S. S. Kresge Co. v. Bureau of Revenue

Decision Date29 January 1975
Docket NumberNo. 1625,1625
Citation87 N.M. 259,531 P.2d 1232,1975 NMCA 15
PartiesS. S. KRESGE COMPANY, a Michigan Corporation, Appellant, v. The BUREAU OF REVENUE of the State of New Mexico, Appellee.
CourtCourt of Appeals of New Mexico
OPINION

LOPEZ, Judge.

This 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 (§§ 72--16A--1 to 72--16A--19, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.1973)), penalty and interest. We affirm.

Agreements were entered into between the taxpayer and several other companies which provided for the use of space in the taxpayer's 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 § 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 § 72--16A--14.8, supra.

The decision and order of the commissioner will be set aside by this court only if found to be: '(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.' Section 72--13--39(D), N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1973).

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.

(2) "License' is not defined in the statutes. Accordingly, 'license' is to be given its ordinary meaning unless a different intent is clearly indicated. * * *' New Mexico Sheriffs and Police Ass'n v. Bureau of Revenue, 85 N.M. 565, 514 P.2d 616 (Ct.App.1973). The ordinary menaning is 'permission to act.' Under this definition, there is substantial evidence to support the commissioner's finding that the agreements were licenses.

'The 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.' 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.

'The 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.' (Emphasis added)

No intention by the parties to the agreements to create anything other than a license is clearly indicated either in the exhibited instrument...

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4 cases
  • Cutter Flying Service, Inc. v. Property Tax Dept.
    • United States
    • Court of Appeals of New Mexico
    • 30 d2 Agosto d2 1977
    ...determined by its form but from the intentions of the parties as shown by the contents of the instrument. S. S. Kresge v. Bureau of Revenue, 87 N.M. 259, 531 P.2d 1232 (Ct.App.1976). In Kresge, the Court of Appeals defined license in its ordinary meaning as a permission to act. In this case......
  • 1998 -NMCA- 50, Quantum Corp. v. State Taxation and Revenue Dept.
    • United States
    • Court of Appeals of New Mexico
    • 19 d4 Fevereiro d4 1998
    ...the contents of the instrument." Transamerica Leasing Corp., 80 N.M. at 51-52, 450 P.2d at 937-38; S.S. Kresge Co. v. Bureau of Revenue, 87 N.M. 259, 260, 531 P.2d 1232, 1233 (Ct.App.1975). We review the entire contents of the instrument--the language employed, the subject matter, and when ......
  • Strebeck Properties, Inc. v. New Mexico Bureau of Revenue
    • United States
    • Court of Appeals of New Mexico
    • 20 d2 Março d2 1979
    ...to require interpretation by regulatory illustration to distinguish a lease from a mere license. S.S. Kresge Co. v. Bureau of Revenue, 87 N.M. 259, 531 P.2d 1232 (Ct.App.1975), relied on by the Bureau, defined "license" to mean "permission to act," but the court emphasized that the parties ......
  • State v. Sanchez
    • United States
    • Court of Appeals of New Mexico
    • 29 d3 Janeiro d3 1975

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