(specially concurring).
I agree with the result reached by the majority opinion but cannot agree with the reasoning.
First, I disagree with that part of the majority opinion under the heading “Taxpayer’s installation receipts are subject to gross receipts tax” for the reason that taxpayer does not argue the taxability of the services. The taxpayer’s argument is that since the taxes have been collected from one whom taxpayer dfeems the appropriate person (Service, Inc.) taxpayer should not have to pay them again. Implicit in taxpayer’s argument is a concession that the services are taxable but not to taxpayer.
Second, I disagree with that part of the majority opinion under the heading “There has been no double taxation” for the reason that it misconceives the issue. I believe that the matter is and should be disposed of on the basis of the statutory scheme.
The taxes presently in question which cover the period for January 1, 1964 to September 30, 1967 were levied under the provisions of three successive but similar laws. Laws 1959, ch. 5; Laws 1963, ch. 325; and Laws 1966, ch. 47. The stated purpose of the three successive tax laws has at all relevant times been to levy a tax on the privilege of doing business in the State of New Mexico. The total receipts of every business subject to the gross receipts tax has at all relevant times been the subject of a statutory presumption of taxability. Those businesses which sell goods and services for resale have been permitted to deduct the receipts of such sales from their gross receipts if they receive a certificate, originally called a resale certificate and presently called a nontaxable transaction certificate, from the purchaser.
In the present case, it is undisputed that taxpayer did not make use of the appropriate type of certificate in its dealings with Service, Inc. There is a stipulation to the effect that subsequent to the audit, which produced the assessments here in question, House of Carpets delivered a nontaxable transaction certificate to Service, Inc. This, however, does the present taxpayer no good. The delivery of such a certificate serves only to permit the recipient of the certificate, in this case Service, Inc., to deduct the value of the product or service sold for resale.
Taxpayer frames the issue presented as one of “double taxation.” I understand taxpayer to mean that since Service, Inc., has paid the gross receipts tax on the price of the installation services that it would be contrary to the legislative intent to permit the Bureau of Revenue to tax those same receipts to taxpayer. Taxpayer’s meaning of the term “double taxation” is different from that meaning given in the Aragon case cited in the majority opinion. Taxpayer’s argument that “double taxation”, as he defines it, is prohibited does not depend on any constitutional prohibition as the majority apparently would have it. Rather, taxpayer argues that this type of double taxation is .prohibited because it..i-s contrary to the legislative intent. It is taxpayer’s contention that it is the legislative intent, as manifested by the provisions permitting the deduction of receipts from sales for resale, that the tax “. . .be assessed but once.” Assuming, without deciding, that taxpayer’s statement of the legislative purpose is correct, taxpayer still cannot prevail. As we said in Reed v. Jones, 81 N.M. 481, 468 P.2d 882 (Ct.App.1970):
“. . . The burden is on the taxpayer to establish clearly his right to the deduction. . . .”
In the present case the Legislature has provided the means for the tax to be assessed but once, namely, by using nontaxable transaction certificates. Not having availed himself of the means for avoiding the tax in question, taxpayer is left with the presumption of taxability.
Lastly, I disagree with that part of the majority opinion under the heading “Acceptable tax is based on equality and uniformity” for the reason that the majority’s discussion misconceives the issue as presented by taxpayer. The reason for this misconception is the differing definitions of “double taxation” used by the majority and by taxpayer. As pointed out in the preceding paragraphs taxpayer’s argument against what he views as "double taxation” is based on legislative intent as expressed in the statutory scheme, while the majority’s discussion relates to a possible constitutional issue not explicitly argued by taxpayer and unnecessary to the decision of the case.
N.M.Const. Art. VIII, § 1 provides in part that: “. . . taxes shall be equal and uniform upon subjects of taxation in the same class.”
Taxpayer contends that the imposition of the tax in this case violates the requirements of the N.M.Const. Art. VIII, § 1. The answer to this contention is that the statutory scheme provides an equal and uniform method of taxation.
Taxpayer could have used nontaxable transaction certificates as provided by statute. He cannot now argue that his own failure to avail himself of the deductions provided by statute render the statutory scheme unequal or imposes burdens which are not uniform. See Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965).
For the foregoing reasons I concur in the result reached by the majority in affirming the decision and order of the Bureau, but I cannot agree with the reasoning used to achieve that result.