Rock v. Commissioner of Revenue
Decision Date | 21 January 1972 |
Docket Number | No. 730,730 |
Citation | 83 N.M. 478,493 P.2d 963,1972 NMCA 12 |
Parties | William F. ROCK, Appellant, v. COMMISSIONER OF REVENUE, Appellee. |
Court | Court of Appeals of New Mexico |
The issue is the liability of a jockey for gross receipts tax on a share of the purse received after riding a winning mount in a horse race in September 1969 and, thus, prior to the enactment of § 72--16A--12.28, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1971). Rock, a licensed jockey, was paid 10% of the purse. He reported the amount but protested any gross receipts tax liability on the amount received. Section 72--13--37, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1971). The Commissioner of Revenue denied the protest; Rock appeals directly to this court. Section 72--13--39, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1971). Rock claims the Commissioner's decision was erroneous because he was an employee. An alternative claim concerning joint venture was abandoned at oral argument.
If Rock were an employee, he would be entitled to the exemption for employees provided by § 72--16A--12.5, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1971).
The facts on which Rock's claim rests were stipulated. The pertinent ones are:
Guild, jockey mount fees are definitely fixed and vary according to the purse and the position in which the jockey finishes, the fees being classified as winning mount, second mount, third mount and losing mount.
'7. By established custom in the State of New Mexico the horse owner pays the jockey on his winning mount 10% of the purse. The amount of tax protested by Exhibit B arose as a result of Taxpayer's receipts from the 10% of the purse paid him after he rode a winning mount or winning mounts.
'8. A horse owner is not required to:
a) withhold income tax from the jockey's share of the purse,
b) pay F.I.C.A. tax, or
c) make unemployment insurance contributions for the jockey.
Rest Tractor Co. v. Bureau of Revenue, 82 N.M. 82, 475 P.2d 779 (Ct.App.1970) states:
* * *'
The type of control essential to an employer-employee relationship has been stated in numerous New Mexico decisions. See Candelaria v. Board of County Commissioners, 77 N.M. 458, 423 P.2d 982 (1967); Roybal v. Bates Lumber Company, 76 N.M. 127, 412 P.2d 555 (1966); Mendoza v. Gallup Southwestern Coal Co., 41 N.M. 161, 66 P.2d 426 (1937), and cases cited in the three decisions. The facts in quoted Paragraphs 8, 9 and 10 are not such that the only reasonable inference is that the jockey is an employee under the above cited cases. Considered in the light most favorable to Rock, more than one inference can be drawn from the stipulated facts. Compare Mittag v. Gulf Refining Company, 64 N.M. 38, 323 P.2d 292 (1958). Therefore, the Commissioner's decision that Rock was not entitled to the employee exemption...
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