(dissenting).
I dissent:
Taxpayer was represented at the hearing by its accountant. A misunderstanding arose out of the accountant’s presentation of the law applicable to the contract between' United States Health Service and taxpayer. The commissioner, unfortunately, was led astray.
Taxpayer was assessed a gross receipts tax, penalty and interest of $6,546.16 for the reporting period of May 1, 1973 through July 31, 1976. The contract in evidence covered the year July 1, 1976 to June 30, 1977. This contract was not applicable. Article II of this contract stated the services that taxpayer would provide. It was limited to emergency ambulance service to the Gallup Indian Medical Center for Indian beneficiaries only when authorized by law enforcement agencies or the Gallup Indian Medical Center. These services covered an area within and outside the boundaries of McKinley County.
Prior to July 1,1976, the contract was not restricted to McKinley County because the Navajo Reservation did not, until 1976, provide any ambulance services. The annual contract that began in the year 1972 covered an area of 150 miles from towns in Arizona to Gallup, New Mexico. The nearest ambulance to Gallup was located at Holbrook, Arizona. Mr. Trujillo, who owned taxpayer, performed services himself for taxpayer until 1974. He testified that 80% of his trips were to and from Fort Defiance, Window Rock, Sanders and Tohatchi, Arizona and Gallup, New Mexico. Thirty percent of the calls came from Arizona police outside New Mexico. The remainder came from Gallup Indian Medical Center. All of these services were in interstate commerce and not subject to taxation. Advance Schools, Inc. v. Bureau of Revenue, 89 N.M. 133, 548 P.2d 95 (Ct.App.1975), Sutin, J., dissenting, rev’d 89 N.M. 79, 547 P.2d 562 (1976). This service continued until the 1976-77 contract was entered into.
All of the information upon which the bureau auditor made its assessment was taken from the Gallup Indian Medical Center (Indian Health Services in Gallup). No showing was made that these receipts were from intrastate calls. This tax was imposed on emergency ambulance service in interstate commerce and was not taxable, and, if taxable, should be limited to 20% of the gross receipts.