under NMSA 1978, Section 7-1-69 (2008).

 9 DISCUSSION

10   {4}   On appeal, Taxpayer continues to assert that the Department’s assessment of

11 gross receipts tax is incorrect because Taxpayer is exempt from the gross receipts

12 tax as provided under 3.2.116.10 NMAC. The Department maintains that the

13 regulation does not apply to Taxpayer. Taxpayer further argues that the assessment

14 is incorrect because its receipts are subject to the rental deduction specified in

15 Section 7-9-53. The Department, meanwhile, argues that the receipts fall under an

16 exclusion to the deduction, thereby making them subject to the tax.

17 I.      Standard of Review and Presumptions

18   {5}   A taxpayer may appeal a decision and order of the AHO for further relief,

19 but we may set aside the decision and order only if it is “(1) arbitrary, capricious or




                                              3
 1 an abuse of discretion; (2) not supported by substantial evidence in the record; or

 2 (3) otherwise not in accordance with the law.” NMSA 1978, § 7-1-25(C) (2015).

 3   {6}   The parties to this case do not dispute the hearing officer’s findings of fact,

 4 but rather the meaning of the statutes in the Gross Receipts and Compensating Tax

 5 Act and related regulations that guided his conclusions of law. We, in turn, must

 6 interpret those statutes and regulations. Accordingly, we adhere to a de novo

 7 standard in our review. Quantum Corp. v. State Taxation & Revenue Dep’t, 1998-

 8 NMCA-050, ¶ 8, 125 N.M. 49, 956 P.2d 848. Nonetheless, “in state taxation cases,

 9 although we apply the de novo standard, we consider the issues through the lens of

10 a presumption that the Department’s assessment is correct.” Corr. Corp. of Am. v.

11 State, 2007-NMCA-148, ¶ 17, 142 N.M. 779, 170 P.3d 1017; see also NMSA

12 1978, Section 7-1-17(C) (2007) (“Any assessment of taxes or demand for payment

13 made by the department is presumed to be correct.”).

14   {7}   Additional principles guide our review. First, the Gross Receipts and

15 Compensating Tax Act establishes a presumption that all receipts are taxable.

16 Section 7-9-5(A). Second, when, as here, we construe a statutory exception to a

17 tax, we do so strictly in favor of the taxing authority. Chavez v. Comm’r of

18 Revenue, 1970-NMCA-116, ¶ 7, 82 N.M. 97, 476 P.2d 67.

19 II.     Taxpayer’s Receipts Are Not From the Lease of Real Property and May
20         Not Be Deducted From Gross Receipts Under Section 7-9-53



                                              4
 1   {8}   Taxpayer chiefly contends that it is exempted from gross receipts tax

 2 liability under 3.2.116.10 NMAC. The regulation relieves a taxpayer that leases

 3 three or fewer rental units of real property from having to register with, and report

 4 to, the Department for gross receipts tax purposes. Taxpayer argues that the

 5 regulation exempts it from the tax because Taxpayer was leasing only two rental

 6 units of real property. Before discussing the regulation, we first turn to Section 7-9-

 7 53, the statutory provision governing the deduction from gross receipts of receipts

 8 from the sale or lease of real property. We then resume our discussion of the

 9 regulation.

10   {9}   In construing Section 7-9-53, “we seek to give effect to the Legislature’s

11 intent, and in determining intent we look to the language used[.]” Valenzuela v.

12 Snyder, 2014-NMCA-061, ¶ 16, 326 P.3d 1120 (internal quotation marks and

13 citation omitted). “In addition, we . . . read the entire statute as a whole so that each

14 provision may be considered in relation to every other part.” Id. (internal quotation

15 marks and citation omitted). Overall, “[o]ur duty is to find that interpretation which

16 can most fairly be said to be imbedded in the statute in the sense of being most

17 harmonious with its scheme and with the general purpose that the Legislature

18 manifested.” Pittsburgh & Midway Coal Mining Co. v. Revenue Div., Taxation &

19 Revenue Dep’t, 1983-NMCA-019, ¶ 56, 99 N.M. 545, 660 P.2d 1027.




                                               5
 1   {10}   The pertinent provisions of Section 7-9-53 read as follows. The text

 2 pertaining to this portion of our discussion appears in italics.

 3          Deduction; gross receipts tax; sale or lease of real property and lease
 4          of manufactured homes.

 5                A.       Receipts from the lease of real property and from the
 6          lease of a manufactured home as provided in Subsection B of this
 7          section . . . may be deducted from gross receipts.

 8                 B.    Receipts from the rental of a manufactured home for a
 9          period of at least one month may be deducted from gross receipts.
10          Receipts received by hotels, motels, rooming houses, campgrounds,
11          guest ranches, trailer parks or similar facilities, except receipts
12          received by trailer parks from the rental of a space for a manufactured
13          home or recreational vehicle for a period of at least one month, from
14          lodgers, guests, roomers or occupants are not receipts from leasing
15          real property for the purposes of this section.

16 (Emphasis added.)

17   {11}   In other words, generally, receipts from the “lease of real property” may be

18 deducted, but receipts from the types of payers listed (e.g., lodgers) received by the

19 property types listed (e.g., hotels) are not “receipts from leasing real property” and

20 therefore may not be deducted.

21   {12}   Taxpayer argues that its receipts (1) are from leases of real property; and (2)

22 do not fall under Subsection (B)’s exclusion for receipts received by “hotels,

23 motels, rooming houses . . . or similar facilities[.]” Conversely, the Department

24 argues that the receipts (1) are from licenses to use real property, not leases of real

25 property; and (2) do fall under Subsection (B)’s exclusion.

                                               6
 1   {13}   The legal distinction between a “lease” and a “license” in Section 7-9-53’s

 2 broad context is material. For purposes of Subsection (A), the gross receipts tax’s

 3 imposition might turn on the distinction, which explains Taxpayer’s efforts to

 4 bring to our attention characteristics of its rental activities commonly associated

 5 with leases of real property. We have previously resolved questions similar to the

 6 one presented here by labeling an agreement a “lease” or a “license”; recognizing

 7 that, under Section 7-9-3(E), “the granting of a license to use property is licensing

 8 and is not a lease”; and deciding accordingly whether the deduction applied to the

 9 receipts at issue. But the receipts at issue in those cases clearly fell outside the

10 scope of Subsection (B) of Section 7-9-53. In Quantum, 1998-NMCA-050, ¶ 1, the

11 receipts at issue were from agreements with non-profit organizations to use space

12 for bingo games. In Grogan v. New Mexico Taxation & Revenue Department,

13 2003-NMCA-033, ¶ 8,133 N.M. 354, 62 P.3d 1236, the receipts at issue were from

14 shelf-display contracts with cigarette manufacturers. And in Corrections Corp. of

15 America, 2007-NMCA-148, ¶ 1, the receipts at issue were from agreements with

16 governmental agencies to incarcerate prisoners.

17   {14}   Here, the receipts at issue are from so-called rentals of short-term vacation

18 properties, a type of facility more akin to those expressly covered by Subsection

19 (B)’s exclusion. The question before us, then, is: Do the particular characteristics

20 of vacation rental homes qualify them as “similar facilities” to hotels, motels,

                                              7
 1 rooming houses, campgrounds, guest ranches, and trailer parks within the meaning

 2 of Section 7-9-53(B)?

 3   {15}   Taxpayer asserts that a short-term vacation rental home is not a “similar

 4 facility” because, in contrast to the other property types listed, a vacation rental

 5 home is not a multi-unit facility within a single property and does not feature

 6 common areas for occupants. Though a short-term vacation rental home might

 7 differ from the listed properties in these respects, nothing in the statute indicates

 8 that the Legislature based the deduction’s classification on such features as number

 9 of units or the presence of common areas.

10   {16}   Rather, as Judge Sutin observed in Hawthorne v. Director of Revenue

11 Division Taxation & Revenue Department, the Legislature based the classification

12 on transient use and tenancy. See 1980-NMCA-071, ¶ 17, 94 N.M. 480, 612 P.2d

13 710 (Sutin, J., dissenting). As is the case here, Hawthorne implicated Subsection

14 (B)’s provisions. See id. ¶ 2. Hawthorne concerned the deduction’s application to

15 units within a motel-type complex allegedly used as apartments, though the Court

16 did not rule on that issue. Instead, it concluded that there was insufficient evidence

17 to support a finding that the units were used as apartments, rather than motel

18 rooms. Nonetheless, the Court suggested that receipts from rentals of the units, if

19 used as apartments, would qualify for the deduction. Id. ¶¶ 5-6. Expanding on that

20 notion in his dissent, Judge Sutin remarked: “[c]ommon sense dictates that the

                                             8
 1 [L]egislature made a reasonable classification. It taxed gross receipts from the

 2 transient use of a motel and allowed the deduction of gross receipts from a leased

 3 or rented apartment.” Id. ¶ 17. We agree that a common sense approach suggests

 4 looking to the transient nature of the arrangements to determine whether

 5 Subsection (B)’s exclusion applies.

 6   {17}   Section 7-9-53’s application to manufactured home rentals reinforces that

 7 the Legislature based Subsection (B)’s classification on the distinction between

 8 transient use and tenancy. Specifically, Subsection (B) extends the deduction to

 9 receipts from a manufactured-home lease—but only if the rental is for a month or

10 more. Meanwhile, receipts received by a trailer park from the rental of a space for

11 a manufactured home or recreational vehicle for at least a month may be deducted;

12 the same receipts for any shorter period may not. See § 7-9-53(B). These

13 provisions establish that, in the manufactured home context, the deduction is

14 available for situations closely resembling tenancies, but not for transient stays. In

15 short, while the lease-license distinction might correlate with the deduction, it does

16 not neatly define it. Rather, the Legislature based the Subsection (B) exclusion on

17 transient-use, an attribute typical of and common to the property types listed in that

18 subsection.

19   {18}   Homes, when used as short-term vacation rentals, fit comfortably into the

20 “similar facilities” classification. A person, perhaps planning a vacation, who

                                             9
 1 needs transient lodging—not a place to take up residence—might consider renting

 2 a room in a hotel, a space at a campground, a cabin at a guest ranch, or, as is

 3 increasingly common, another person’s home marketed as a vacation rental.

 4   {19}   Taxpayer’s rental arrangements share other features common to hotels,

 5 motels, rooming houses, campgrounds, guest ranches, and trailer parks when those

 6 properties are operated as transient-use lodging facilities. Like operators of those

 7 facilities typically do, Taxpayer solicited and accepted reservations from the public

 8 for guest stays each lasting a matter of days or weeks. Taxpayer’s online

 9 solicitations included lists of the accommodations’ amenities, and Taxpayer

10 entered into written agreements directly with its renters. The agreements specified

11 check-in and check-out dates and times and included, among other provisions,

12 reservation-deposit, cancellation, non-smoking, guest-limitation, and no-pet

13 provisions. Taxpayer charged rental fees, cleaning fees, and taxes for each of the

14 rentals. During the rental periods, Taxpayer provided a set of keys to renters, kept a

15 set of keys, and addressed property maintenance issues. These commonalities

16 between Taxpayer’s rentals and those of properties in the exclusion category

17 qualify Taxpayers’ vacation rental homes as “similar facilities”—particularly when

18 that term is construed strictly in favor of taxation. See Chavez, 1970-NMCA-116, ¶

19 7.




                                             10
 1   {20}   We reject Taxpayer’s attempts to portray the successive, transient occupancy

 2 arrangements involved here as tenancies, and we agree with the hearing officer

 3 who found several facts undermining the assertion, including: (1) aside from the

 4 smoking, guest-occupancy, pet, and large-gathering provisions, “[t]he rental

 5 agreements were . . . silent on the renters’ dominion or lack thereof over the

 6 property during the rental period”; and (2) “the rental agreements were silent on

 7 Taxpayer’s rights to enter the premise during the rental period, to inspect the

 8 premise, to cancel or terminate the agreement or otherwise take possession of the

 9 property upon notice or eviction.”

10   {21}   We conclude that Taxpayer’s receipts were from lodgers or occupants and

11 were for the use and occupancy of “similar facilities” as that term is used in

12 Section 7-9-53(B). Therefore, the receipts are not “[r]eceipts from the lease of real

13 property” under Section 7-9-53(A). Consequently, they may not be deducted from

14 Taxpayer’s gross receipts.

15 III.     3.2.116.10 NMAC Does Not Exempt Taxpayer From the Gross Receipts
16          Tax

17   {22}   We next consider whether 3.2.116.10 NMAC overrides the plain language of

18 Section 7-9-53 and thus applies to Taxpayer. In so doing, we bear in mind that

19 “taxation is the rule[,] and the claimant for an exemption must show that [the

20 claimant’s] demand is within the letter as well as the spirit of the law.” Sec. Escrow



                                             11
 1 Corp. v. State Taxation & Revenue Dep’t, 1988-NMCA-068, ¶ 10, 107 N.M. 540,

 2 760 P.2d 1306.

 3   {23}   3.2.116.10 NMAC reads as follows:

 4          PERSONS HAVING THREE OR FEWER RENTAL UNITS:
 5          Any person who rents or leases three or fewer rental units of real
 6          property is not regularly engaged in the business of leasing real
 7          property for the purposes of Sections 7-9-28 and 7-9-53 NMSA 1978.
 8          Such a person need not register with the [Department] for gross
 9          receipts tax purposes nor report the receipts if there are no other
10          receipts, but the person may be required to register to report another
11          tax.

12   {24}   Taxpayer’s demand that the exemption be applied is not within the letter of

13 the law. Along with other sections in its part, 3.2.116.10 NMAC is intended to

14 “interpret, exemplify, implement and enforce the provisions of the Gross Receipts

15 and Compensating Tax Act.” 3.2.116.6 NMAC. The regulation uses Section

16 7-9-53’s phrase “leasing real property” to define a category of taxpayer not

17 “regularly engaged in the business of leasing real property.” As discussed, under

18 Section 7-9-53, which the regulation interprets, Taxpayer’s receipts are not

19 “receipts from leasing real property.” Taxpayer, then, is not engaged in the

20 business of leasing real property. Because the regulation pertains only to those

21 engaged in that business, the regulation does not apply to Taxpayer.

22   {25}   Nor is Taxpayer’s demand within the spirit of the law. As discussed, Section

23 7-9-53 reflects the Legislature’s intent to impose the gross receipts tax on

24 transient-use real property rentals, like Taxpayer’s. The regulation, promulgated
                                             12
 1 under the authority given the Department by the Legislature, cannot override that

 2 intent. See 2 Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

 3 Construction § 36:3, at 61 (7th ed. 2009) (articulating as a principle of legislative

 4 enactments hierarchy that an administrative regulation ranks below a statute in

 5 order of precedence). The Department’s interpretation of its own regulation further

 6 undermines Taxpayer’s assertion that the regulation avails. See Rio Grande

 7 Chapter of Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M.

 8 97, 61 P.3d 806 (stating that, in resolving ambiguities in a regulation an

 9 administrative agency is charged with administering, we defer to the agency’s

10 interpretation if it implicates agency expertise). All in all, Taxpayer fails to show

11 that 3.2.116.10 NMAC exempts it from the gross receipts tax and we conclude that

12 it does not.

13 IV.      The Department Correctly Assessed Taxpayer, So the Request for
14          Litigation Costs Is Denied

15   {26}   Having considered Taxpayer’s claim of exemption from the gross receipts

16 tax, we hold that the Department correctly assessed Taxpayer for gross receipts tax

17 on Taxpayer’s receipts for the short-term vacation rental of its homes. The tax’s

18 application to receipts for short-term vacation rentals of homes harmonizes with

19 Section 7-9-53’s statutory scheme of taxing rentals of real property based on

20 transient use. 3.2.110.16 NMAC does not overcome that conclusion.



                                            13
 1   {27}   Because Taxpayer does not prevail on appeal, we deny Taxpayer’s request

 2 for an award of reasonable litigation costs under NMSA 1978, Section 7-1-29.1

 3 (2015).

 4 CONCLUSION

 5   {28}   We affirm.

 6   {29}   IT IS SO ORDERED.


 7                                       _______________________________
 8                                       KRISTINA BOGARDUS, Judge

     WE CONCUR:


 9 _________________________________
10 LINDA M. VANZI, Judge


11 _________________________________
12 JACQUELINE R. MEDINA, Judge




                                           14
