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M78. Are commissions that real estate brokers collect and pay to their real estate agents who actually sold the property include in gross receipts? If not, may they be deducted from gross receipts as a "Purchase From Another firm"?

Commissions are included in gross receipts. Gross receipts are the "entire amount received" from "any activity" unless the amount received is statutorily exempted under MCL 208.1111. The statute provides no exemption from the definition of gross receipts for real estate commissions collected. Therefore, a real estate broker that receives commissions must include those commissions in its gross receipts even if all, or a portion of the commissions will later be paid out to real estate agents or salespersons affiliated with the broker.

However, the modified gross receipts tax base is a taxpayer's gross receipts less purchases from other firms before apportionment. MCL 208.1203(3). Purchases from other firms include, in part, payments made by brokers licensed under article 25 or 26 of the Occupational Code, 1980 PA 299, to independent contractors also licensed under that Act. MCL 208.1113(6)(g). Therefore, while commissions received are not excluded from a broker's gross receipts, any commissions that are in turn paid out to real estate agents or salespersons that are independent contractors are deducted from gross receipts in calculating the modified gross receipts tax base.

Note however, if the relationship between the broker and the real estate agent or salesperson is one of an employer/employee, any payments made to the licensed employee are not deductible from gross receipts as the definition of purchases from other firms is limited to payments made to "independent contractors."


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