[Adopted 6-26-1961 by Ord. No. 26; amended in its entirety 9-1-1967 by Ord. No. 36]
The governing body of the Town of Bernalillo, hereinafter sometimes
called the "municipality," the "Town," or the "city," finding the
Town of Bernalillo to be an incorporated municipality under the laws
of the State of New Mexico, and finding said Town to be in need of
revenue for governmental purposes, and said Town being desirous of
availing itself of the provisions of law contained in NMSA 1953, §§ 14-39-1
through 14-39-5 (being Laws 1965, Chapter 300, §§ 14-39-1
through 14-39-5, as amended), hereby fixes and imposes a municipal
sales tax pursuant thereto.
[Amended 4-23-1968 by Ord. No. 37]
As used in this article:
BUREAU
The New Mexico Bureau of Revenue, the Commissioner of Revenue,
or any employee of the Bureau exercising authority lawfully delegated
to him by the Commissioner.
BUYING or SELLING
Any transfer of property for consideration or any performance
of service for consideration.
CONTRACTING
A.
Includes, 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 pipeline;
(10)
Water, oil or other storage tanks;
(11)
Shaft, tunnel or other mining appurtenance; or
B.
"Contracting" also includes:
(1)
Leveling or clearing land;
(3)
Drilling wells of any type, including seismograph shot holes
or core drilling; or
ENGAGING IN BUSINESS
Carrying on or causing to be carried on any activity with
the purpose of direct or indirect benefit.
GROSS RECEIPTS
A.
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 from 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.
B.
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.
C.
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 interest in any such contract to a third person, he shall pay
the municipal sales tax upon the full sale or leasing contract amount.
D.
"Gross receipts", for the purpose of the business of buying,
selling or promoting the purchase, sale or leasing, as factor, agent
or broker, on a commission or fee basis, of any property, service,
stock, bond or security, includes only the total commissions or fees
derived from the business.
LEASING
Any arrangement whereby, for a consideration, property is
employed for or by any person other than the owner of the property.
MANUFACTURING
Combining or processing components or materials to increase
their value for sale in the ordinary course of business but does not
include contracting.
PERSON
A.
Any individual, estate, trust, receiver, cooperative association,
club, corporation, company, firm, partnership, joint venture, syndicate
or other entity, including any gas, water or electric utility owned
or operated by a county, municipality or other political subdivision
of the state;
B.
The United States or any agency or instrumentality thereof,
the State of New Mexico or any political subdivision thereof.
PROPERTY
Real property or tangible personal property. Tangible personal
property includes electricity.
SERVICE
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
The municipal sales tax.
USE or USING
Includes use, consumption or storage other than storage for
subsequent sale in the ordinary course of business or for use solely
outside of the municipality.
A. There is hereby levied and imposed a municipal sales tax on all retail
business and services within the municipality at the rate of 1% of
the gross receipts of all retail businesses and services within the
municipality. Gross receipts shall be measured by the amount or volume
of business done.
B. The tax imposed by this section shall be referred to as the "municipal
sales tax."
The municipal sales tax imposed by this article is to be paid
on or before the 20th day of the month following the month in which
the taxable event occurred.
The following transactions are exempted from the municipal sales
tax imposed by this article:
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.
(1) Persons engaged in the business of buying and selling wool or mohair
are producers for purposes of this subsection.
(2) Persons engaged in the business of buying and selling livestock on
their own account are also producers for purposes of this subsection.
(3) 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 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 NMSA 1953, § 64-11-15,
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 NMSA 1953,
§ 64-26-2 or 64-26-8, 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 out as engaged
in the business of selling or leasing the same or similar property
or service.
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
or leasing of oil, natural gas or mineral interests.
O. Imposition of tax.
(1) 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.
(2) 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. Imposition of tax; provisions.
(1) When a privilege tax is imposed by the Oil and Gas Manufacturer's
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.
(2) No provision of the municipal sales tax ordinance shall apply to
the storage or use of oil, natural gas, or liquid hydrocarbon, individually
or in 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.
T. 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 NMSA 1953, § 58-5-1 (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 NMSA 1953, § 58-5-1 (being Laws 1925, Chapter
135, Section 27, as amended) shall control.
A nontaxable transaction certificate 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 NMSA
1953, § 72-13-29(c), shall execute nontaxable transaction
certificates. When the seller or lessor accepts the nontaxable transaction
certificate in good faith that 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.
In computing the municipal sales tax due:
A. Receipts from selling tangible personal property that will 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. Selling a service for resale.
(1) Receipts from selling a service for resale may be deducted from gross
receipts if:
(a)
The sale is made to a person who delivers a nontaxable transaction
certificate to the seller;
(b)
The value of the particular service is stated separately in
the buyer's charge for the subsequent sale of the service;
(c)
The subsequent sale of the service is a transaction taxable
under the municipal sales tax; and
(d)
The subsequent sale is in the ordinary course of business.
(2) Receipts of persons engaged in contracting from 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. Sale or leasing of real property.
(1) 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 §
418-12N of the municipal sales tax, may be deducted from gross receipts.
(2) No receipts received by hotels, motels, rooming houses, campgrounds,
guest ranches, trailer parks or similar facilities from lodgers, guests,
roomers or occupants shall be considered receipts from leasing real
property for purposes of this subsection.
G. Selling tangible personal property.
(1) Receipts from selling tangible personal property, other than non-fissionable
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.
(2) Receipts from selling tangible personal property, other than non-fissionable
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.
(1) 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 persons or property, including any special
or extra service reasonably necessary in connection therewith, is
being transported in interstate or foreign commerce.
(2) 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 or 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 of 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 per cent 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.
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 article shall not be required to register
or file a return under the provisions of this article.
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 as
stated separately on transactions reportable within one reporting
period is in excess of the amount of municipal sales 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.
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.
As reasonable compensation for the enforcement and collection
of this municipal sales tax, the Bureau of Revenue may deduct an amount
not to exceed 3% of the tax actually collected by the Bureau of Revenue.
The Bureau shall remit to the municipality the municipal sales tax
collected less the administrative cost aforementioned not later than
the 20th day of each month following the month in which the tax was
collected, which remittance the treasurer of the municipality is hereby
directed to deposit to the credit of the general fund of the municipality.
Any municipal sales tax imposed by this article shall be enforced
and collected by the Bureau of Revenue pursuant to the provisions
of the New Mexico Tax Administration Act, NMSA 1953, §§ 72-13-13
through 72-13-92, (being Laws 1965, Chapter 248, Section 1 through
84), as it may be amended from time to time. This article shall be enforced and tax collected in the
same manner and at the same time as the state gross receipts tax is
collected.
Upon passage of this article, it shall be the duty of the Clerk
of the municipality to deliver to the Commissioner of the Bureau of
Revenue of the State of New Mexico a certified copy of this article.
The provisions of this article are severable. If any part or
application of any part of this article or the aforementioned New
Mexico Tax Administration Act, as it may be amended from time to time,
is held invalid, the remainder of its application to other situations
or persons shall not be affected.
For the purposes of administration and enforcement of this article,
the Bureau of Revenue shall interpret this article.
The provisions of the aforementioned New Mexico Tax Administration
Act, as amended from time to time, shall apply to and govern all persons
subject to the tax imposed by this article, except that the criminal
penalties set forth in NMSA 1953, §§ 72-13-85 through
72-13-88 (being Laws 1965, Chapter 248, Sections 73 through 75) are restricted to fines not exceeding $300 or to imprisonment
not exceeding 90 days and may only be enforced by suit or prosecution
before a municipal judge of the municipality, and each day and/or
instance of violation of this article shall constitute a separate
offense.
Copies of the New Mexico Tax Administration Act shall be on
file in the office of the Clerk of the municipality.
All ordinances in conflict with the provisions of this article
are hereby repealed; provided, however, that the date of repeal of
such ordinances shall coincide with the first date of allowable collection
under this article and not until such time. It is the legislative
intent of the Board of Trustees, in enacting this article, to amend
and repeal only such portions of the ordinances as are no longer necessary
or desirable, intending to exercise in behalf of the Town all of the
rights and privileges granted by Chapter 300, New Mexico Session Laws
of 1965, for the purpose of obtaining and retaining all of the benefits
of the ordinances heretofore adopted and which are consistent with
said Chapter 300, Laws of 1965, and to amend and establish the ordinances
of the Town pertaining to the municipal sales tax to conform to the
legislative amendments of the years 1965, 1966 and 1967, and to any
other applicable statutes.
The municipal sales tax imposed by this article does not apply
to any taxable event that occurred prior to the effective date. The
payment, collection or enforcement of taxes, the liability for payment
of which was incurred by reason of events occurring prior to the effective
date of this article, is to be accomplished according to the provisions
of the applicable ordinances previously in force in every manner as
though this article had not been passed and adopted.
This article shall be effective on and after September 1, 1967.