By Chris Mehrmann and Charlie Kearns

A New Mexico Taxation and Revenue Department administrative hearing officer found that a seller could not use equitable recoupment as a defense to offset gross receipts (sales) tax assessed on its sales of software licenses. In support of its equitable recoupment argument, the seller maintained that third-party lenders that extended loans to the seller’s clients paid gross receipts tax on the seller’s behalf. Rejecting this argument, the hearing officer explained, inter alia, that the software sales and customer loans were separate taxable events— which were each subject to gross receipts tax—and that the lenders paid gross receipts tax on the financing transactions and not the software sales. Therefore, the hearing officer concluded that the seller did not show that the transactions at issue were a single taxable event arising out of the same transaction, which is a requirement for a successful equitable recoupment defense. In re Market Scan Info. Sys., Inc., N.M. Taxation & Revenue Dep’t Admin. Hearings Office, No. 16-44 (Sept. 12, 2016).