DUKE V. BUREAU OF REVENUE, 1975-NMCA-025,
87 N.M. 360, 533 P.2d 593 (Ct. App. 1975)
Edwin L. DUKE, Appellant,
vs.
BUREAU OF REVENUE, Appellee.
COURT OF APPEALS OF NEW MEXICO
1975-NMCA-025, 87 N.M. 360, 533 P.2d 593
John William Pope, Chavez & Cowper,
Belen, for appellant.
Toney Anaya, Atty. Gen., Vernon O.
Henning, Jan E. Unna, Bureau of Revenue Asst. Attys. Gen., Santa Fe., for
appellee.
WOOD, C.J., wrote the opinion. SUTIN and
HERNANDEZ, JJ., concur.
{1} Duke protested his
liability for an assessment of gross receipts tax, penalty and interest. The
protest was denied; Duke appeals claiming that certain receipts were wages
either of himself or wages of his employees, and exempt under § 72-16A-12.5,
N.M.S.A. 1953 (Repl. Vol. 10, pt. 2, Supp.1973).
{2} Duke was involved in the
business of hauling sand, gravel, asphalt and similar materials with his own
trucks. He drove one truck himself and hired drivers for the other trucks.
During the period covered by the assessment, he worked exclusively
{*361} for contractors involved in road
construction. This hauling was on a ton-mile or ton-delivery basis. Duke and
his drivers received wages directly from the contractor.
{3} There is evidence that
the contractor paid the wages, carried workmen's compensation, and withheld for
social security and other deductions. The contractor did the bookkeeping, but
Duke paid for it. The contractor subtracted the wages paid and other deductions
from Duke's gross and paid him the balance.
{4} Duke contends the
evidence shows he was paid wages by the contractor and that he was an employee
of the contractor. The evidence is that the wages paid to Duke came from money
grossed by Duke under the hauling arrangement. Specifically, Duke's wages were
paid from Duke's gross. The tax assessment is on Duke's gross.
Wages Paid to Duke's Drivers
{5} Duke claims the wages
paid to his drivers were not gross receipts because he never received these
wages to distribute. The evidence shows that these wages were paid on Duke's
behalf out of his gross receipts. The definition of gross receipts in §
72-16A-3(F), N.M.S.A. 1953 (Repl. Vol. 10, pt. 2, Supp.1973) includes the total
value of consideration received from performing services. The fact that the
drivers' wages were paid from Duke's gross is evidence that Duke had received
this consideration.
{6} The Commissioner found
that no wages within the meaning of § 72-16A-12.5, supra, were included within
the assessment. There being substantial evidence to support this finding, the
Decision and Order of the Commissioner is affirmed. Sterling Title Co. of Taos
v. Commissioner of Rev.,
85 N.M. 279,
511 P.2d 765 (Ct. App.1973).
SUTIN and HERNANDEZ, JJ., concur.