{ "id": 2832993, "name": "S. S. KRESGE COMPANY, a Michigan Corporation, Appellant, v. The BUREAU OF REVENUE of the State of New Mexico, Appellee", "name_abbreviation": "S. S. Kresge Co. v. Bureau of Revenue", "decision_date": "1975-01-29", "docket_number": "No. 1625", "first_page": "259", "last_page": "260", "citations": [ { "type": "official", "cite": "87 N.M. 259" }, { "type": "parallel", "cite": "531 P.2d 1232" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "81 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365414 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0481-01" ] }, { "cite": "84 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0327-01" ] }, { "cite": "80 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361430 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0048-01" ] }, { "cite": "85 N.M. 565", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768245 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0565-01" ] } ], "analysis": { "cardinality": 274, "char_count": 3626, "ocr_confidence": 0.789, "pagerank": { "raw": 6.870541071535647e-08, "percentile": 0.41832516104220746 }, "sha256": "22677c7b62b1109349492730270056a8f693631bd0af80435495cd61a3d7fecd", "simhash": "1:ea06fe3af3af4688", "word_count": 580 }, "last_updated": "2023-07-14T21:55:50.541053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HERNANDEZ, J., concur." ], "parties": [ "S. S. KRESGE COMPANY, a Michigan Corporation, Appellant, v. The BUREAU OF REVENUE of the State of New Mexico, Appellee." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nThis proceeding is a direct appeal from a decision and order of the Commissioner of Revenue denying a protest by the taxpayer (S. S. Kresge Company) against the imposition of gross receipts tax [\u00a7\u00a7 72-16A-1 to 72-16A-19, N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1973)], penalty and interest. We affirm.\nAgreements were entered into between the taxpayer and several other companies which provided for the use of space in the taxpayer\u2019s department stores for the purpose of retailing certain items. The commissioner found that these were license agreements and that the receipts from these arrangements were taxable under \u00a7 72-16A-3(F), supra. The taxpayer contends that the agreements were leases of real property and, therefore, deductible from the gross receipts tax under \u00a7 72-16A-14.8, supra.\nThe decision and order of the commissioner will be set aside by this court only if found to be: \u201c(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with the law.\u201d Section 72-13-39(D), N.M.S.A. 1953 (Repl. Vol. 10, pt. 2, Supp.1973).\n(1) The ruling of the commissioner in no way appears to be arbitrary, capricious, or an abuse of discretion; nor is it attacked as such by the taxpayer.\n(2) \u201c \u2018License\u2019 is not defined in the statutes. Accordingly, \u2018license\u2019 is to be given its ordinary meaning unless a different intent is clearly indicated. * * * \u201d New Mexico Sheriffs and Police Ass\u2019n v. Bureau of Revenue, 85 N.M. 565, 514 P.2d 616 (Ct.App.1973). The ordinary meaning is \u201cpermission to act.\u201d Under this definition, there is substantial evidence to support the commissioner\u2019s finding that the agreements were licenses.\n\u201cThe character of the instrument is not to be determined by its form, but from the intention of the parties as shown by the contents of the instrument.\u201d Transamerica Leasing Corp. v. Bureau of Revenue, 80 N.M. 48, 450 P.2d 934 (Ct.App.1969). In each instrument the following disclaimer appears.\n\u201cThe parties do not intend this Agreement to constitute a joint venture, partnership, or lease and nothing herein shall be construed to create such a relationship.\u201d [Emphasis added]\nNo intention by the parties to the agreements to create anything other than a license is clearly indicated either in the exhibited instrument or in the record. Therefore, the taxpayer has not established the necessary intent to refute the commissioner\u2019s finding. Westland Corporation v. Commissioner of Revenue, 84 N.M. 327, 503 P.2d 151 (Ct.App.1972); Reed v. Jones, 81 N.M. 481, 468 P.2d 882 (Ct.App.1970).\n(3) The Bureau of Revenue is empowered to collect a tax for the privilege of engaging in business in New Mexico. Section 72-16A-4, supra. The tax is paid, among other things on money received from selling property in New Mexico. Section 72-16A-3(F), supra. \u201cProperty\u201d includes licenses. Section 72-16A-3(I), supra. The commissioner\u2019s finding of taxpayer\u2019s liability for gross receipts tax on money received from selling licenses is in accordance with law.\nThere being no further basis for reversing the decision and order of the commissioner, they are hereby affirmed.\nIt is so ordered.\nWOOD, C. J., and HERNANDEZ, J., concur.", "type": "majority", "author": "LOPEZ, Judge." } ], "attorneys": [ "Patrick W. Hurley, Keleher & McLeod, Albuquerque, for appellant.", "Toney Anaya, Atty. Gen., Vernon O. Henning, Daniel H. Friedman, Bureau of Revenue, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "531 P.2d 1232\nS. S. KRESGE COMPANY, a Michigan Corporation, Appellant, v. The BUREAU OF REVENUE of the State of New Mexico, Appellee.\nNo. 1625.\nCourt of Appeals of New Mexico.\nJan. 29, 1975.\nPatrick W. Hurley, Keleher & McLeod, Albuquerque, for appellant.\nToney Anaya, Atty. Gen., Vernon O. Henning, Daniel H. Friedman, Bureau of Revenue, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0259-01", "first_page_order": 285, "last_page_order": 286 }