OPINION
HERNANDEZ, Judge.Taxpayer owns and operates a motel-type complex in Santa Fe. The Taxation and Revenue Department (Department) assessed the Taxpayer $611.11 for gross receipts tax, penalty, and interest for the reporting period January 1974 to August 1976. This assessment was based on the Department’s determination, following an audit, that the Taxpayer had improperly deducted receipts from eight rental units and amounts paid to a third party for the lease of television sets which the Taxpayer had placed in these rental units. Taxpayer protested the assessment pursuant to § 7-1-24, N.M.S.A.1978, and an administrative hearing was held. The hearing examiner issued a decision and order in which the penalty assessed was abated and the balance of the protest was denied. Taxpayer appeals. The issue is whether there is substantial evidence to support the decision and order.
Section 7-9-53 (A), N.M.S.A.1978, permits a deduction from gross receipts for receipts from the sale or lease of real property, but subsection (B) of that section states that: “Receipts received by hotels, motels, . . . from lodgers, guests, roomers or occupants are not receipts from leasing real property for the purposes of this section”. Taxpayer testified that his complex is divided into two separate units, one consisting of motel units and the other of apartment units, and that he operates the two units as separate businesses. Accordingly, Taxpayer testified, he deducted the receipts from the apartment units from his gross receipts pursuant to § 7-9-53, supra. The Department conducted an audit of Taxpayer’s records and issued the assessment on the basis that the apartment units were motel rooms in fact. The decision and order affirmed the assessment, except for the penalty provision.
Section 7-1-5 (G), N.M.S.A.1978 provides: Any regulation, ruling, instruction or order issued by the [commissioner] is presumed to be in proper implementation of the provisions of the revenue laws administered by the [bureau.]
And Section 7-1-17 (C), N.M.S.A.1978 provides:
Any assessment of taxes made by the [bureau] is presumed to be correct.
The burden is on the taxpayer protesting an assessment by the bureau of revenue to overcome the presumption that the bureau’s assessment is correct. [Archuleta v. O’Cheskey, 84 N.M. 428, 504 P.2d 638 (Ct.App.1972)]. This presumption can be overcome by presenting evidence and showing that the decision of the bureau is not supported by substantial evidence. [Floyd & Berry Davis Co. v. Bureau of Revenue, 88 N.M. 576, 544 P.2d 291 (Ct.App.1975)].
The record reflects that Taxpayer did not overcome this presumption and that there is substantial evidence to support the Decision and Order’s finding that the “apartment” units were operated as motel rooms in fact — or at least to support such an inference. This Court held in Waldroop v. O’Cheskey, 85 N.M. 736, 516 P.2d 1119 (Ct.App.1973) that where more than one inference could be drawn, the commissioner’s determination is conclusive.
Taxpayer’s evidence consisted of his own testimony, bank statements and cancelled checks from a single checking account in which Taxpayer claims the deposits of five separate businesses are deposited, and 15,-000 registration cards for the period in question. Taxpayer might have been able to produce sufficient evidence to support a finding that the “apartment” units qualified for a deduction under § 7-9-53, supra, had he: (1) introduced adequate records [See § 7-1-10 (A), N.M.S.A.1978]; or (2) introduced written agreements suggesting the creation of a landlord-tenant relationship; or (3) called occupants of the “apartment” units to testify that the relationship did, in fact, exist. He did none of these. In fact, he refused to allow the Department to interview any of the occupants of the disputed units. It is our opinion that there is sufficient evidence in the record to support the decision and order of the hearing examiner on this issue.
The second issue involving Taxpayer’s deduction from his gross receipts of the amounts paid to a third party for the lease of television sets which Taxpayer placed in the “apartment” units, is really a sub-issue of the first issue decided above. Section 7-9-50, N.M.S.A.1978, provides: “Receipts from leasing tangible personal property, the receipts from the rental or lease of which are deductible under Subsection C of Section 7-9-53, . . . may be deducted from gross receipts if the lease is made to a lessee who delivers a nontaxable transaction certificate to the lessor. The lessee delivering the nontaxable transaction certificate may not use the tangible personal property in any manner other than for subsequent lease in the ordinary course of business.” [Emphasis added.] Section 7— 9-53 (C), supra, provides: “Receipts attributable to the inclusion of furniture or appliances furnished as part of a leased or rented . . apartment by the landlord or lessor may be deducted from gross receipts.” [Emphasis added.]
The Department claims, and the hearing examiner found, that the occupants of the “apartment” units (which we have determined to be motel units) did not lease the televisions, but merely had a license to use them. We agree. G. R. Regulation 14.5:2 states that leased television sets placed in motel rooms are not leased to the occupants. There is no evidence in the record that the occupants paid any additional fees for the televisions.
Finally, Taxpayer continues to argue on appeal that the audit conducted by the Department is incorrect. We find this argument to be without merit since the record reflects that the Department agreed, during the hearing, to accept Taxpayer’s own figures as the tax base for the “apartment” receipts and the television payments.
We find the other issues raised by Taxpayers to be without merit.
The decision and order of the hearing examiner is affirmed.
IT IS SO ORDERED.
WALTERS, J., concurs. SUTIN, J., dissents.