Chapter 3.35
RETAIL SALES TAX
Sections:
3.35.060 Nontaxable transaction certificate.
3.35.070 Deductions – Sales tax.
3.35.080 Presumption of taxability.
3.35.090 Separately stating the municipal sales tax.
3.35.100 Unlawful to advertise tax not a part of price.
3.35.110 Administration – Collection.
3.35.130 Enforcement – Penalties.
3.35.010 Authorization.
The village council of the Village of Cimarron, New Mexico, in compliance with the Gross Receipts and Compensating Tax Act, adopts the ordinance codified in this chapter amending Ordinance No. 84. [Ord. 87 § 1, 1967; Ord. 84 § 1, 1966].
3.35.020 Definitions.
As used in this chapter the following words and terms have the following meanings:
“Bureau” means the New Mexico Bureau of Revenue, the Commissioner of Revenue, or any employee of the Bureau exercising authority lawfully delegated to him/her by the commissioner.
“Buying” or “selling” means any transfer of property for consideration or any performance of service for consideration.
“Contracting” means but is not limited to constructing, altering, repairing or demolishing any:
1. Road, highway, bridge, parking area or related project;
2. Building, stadium or other structure;
3. Airport, subway or similar facilities;
4. Park, trail, athletic field, golf course or similar facility;
5. Dam, reservoir, canal, ditch or similar facility;
6. Sewage or water treatment facility, power generating plant, pump station, natural gas compressing station or similar facility;
7. Sewage, water, gas or other pipelines;
8. Transmission lines;
9. Radio or other tower;
10. Water, oil or other storage tanks;
11. Shaft, tunnel or other mining appurtenance;
12. Similar work.
“Contracting” also includes:
13. Leveling or clearing land;
14. Excavating earth;
15. Drilling wells of any type, including seismograph, shot holes or core drilling; or
16. Similar work.
“Engaging in business” means carrying on or causing to be carried on any activity with the purpose of direct or indirect benefit.
“Gross receipts” means the total amount of money or the value of other consideration received from selling property in the municipality, from leasing property employed in the municipality or for performing services in the municipality, and includes any type of time-price differential and receipts from sales of property handled on consignment but excludes cash discounts allowed and taken.
In an exchange in which the money or other consideration received does not represent the value of the property or service exchanged, “gross receipts” means the reasonable value of the property or service exchanged.
When the sale of property or service is made under any type of charge, conditional or time sales contract or the leasing of property is made under a leasing contract, the seller or lessor may elect to treat all receipts under such contracts as gross receipts as and when the payments are actually received. If the seller or lessor transfers his/her interest in any such contract to a third person, he/she shall pay the municipal sales tax upon the full sale or leasing contract amount.
“Gross receipts” for the purposes of the business of buying, selling or promoting the purchase, sale or leasing, as factor, agent, or broker, on a commission or fee basis, or any property, service, stock, bond or security, includes only the total commissions or fees derived from the business.
“Leasing” means any arrangement whereby, for a consideration, property is employed for or by any person other than the owner of the property.
“Manufacturing” means combining or processing components or materials to increase their value for sale in the ordinary course of business but does not include contracting.
“Municipality” means the Village of Cimarron.
“Person” means any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other entity, including the gas, water or electric utility owned or operated by a county, municipality or other political subdivision of the state.
“Property” means real property or tangible personal property. Tangible personal property includes electricity.
“Service” means all activities engaged in for other persons for a consideration, which activities involve primarily the performance of a service as distinguished from selling property. “Service” includes contracting and all materials employed in contracting are to be treated as part of the service. However, sales of materials that will be employed in contracting to persons engaged in contracting are sales of tangible personal property.
“Tax” means the municipal sales tax.
“Use” or “using” means use, consumption or storage other than storage for subsequent sale in the ordinary course of business or for use solely outside of the municipality. [Amended during 2014 codification; Ord. 87 § 2, 1967; Ord. 84 § 2, 1966].
3.35.030 Imposition.
A. There is hereby levied and imposed a municipal sales tax on all retail business and services within the municipality at the rate of one percent on the gross receipts of all retail businesses and services within the municipality. The sales taxes imposed shall be measured by the amount or volume of business done and shall be levied against all persons engaging in retail business or performing services within the municipality.
B. The tax imposed by this section shall be referred to as the municipal sales tax. [Ord. 87 § 3, 1967; Ord. 84 § 3, 1966].
3.35.040 Date payment due.
The municipal sales tax imposed by this chapter is to be paid on or before the twentieth day of the month following the month in which the taxable event occurred. [Ord. 87 § 4, 1967; Ord. 84 § 4, 1966].
3.35.050 Exemptions.
The following transactions are exempted from the municipal sales tax imposed by this chapter:
A. Exempted from the municipal sales tax are the receipts of the United States or any agency or instrumentality thereof or the state of New Mexico or any political subdivision thereof.
Receipts from the sale of gas, water or electricity by a utility owned or operated by a county, municipality or other political subdivision of the state are not exempted from the municipal sales tax by this subsection.
B. Exempted from the municipal sales tax are the receipts of hospitals, infirmaries, or sanitariums and the receipts of nonprofit corporations from the operation of facilities designed and used for providing accommodations for retired elderly persons.
C. Exempted from the municipal sales tax are the receipts of employees from wages, salaries, commissions or from any other form of remuneration for personal services.
D. Exempted from the municipal sales tax are the receipts of growers, producers, trappers or nonprofit marketing associations from selling livestock, live poultry, unprocessed agricultural products, hides or pelts.
Persons engaged in the business of buying and selling wool or mohair are producers for purposes of this subsection.
Persons engaged in the business of buying and selling livestock on their own account are also producers for the purposes of this subsection.
Receipts from selling dairy products at retail are not exempted from the municipal sales tax by this subsection.
E. Exempted from the municipal sales tax are the receipts of any person derived from feeding or pasturing livestock.
Receipts derived from penning or handling livestock prior to the sale shall be considered receipts derived from feeding livestock for the purposes of this subsection.
F. Exempted from the municipal sales tax are the receipts of banks, building and loan associations or credit unions from selling or leasing property or service in the regular course of their banking, building and loan association or credit union functions.
G. Exempted from the municipal sales tax are the receipts from selling vehicles on which the tax imposed by Section 64-11-15 NMSA 1953 is payable.
H. Exempted from the municipal sales tax are the receipts of insurance companies from premiums.
I. Exempted from the municipal sales tax are the receipts received as interest on money loaned or deposited, as dividends from stocks, bonds or securities or from a sale of stocks, bonds or securities.
J. Exempted from the municipal sales tax are the receipts from selling motor fuel or special fuel on which the taxes imposed by Section 64-26-2 or 64-26-8 NMSA 1953 have been paid and not refunded.
K. Exempted from the municipal sales tax are the receipts from the isolated or occasional sale of or leasing of property or service by a person who is neither regularly engaged nor holding himself/herself out as engaged in the business of selling or leasing the same or similar property or services.
L. Exempted from the municipal sales tax are the receipts of public, parochial or private nonprofit schools, colleges or universities received from tuition payments, fees, dormitories or dining facilities.
M. Exempted from the municipal sales tax are the receipts from selling tangible personal property by any instrumentality of the armed forces of the United States engaged in resale activities.
N. Exempted from municipal sales tax are the receipts from the sale of or leasing of oil, natural gas or mineral interests.
O. When a privilege tax is imposed by the Oil and Gas Emergency School Tax Act, the provisions of such act shall apply and determine the full measure of tax liability for the privilege of engaging in the business stated in the Act and no provisions of the municipal sales tax shall apply to or create a tax liability for such privilege in the municipality.
No provision of the municipal sales tax ordinance shall apply to the storage of oil, natural gas or liquid hydrocarbon, individually or in any combination thereof, or to the use of such products for fuel in the operation of a “production unit” as defined by the Oil and Gas Emergency School Tax Act.
P. When a privilege tax is imposed by the Oil and Gas Manufacturers Privilege Tax Act, the provisions of the Act shall apply and determine the full measure of tax liability for the privilege of engaging in the business stated in the Act and no provision of the municipal sales tax ordinance shall apply to or create a tax liability for such privilege.
No provision of the municipal sales tax ordinance shall apply to the storage or use of oil, natural gas, or liquid hydrocarbon, individually or any combination thereof, when stored or used by a “manufacturer” as defined by the Oil and Gas Manufacturer’s Privilege Tax Act.
Q. When a privilege tax is imposed by the Resources Excise Tax Act, the provisions of the Act shall apply and determine the full measure of tax liability for the privilege of engaging in the business stated in the Act and no provision of the municipal sales tax shall apply to or create a tax liability for such privilege, except as is provided in Section 8 of the Resources Excise Tax Act.
R. Exempted from the provisions of the municipal sales tax are the receipts derived from the use of all natural gas, or liquid hydrocarbon or any combination thereof as a fuel in the pipeline transportation of such products.
S. Exempted from the municipal sales tax are the receipts from dues and registration fees of nonprofit social, fraternal, political, trade, business, labor or professional organizations.
No provision of the municipal sales tax ordinance shall apply to or create a tax liability for the privilege of engaging in any business by an insurance company or any agent thereof as provided in Section 58-5-1 NMSA 1953 (being Laws 1925, Chapter 135, Section 27, as amended). If any conflict exists between any provision of the municipal sales tax ordinance and the provisions of Section 58-5-1 NMSA 1953 (being Laws 1925, Chapter 135, Section 27, as amended), Section 58-5-1 NMSA 1953 shall control. [Amended during 2014 codification; Ord. 87 § 5, 1967; Ord. 84 § 5, 1966].
3.35.060 Nontaxable transaction certificate.
A nontaxable transaction certificate executed by the buyer or lessee shall be in the possession of the seller or lessor for a nontaxable transaction when regulations of the New Mexico Bureau of Revenue so require. The nontaxable transaction certificate shall contain information and be in a form prescribed by the New Mexico Bureau of Revenue. Only buyers or lessees who have a registration number or who have applied for a registration number and have not been refused one under Section 72-13-29(c) NMSA 1953 shall execute nontaxable transaction certificates. When the seller or lessor accepts the nontaxable transaction certificate in good faith and the buyer or lessee will employ the property or service transferred in a nontaxable manner, the properly executed nontaxable transaction certificate shall be conclusive evidence that the proceeds from the transaction are not includable in the seller’s or lessor’s gross receipts. [Ord. 87 § 6, 1967; Ord. 84 § 6, 1966].
3.35.070 Deductions – Sales tax.
In computing the municipal sales tax due:
A. Receipts from selling tangible personal property that all become an ingredient or component part of any manufactured product may be deducted from gross receipts if the sale is made to a person engaged in the business of manufacturing who delivers a nontaxable transaction certificate to the seller.
B. Receipts from selling tangible personal property for subsequent sale either by itself or in combination with other tangible personal property in the ordinary course of business may be deducted from gross receipts if the sale is made to a person who delivers a nontaxable transaction certificate to the seller.
Sales of materials that will be employed in contracting to persons engaged in contracting are not sales of tangible personal property for subsequent sale for purposes of this subsection.
C. Receipts from leasing tangible personal property for subsequent leasing in the ordinary course of business may be deducted from gross receipts if the lease is made to a person who delivers a nontaxable transaction certificate to the lessor.
D. Receipts from selling a service for resale may be deducted from gross receipts if:
1. The sale is made to a person who delivers a nontaxable transaction certificate to the seller;
2. The value of the particular service is stated separately in the buyer’s charge for the subsequent sale of the service;
3. The subsequent sale of the service is a transaction taxable under the municipal sales tax; and
4. The subsequent sale is in the ordinary course of business.
Receipts of persons engaged in contracting or performing contracting work are not receipts from selling a service for resale for purposes of this subsection.
E. Fifty percent of the receipts from performing a contracting project may be deducted from gross receipts.
F. Receipts from the sale of or leasing of real property, other than the receipts from the sale of or leasing of oil, natural gas, or mineral interest exempted by VCMC 3.35.050(M) may be deducted from gross receipts.
No receipts received by hotels, motels, rooming houses, camp grounds, guest ranches, trailer parks or similar facilities from lodgers, guests, roomers or occupants shall be considered receipts from leasing real property for the purpose of this subsection.
G. Receipts from selling tangible personal property, other than nonfissionable metalliferous mineral ore to the United States or any agency or instrumentality thereof or the state of New Mexico or any political subdivision thereof may be deducted from gross receipts.
Receipts from selling tangible personal property, other than nonfissionable metalliferous mineral ore, to the governing body of any Indian tribe or Indian pueblo for use on Indian reservations or pueblo grants may be deducted from gross receipts.
H. Receipts from transactions in interstate commerce may be deducted from gross receipts to the extent that the imposition of the municipal sales tax would be unlawful under the United States Constitution.
Receipts from transmitting messages or conversations by telegraph, telephone or radio, other than from one point in this municipality to another point in this municipality, may be deducted from gross receipts. Receipts from transporting persons or property under a single contract from one point to another in this municipality may be deducted from gross receipts when such person or property, including any special or extra service reasonably necessary in connection therewith, is being transported in interstate or foreign commerce.
Receipts from transporting for hire persons or property by railroad, motor vehicle, air transportation or any other means, from one point within the municipality to another point outside the municipality may be deducted from gross receipts.
I. Receipts from selling feed for livestock or poultry, seeds, roots, bulbs, plants, fertilizers, insecticides, fungicides, or weedicides applied to land or water for irrigation purposes may be deducted from gross receipts.
Receipts of auctioneers from selling livestock or other agricultural products at auction may also be deducted from gross receipts.
J. Receipts from warehousing grain or other agricultural products or from threshing or cleaning agricultural products, including the ginning of cotton, may be deducted from gross receipts.
K. Receipts from selling tangible personal property, other than metalliferous mineral ore, to nonprofit schools, colleges, universities, hospitals, religious or charitable organizations, who employ the tangible personal property in the conduct of their regular educational, hospital, religious or charitable functions, may be deducted from gross receipts.
L. Receipts from selling tangible personal property, other than metalliferous mineral ore, to banks, building and loan associations or credit unions who employ the tangible personal property primarily in their banking, building and loan association and credit union functions may be deducted from gross receipts.
M. Fifty percent of the receipts from selling agricultural implements, farm tractors, airplanes or vehicles that are not registered under the Motor Vehicle Code may be deducted from gross receipts.
Any deduction allowed under subsection (N) of this section is to be taken before the deduction allowed by this subsection is computed.
N. That portion of the receipts of a seller that are derived from an allowance granted to a buyer of tangible personal property for a trade-in of tangible personal property at the same type being bought may be deducted from gross receipts.
O. Receipts from publishing newspapers or magazines, except from selling advertising space, may be deducted from gross receipts.
Receipts from selling magazines at retail may not be deducted from gross receipts.
P. Receipts from selling newspapers, except from selling advertising space, may be deducted from gross receipts.
Q. Receipts from selling coal in carload lots may be deducted from gross receipts.
R. Receipts from selling chemicals or reagents to any mining, milling or oil company for use in processing ores or oil in mill, smelter or refinery or in acidizing oil wells and from selling chemicals or reagents in lots in excess of 18 tons may be deducted from gross receipts.
Receipts from selling explosives, blasting powder or dynamite may not be deducted from gross receipts.
S. Receipts of any person from selling merchandise to wholesalers for a manufacturer’s account, but who does not at any time receive title to, handle or invoice the merchandise, may be deducted from gross receipts.
T. Refunds and allowances made to buyers or amounts written off the books as an uncollectible debt by a person reporting municipal sales tax on an accrual basis may be deducted from gross receipts. If debts reported uncollectible are subsequently collected, such receipts shall be included in gross receipts in the month of collection.
U. The amount of gross receipts tax stated separately on the books of the seller or lessor may be deducted from gross receipts but the amount deducted shall not exceed the amount of gross receipts tax due.
V. Receipts of a dealer from furnishing goods or services to the purchaser of tangible personal property to fulfill a warranty obligation of the manufacturer of the property may be deducted from gross receipts.
W. Receipts of a corporation for administrative and accounting services performed by it for a wholly owned subsidiary corporation upon a nonprofit or cost basis, and receipts from a wholly owned subsidiary for the joint use or sharing of office machines and facilities upon a nonprofit or cost basis, may be deducted from gross receipts.
X. Seventy-five percent of the receipts from originating and servicing loans on real property may be deducted from gross receipts.
Y. Receipts from the rental or leasing of vehicles used in the transportation of passengers or property for hire in interstate commerce under the regulations or authorization of any agency of the United States shall be deducted. [Ord. 87 § 7, 1967; Ord. 84 § 7, 1966].
3.35.080 Presumption of taxability.
To prevent evasion of the municipal sales tax and to aid in its administration, it is presumed that all receipts of a person engaging in a retail business or a service are subject to the municipal sales tax. Any person engaged solely in transactions specifically exempt under the provisions of this chapter shall not be required to file a return or register under the provisions of this chapter. [Ord. 87 § 8, 1967; Ord. 84 § 8, 1966].
3.35.090 Separately stating the municipal sales tax.
When the municipal sales tax is stated separately by the seller or lessor to the buyer or lessee and if the total amount of tax that is stated separately on transactions reportable within one reporting period is in excess of the amount of gross receipts tax otherwise payable on the transaction on which the tax was stated separately, the excess amount of tax stated on the transactions within that reporting period shall be included in the gross receipts. [Ord. 87 § 9, 1967; Ord. 84 § 9, 1966].
3.35.100 Unlawful to advertise tax not a part of price.
It is unlawful for any person to advertise that any tax imposed by the municipal sales tax is not an element of the price of the property or service sold. [Ord. 87 § 10, 1967; Ord. 84 § 10, 1966].
3.35.110 Administration – Collection.
A. A certified copy of the ordinance codified in this chapter will be delivered to the Commissioner of the Bureau of Revenue. The commissioner shall cause the municipal sales tax herein imposed to be collected in the same manner and at the same time the gross receipts tax is collected as provided for in the Gross Receipts and Compensating Tax Act.
B. The Bureau of Revenue, as reasonable compensation for the collection and enforcement of this municipal sales tax, may deduct an amount not to exceed three percent of the municipal sales tax collected. The amount deducted shall bear a reasonable relation to the administrative costs, provided the three percent limitation may not be exceeded in any event. The Bureau shall remit to the municipality the municipal sales tax collected less the administrative cost aforementioned; and the remittance shall not be later than the twentieth day of each month following the month in which the tax was collected.
C. The Bureau of Revenue shall interpret this chapter. [Ord. 87 § 11, 1967; Ord. 84 § 11, 1966].
3.35.120 Deposit.
The treasurer of the municipality shall, upon receipt of the remittance from the Bureau of Revenue provided for in VCMC 3.35.110, cause the municipal sales tax to be deposited to the credit of the general fund of the municipality. [Ord. 87 § 12, 1967; Ord. 84 § 12, 1966].
3.35.130 Enforcement – Penalties.
A. The enforcement, collection and administration of this chapter shall be by the Bureau of Revenue and shall be enforced, collected and administered pursuant to the provisions of the Tax Administration Act.
B. The provisions of the Tax Administration Act shall apply to and govern all persons subject to the municipal sales tax imposed by this chapter; provided, however, that the criminal penalties set forth in said Act are restricted to and must not exceed fines of $300.00 or imprisonment not to exceed 90 days or both such fine and imprisonment. The criminal penalties may only be invoked by suit or prosecution before the municipal court of the municipality.
C. A copy of the Tax Administration Act of the state of New Mexico shall be on file with the clerk-administrator of the municipality.
D. Any person who is convicted of violating any provision of this chapter by the municipal court of this municipality shall be punished by a fine not to exceed $300.00 or imprisonment not to exceed 90 days, or both such fine and imprisonment. [Ord. 87 § 13, 1967; Ord. 84 § 13, 1966].