Did an automobile dealership become liable as a successor when it bought the predecessor's operating assets through a secured-creditor transaction?

View original ruling (PDF)

Plain-English summary

Hi Country Buick GMC became a successor in business when it acquired the operating assets of Performance Buick Pontiac GMC Isuzu and continued the dealership at the same Farmington location. The predecessor's already-assessed CRS tax, penalty, and interest followed those assets, producing a $282,910.98 liability.

Performance had filed CRS returns reporting gross receipts and withholding liabilities but failed to pay them or comply with a payment plan. Financial defaults and an Ally Financial replevin action then threatened its vehicle inventory and General Motors franchise.

Companies controlled by Hi Country president Jeff Thomas first managed the two Farmington Performance dealerships while regulatory, lender, and franchise approvals were pending. Hi Country later received the assets under the purchase agreement.

The successor assessment gave adequate notice

Hi Country argued that the assessment did not state the nature of the underlying tax. The decision found the notice effective for two reasons.

First, it identified successor-in-business liability and displayed “CRS,” which the cited regulation defined to include gross receipts, compensating, and withholding taxes. Second, Hi Country's original protest letter admitted that it had learned before protesting that the underlying liabilities were gross receipts and withholding tax.

The notice stated $217,957.51 tax, $47,859.15 penalty, and $17,094.32 interest, totaling $282,910.98.

The core business transferred and continued

The asset purchase included new- and used-parts inventory, tools, shop and body-shop equipment, office property, franchise agreements, goodwill, customer lists, intellectual property, and the right to use the Performance name in San Juan County.

Before closing, the Thomas-controlled manager kept the dealership operating, assumed and paid floor-plan credit obligations, and filed and paid Performance's September 2010 CRS liability. After closing, Hi Country continued selling vehicles at the same location, used transferred equipment and inventory, and honored General Motors warranties, with reimbursement from GM.

Although Hi Country replaced most employees, installed new management, and later changed the signs, the decision found the first seven of eight regulatory successor indicators present. The transferred tangible and intangible assets were essential to preserving the franchise and continuing the dealership.

The secured-creditor path did not shield the buyer

Hi Country argued that Bradford Furry had taken control merely to protect collateral and that the secured-creditor exception broke the chain of successor liability.

The decision rejected that theory. It reasoned that tax liability follows the business assets even when a predecessor is dormant or insolvent. An exception that may protect a bank, secured creditor, or disinterested foreclosure buyer during an interim period did not say that the ultimate operating purchaser escaped liability.

Hi Country was not a bank or financial institution, did not purchase at a foreclosure sale, and had been involved in the transaction before the replevin action forced protection of the collateral.

Previously assessed penalty and interest also followed

The predecessor had self-assessed penalty and interest before the assets transferred. At transfer, those amounts were already part of its outstanding tax liability under the Tax Administration Act's definition of “tax.”

Hi Country therefore had to set aside enough purchase funds to cover the entire known liability, and penalty and interest followed the assets with tax principal.

The decision expressly did not decide whether the same analysis would apply if predecessor penalty and interest were first assessed only after the asset transfer.

Result: protest DENIED. Hi Country remained liable for the full $282,910.98 successor CRS assessment.

What this means for you

Buyers of operating businesses

Successor liability can follow tangible and intangible assets, not just a formal entity or stock purchase. Obtain a Department clearance and account for known tax liabilities before closing.

Dealership and franchise buyers

Continuing at the same location with transferred inventory, equipment, goodwill, and franchise rights can outweigh changes in personnel, management, and branding.

Buyers purchasing through a creditor or intermediary

Do not assume that a secured creditor's temporary involvement cleanses the assets of tax liability. This decision distinguished protection for certain intermediaries from the ultimate buyer that continues the business.

Common questions

Q: Why was Hi Country a successor?
A: Seven regulatory indicators were present, including the transfer of core assets and goodwill and continuation of the dealership at the same location.

Q: Was the assessment invalid because it said “CRS”?
A: No. The notice linked CRS with successor liability, and Hi Country also knew before protesting that gross receipts and withholding taxes were involved.

Q: Did replacing employees avoid successor status?
A: No. Most employees changed, but the operating assets essential to the dealership transferred and remained in use.

Q: Were penalty and interest included?
A: Yes, because the predecessor had already assessed them against itself before transfer, making them part of the outstanding liability that followed the assets.

Citations and references

Statutes and regulations:

• NMSA 1978, §§ 7-1-61 through 7-1-63 — successor-in-business liability, trust obligation, and assessment
• NMSA 1978, §§ 7-1-17(B)-(C) and 7-1-3(X) — effective assessment, presumption, and definition of tax
• NMSA 1978, § 7-1-24(B) — extension and protest timing
• Regulation 3.1.10.16 NMAC — successor factors and exclusions
• Regulation 3.1.4.7 NMAC — CRS liability definition

Cases cited:

• Sterling Title Co. v. Commissioner of Revenue, 1973-NMCA-086 — business assets as security for predecessor tax and successor liability
• Albuquerque Bernalillo County Water Utility Authority v. New Mexico Public Regulation Commission, 2010-NMSC-013 — administrative notice and opportunity to respond
• Wing Pawn Shop v. Taxation and Revenue Department, 1991-NMCA-024 — presumption of administrative regularity

Source

• Listing: New Mexico Decisions & Orders
• Decision post: Hi Country Buick GMC, Inc.
• Decision PDF: D&O 14-19

Original ruling text

BEFORE THE HEARING OFFICER
OF THE TAXATION AND REVENUE DEPARTMENT
OF THE STATE OF NEW MEXICO

IN THE MATTER OF THE PROTEST OF
HI COUNTRY BUICK GMC, INC. No. 14-19
TO ASSESSMENTS ISSUED UNDER LETTER
ID NO. L1537828416

DECISION AND ORDER

A protest hearing occurred on the above captioned matter on April 7, 2014 before Brian

VanDenzen, Esq., Hearing Officer, in Santa Fe. Attorney Zachary McCormick appeared

representing Hi Country Buick GMC, Inc. (“Taxpayer”). Mr. Jeff Thomas, Taxpayer’s President,

appeared and testified. Bradford Furry, represented by R. Tracey Sprouls, appeared as a

Taxpayer witness. Staff Attorney Cordelia Friedman appeared representing the State of New

Mexico Taxation and Revenue Department (“Department”). Protest Auditor Andrick Tsabetsaye

and Bureau Chief Kimberly Lowe appeared as a witness for the Department. Taxpayer Exhibits

1, #2, #4-12, and #14 were admitted into the record. Department Exhibits A, C-G, and I were

admitted into the record. All exhibits are more thoroughly described in the Administrative

Exhibit Log. At the request of the hearing officer, the parties submitted legal briefing on April

21, 2014 the date this matter became ripe for a decision. Based on the evidence and arguments

presented, IT IS DECIDED AND ORDERED AS FOLLOWS:

FINDINGS OF FACT

1. On May 20, 2011, the Department assessed Taxpayer as a successor in business

for $217,957.51 in tax, $47,859.15 in penalty, and $17,094.32 in interest for a total assessment of

$282,910.98. [Letter id. no. L1537828416].

2. The assessment included a second page titled “Period Breakdown of Successor in

Business Tax Assessment,” listing the monthly liabilities of tax, penalty, and interest.

3. On May 25, 2011, Taxpayer asked for an extension of time in which to file a

protest of the assessment.

4. On May 27, 2011, the Department granted Taxpayer an extension of time until

August 18, 2011 to file a protest.

5. On August 4, 2011, Taxpayer protested the Department’s assessment.

6. In Taxpayer’s August 4, 2011 protest letter, Taxpayer’s representative

acknowledged consulting with the Department and learning that the successor in business

assessment covered gross receipts tax and withholding tax.

7. On August 15, 2011, the Department acknowledged receipt of Taxpayer’s protest.

8. On November 5, 2012, Taxpayer’s previous representative withdrew from

representing Taxpayer.

9. On July 19, 2013, the Department requested a hearing in this matter.

10. On July 25, 2013, Chief Hearing Officer Monica Ontiveros sent the parties a letter

asking the Department to provide any other assessments the Department may have issued to this

taxpayer or an argument as to why the assessment sufficiently stated the nature of the assessed

tax.

11. On July 29, 2013, the Hearings Bureau issued Notice of Administrative Hearing,

scheduling this matter for December 9, 2013 at 9:00 a.m.

12. On November 25, 2013, Taxpayer moved to continue the hearing until it could

secure new representation. The Department did not oppose the continuance, but made clear that

it would be oppose any future continuances.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 2 of 26

13. On December 2, 2013, the Hearings Bureau issued an order granting Taxpayer’s

request for continuance and setting a new hearing dates of April 7, 2014. The Hearings Bureau’s

ordered cautioned that any future continuances were unlikely.

14. On February 7, 2014, Attorney Zachary L. McCormick entered his appearance on

behalf of Taxpayer in this matter.

15. On March 7, 2014, the parties submitted a stipulated request to continue the

scheduled administrative hearing.

16. On March 10, 2014, the Hearings Bureau denied the stipulated request for a

continuance.

17. On March 21, 2014, Taxpayer filed an amended protest and a supplemental

statement of the grounds for protest.

18. On March 21, 2014, the parties filed their Joint Prehearing Statement.

19. On March 27, 2014, the Department filed a “Response to this Hearings Bureau’s

sua sponte Request for the Department to Specify a Tax Program in Dispute and also to

Taxpayer’s Supplemental Statement of Grounds for Protest.”

20. On April 2, 2014, the Hearings Bureau issued an Order Reserving Ruling on

Effectiveness of Assessment.

21. In accord with the Hearing Officer’s April 2, 2014 order, on April 21, 2014,

Taxpayer and Department submitted supplemental briefing addressing the effectiveness of the

Department’s assessment in this matter. This matter became ripe for a decision on that date.

22. There are numerous corporate entities involved at some level in this protest and

referenced throughout exhibits (sometimes only referenced partially or in a confusing manner).

A brief summary of the corporate entities involved, their pertinent associated presidents and/or

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 3 of 26
principals, and their doing business as relationship is necessary in providing clarity to the record,

the remaining findings of fact, and this decision and order:

a. Taxpayer’s corporation, Hi Country Buick GMC, Inc., for which Mr. Jeff Thomas

is the president.

b. High Desert Automotive, Inc., and its wholly owned subsidiary Basin Motor

Company, d/b/a Performance Buick Pontiac GMC Isuzu1, a car dealership located

near or at 1700 San Juan Blvd. in Farmington, NM.

c. Basin Acquisition Corporation, d/b/a Performance Mazda, Mitsubishi, Isuzu, and

Suzuki, a car dealership located on East Main Street in Farmington, NM.

d. High Desert Automotive of Santa Fe, Inc. ran a Buick GMC car dealership of

unspecified name at the intersection of Camino Carlos Rey and Cerrillos Road in

Santa Fe, NM.

e. Equity Properties, Inc., a corporation for which Mr. Jeff Thomas was president.

f. Radio Properties, Inc., a corporation for which Mr. Jeff Thomas was president.

g. BDF Acquisitions, a corporation for which Mr. Bradford Furry was President.

h. Ally Financial, Inc., which was formerly GMAC, a financial institution closely

associated with General Motors and the car dealership business.

23. Mr. Bradford Furry was involved in the automobile dealership business during the

pertinent time.

24. At some point before April 1, 2008, Mr. Furry possessed 1/3 of the stock of three

auto dealership businesses: High Desert Automotive, Inc., d/b/a Performance Buick Pontiac

1
It is unclear on the record whether the Isuzu franchise was only part of this dealership, only part of the other
Performance dealership, or part both dealerships. However, the parties did not ever address any significant issues
related to Isuzu and this uncertainty has no relevance to the resolution of this protest.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 4 of 26
GMC Isuzu; Basin Acquisition Company d/b/a Performance Mazda Mitsubishi Suzuki; and High

Desert Automotive of Santa Fe, Inc. [Taxpayer Ex. #1-2].

25. On or about April 12, 2008, Mr. Furry sold his 1/3 ownership interest in those

three car dealerships, High Desert Automotive, Inc, Basin Acquisition Corporation, and High

Desert Automotive of Santa Fe, Inc., to his former business partners, John M. and Susan

Steigleman (hereinafter “Steiglemans”). [Taxpayer Ex. #1-2].

26. To complete the sale, the Steiglemans’ made a promissory note to Mr. Furry for

$5,600,000.00, secured in pertinent part by the corporate stock and assets of the three car

dealerships, High Desert Automotive, Inc, Basin Acquisition Corporation, and High Desert

Automotive of Santa Fe, Inc. [Taxpayer Ex. #1-4].

27. On or before September 24, 2009, Mr. Furry alleged numerous defaults under the

promissory note, including failure to remove Mr. Furry as a personal guarantor on lines of credit

from GMAC/Ally Financial, Inc. [Taxpayer Ex. #5].

28. Mr. Jeff Thomas was also involved in the car dealership business during the

pertinent time and was the President of the Hi Country Chevrolet auto dealership in Aztec, NM.

[Taxpayer Ex. #6.43].

29. Hi Country Chevrolet at that time was a competitor with the Performance Buick

Pontiac GMC Isuzu car dealership in Farmington, NM.

30. In 2009, Mr. Jeff Thomas became aware of the Steiglemans’ apparent difficulty in

fulfilling the terms of the promissory note to Mr. Furry.

31. On August 26, 2009, Equity Properties, Inc., a company for which Mr. Thomas

was president, entered into an agreement with Mr. Furry for assignment of the promissory note

that Mr. Furry held from the Steiglemans. [Taxpayer Ex. #6].

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 5 of 26

32. On September 4, 2009, the Steiglemans initiated a suit for declaratory judgment,

temporary restraining order, injunctive relief and damages against Mr. Furry and Mr. Thomas’

Equity Properties, Inc. regarding the potential assignment of the promissory note. Mr. Furry and

Mr. Thomas’ Equity Properties, Inc. counterclaimed. [Taxpayer Ex. #7].

33. Because of various agreements between the parties pending litigation, the sale

and assignment of the promissory note from Mr. Furry to Mr. Thomas’ Equity Properties, Inc.

never closed and did not occur.

34. The Department made Performance Buick Pontiac GMC Isuzu aware that it was

not in compliance with its filings of CRS-1 returns and payments. Without making any payment,

Performance Buick Pontiac GMC Isuzu filed its CRS-1 returns self reporting gross receipts tax

liability, withholding tax liability, and applicable penalty and interest.

35. The Department entered into a payment plan with Performance Buick Pontiac

GMC Isuzu.

36. Performance Buick Pontiac GMC Isuzu did not make the required payments

under the payment plan with the Department.

37. In August of 2010, Ally Financial, Inc., (formerly GMAC), conducted a floor line

of credit audit of inventory at both Performance auto dealerships in Farmington and the High

Desert Automotive of Santa Fe, Inc. auto dealership.

38. A floor line of credit is a phrase used in the automobile business to describe the

financial arrangement whereby Ally provides a line of credit to the dealership for most of the

dealership’s car inventory.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 6 of 26

39. The floor line of credit from an approved lending institution is a requirement to

maintain a franchise agreement with General Motors and other car companies. Without it, the car

companies would pull the franchise agreement.

40. Before he sold his interests to the Steiglemans, Mr. Furry had provided personal

guarantees and collateral to secure the floor line of credit from Ally at both Performance auto

dealerships in Farmington and the High Desert Automotive of Santa Fe, Inc. auto dealership.

41. Shortly after Ally Financial, Inc., initiated its audit, Mr. Furry received a demand

letter from Ally for $16,000,000.00.

42. Under his agreement with the Steiglemans, Mr. Furry was to be removed as a

personal guarantor of the Ally Financial, Inc.’s floor line of credit. Mr. Furry believed that the

Steiglemans’ failure to do so, and the subsequent Ally Financial, Inc.’s demand letter, constituted

a default on the promissory note.

43. Because of the default, Mr. Furry took possession of all the corporate stocks that

served as collateral under the promissory note of the three car dealerships, High Desert

Automotive, Inc, Basin Acquisition Corporation, and High Desert Automotive of Santa Fe, Inc.

By seizing the corporate stocks and collateral under the promissory note, Mr. Furry took over the

operations of those three entities and car dealerships.

44. On September 14, 2010, Ally Financial, Inc., filed an application for a Writ of

Replevin in the United States District Court, District of New Mexico, against Basin Acquisition

Corporation, Basin Motor Company (a wholly owned subsidiary of High Desert Automotive,

Inc) and High Desert Automotive of Santa Fe, Inc. The Honorable M. Christina Armijo of the

United States District Court, District of New Mexico, initially granted Ally a preliminary

injunction and ultimately granted Ally the Writ of Replevin. [Taxpayer Ex.’s # 10-11].

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 7 of 26

45. Under the Writ of Replevin, Ally Financial Inc., could have sold all the vehicles

and other assets of High Country Automotive, Inc., and Basin Acquisition Corporation,

effectively terminating the franchise agreement with General Motors and ending the Buick GMC

franchise presence in Farmington.

46. Mr. Thomas learned of Ally Financial, Inc.’s Writ of Replevin from Mr. Furry.

47. Mr. Thomas apparently had a good financial standing with Ally Financial, Inc.

from their business transactions at Hi Country Chevrolet and worked closely with Ally Financial,

Inc. to delay execution of the Writ of Replevin.

48. Mr. Thomas also worked with Mr. Furry and Ally Financial, Inc. to purchase the

two Performance Farmington auto dealerships respectively owned by High Country Automotive,

Inc., and Basin Acquisition Corporation.

49. On September 10, 2010, High Country Automotive, Inc., and Basin Acquisition

Corporation entered into an Asset Purchase Agreement with Radio Properties, Inc., a company

controlled by its President Mr. Thomas. The agreement allowed Radio Properties, Inc., to assign

the assets to a company of its choice, which it eventually did in the form of Taxpayer.

[Taxpayer Ex. #12].

50. Because the asset purchase agreement was contingent upon the approval of Ally

Financial, Inc., General Motor’s approval of Mr. Thomas as the franchise dealer, and the state’s

approval of Mr. Thomas as the franchise dealership, the asset purchase agreement could not be

closed on immediately.

51. In order to delay execution of the Writ of Replevin while the asset purchase

agreement’s closing was still pending, Ally Financial, Inc., required Mr. Furry and Mr. Thomas

to reach a management agreement whereby Mr. Thomas’ corporation operated the two

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 8 of 26
Farmington Performance dealerships owned respectively by High Country Automotive, Inc., and

Basin Acquisition Corporation.

52. On September 13, 2010, Mr. Furry entered into a management agreement with

Radio Properties, Inc., owned by Jeff Thomas, to manage and operate High Desert Automotive,

Inc. d/b/a/ Performance Buick Pontiac GMC Isuzu and Basin Acquisition Corporation d/b/a/

Performance Mazda Mitsubishi Suzuki Isuzu. [Taxpayer Ex. #14].

53. Around this time in September, the Steiglemans attempted to secure a preliminary

injunction in State District Court against Mr. Furry and Radio Properties, Inc., but were

unsuccessful.

54. On or about September 16, 2010, when the District Court declined to issue and/or

extend the Steiglemans’ requested preliminary injunction, Mr. Furry and Mr. Thomas terminated

all employees of High Desert Automotive, Inc., and Basin Acquisition Corporation.

55. On or about September 17, 2010, Mr. Thomas took over the operation of the two

Farmington Performance auto dealerships owned by High Desert Automotive, Inc., and Basin

Acquisition Corporation pursuant to the management agreement. On this day, the dealerships

were not open for public business.

56. While some former employees of the two Farmington Performance dealerships

were eventually rehired, most of the former employees moved on from the dealerships and Mr.

Thomas hired a new core management team.

57. Within a few days after September 17, 2010, Performance Buick Pontiac GMC

Isuzu managed by Mr. Thomas was reopened to the public for the sale of vehicles.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 9 of 26

58. Taxpayer reported and paid Performance Buick Pontiac GMC Isuzu’s gross

receipts tax for September 2010 reporting period, using Performance Buick Pontiac GMC

Isuzu’s CRS number and name.

59. After October 1, 2010, BDF Acquisitions, Inc., a company owned by Mr. Furry,

took control of the third dealership involved in the Steiglemans’ financial difficulties and default

under the promissory note, High Desert Automotive of Santa Fe. Mr. Furry acknowledged that

BDF Acquisitions, Inc. is paying off High Desert Automotive of Santa Fe’s outstanding state tax

liability as a successor in business.

60. Mr. Thomas was able to secure the approval of Ally, General Motors, and the

state for the transfer of the lines of credit, the various franchise agreements, and the state

dealership license by about February of 2011.

61. As a result of those approvals, the asset purchase agreement between High Desert

Automotive, Inc., Basin Acquisition Corporation, and Mr. Thomas closed sometime in February

2011.

62. Under the asset purchase agreement, High Desert Automotive, Inc. and Basin

Acquisition Corporation agreed to transfer to Taxpayer (as assignee of Mr. Thomas’ Radio

Properties, Inc.) the following assets: inventory of new and used parts, special tools, shop

equipment, body shop equipment, office furniture, telephone systems, computers, non-leased

credit card machines, televisions, franchise agreements, goodwill, customer lists, all intellectual

property, and the right to use the “Performance” name to sell cars in San Juan County.

[Taxpayer Ex. #12.13].

63. Both Performance Buick Pontiac GMC Isuzu as managed by Mr. Thomas and

later as owned and operated by Taxpayer were obligated by General Motors to provide General

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 10 of 26
Motor’s warranty services on cars previously sold by Performance Buick GMC, the cost of

which General Motors reimbursed to the dealership.

64. The assets of Performance Buick Pontiac GMC Isuzu remained at the same

physical location of the dealership when Mr. Thomas first managed that dealership and then

owned that dealership as president of Taxpayer, Hi Country Buick GMC.

65. Without the assets of Performance Buick Pontiac GMC Isuzu that Ally might

have seized under the Writ of Replevin, General Motors likely would have withdrawn the

franchise agreement for the dealership, ending the prospect of Taxpayer’s continuing of business

at that location.

66. Financially, keeping the vehicle assets of Performance Buick Pontiac GMC Isuzu

was critical in Taxpayer maintaining a viable continuing business because the loss of those assets

would result in an unsustainable two-month lag in vehicle inventory.

67. Mr. Thomas assumed and paid Performance Buick Pontiac GMC Isuzu’ s floor

plan line of credit liabilities of Ally Financial, Inc., as part of its asset purchase agreement with

High Desert Automotive, Inc. and Basin Acquisition Corporation so that he could maintain the

vehicle inventory of the dealership.

68. Sometime after the closing of the asset purchase agreement in February 2011,

Taxpayer replaced the Performance signs with the Hi Country signs. Taxpayer continued to sell

vehicles from the same locations as the previous car dealerships.

69. On April 8, 2011, under letter id. no. L1790646848, the Department sent

Taxpayer a request for information to determine whether Taxpayer was a successor in business

to Performance Buick Pontiac GMC Isuzu. [Department Ex. C].

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 11 of 26

70. On May 20, 2011, the Department sent the successor of business assessment to

Taxpayer to the address on record.

DISCUSSION

There are three main issues at protest. The first issue is whether the Department’s

successor in business assessment to Taxpayer was effective. The second issue is whether

Taxpayer is a successor in business to Performance Buick Pontiac GMC Isuzu. And the final

issue is whether a successor in business is liable for the penalty and interest assessed to the

previous business.

Presumption of Correctness and Burden of Proof.

Under NMSA 1978, Section 7-1-17(C) (2007), the assessment issued in this case is

presumed to be correct. Consequently, the Taxpayer has the burden to overcome the assessment.

See Archuleta v. O'Cheskey, 1972-NMCA-165, ¶11, 84 N.M. 428. However, once a taxpayer rebuts

the presumption of correctness, the burden shifts to the Department to show the correctness of the

assessed tax. See MPC Ltd. v. N.M. Taxation & Revenue Dep't, 2003 NMCA 21, ¶13, 133 N.M.

217.

Effectiveness of Assessment

At issue in the protest is whether the Department’s successor in business assessment to

Taxpayer was effective. NMSA 1978, Section 7-1-63 (A) (1997) requires the Department to

assess a successor in business if they do not pay the amount due within 30-days. But Section 7-1-

63 does not define the term “assess” or proscribe the method of issuing an effective assessment.

NMSA 1978, Section 7-1-17 (B) (2) (2007) describes what is an effective assessment under the

Tax Administration Act (“TAA”). By using the term “assess” without providing a more specific

definition of that term for the purposes of Section 7-1-63, it appears that the Legislature intended

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 12 of 26
“assess” to have the same meaning it has under Section 7-1-17 (B) for all other purposes under

the TAA. In pertinent part, in order to be an effective assessment, NMSA 1978, Section 7-1-17

(B) (2) (2007) requires a document “stating the nature and amount of taxes assertedly owed by

the taxpayer…” There is no dispute that the assessment stated the amount of taxes owed. But

Taxpayer argues that the assessment did not state the nature of the tax owed.

Both parties submitted briefs and made arguments at hearing on whether the assessment

properly described the nature of the tax. At hearing, citing Judge Sutin’s concurring opinion in

Sterling Title Co. v. Comm'r of Revenue, 1973-NMCA-086, ¶19, 85 N.M. 279, the Department

argued that successor in business, as the “imposition of a secondary liability”, was the nature of

the tax due and assessed. Additionally, the Department argued that the assessment’s reference of

CRS was sufficient to describe the nature of the tax. Citing Flynn, Welch & Yates, Inc. v. State

Tax Comm'n, 1934-NMSC-001 ¶10, 38 N.M. 131, Taxpayer argued that the nature of tax is not

about whom may be liable for the tax, but on what is being taxed and on what grounds.

Therefore, Taxpayer argued that successor in business assessment in this matter does not

describe the nature of the tax, but rather whom is liable for the tax. Taxpayer further argued that

a CRS is not a statutory tax program but a reporting method, and therefore insufficient to

describe the nature of the tax imposed. While Sterling Title Co. and Flynn, Welch & Yates, Inc.,

are helpful, neither one is controlling or dispositive of the question in this matter of whether the

Department’s assessment adequately described the nature of taxes for purposes of Section 7-1-17

(B) (2).

Without ever expressly objecting, the Department’s filings suggest concern that the

Hearings Bureau sua sponte asked the parties to address this issue. However, jurisdictional

questions are always potentially relevant even if neither party argues the issue. See Alvarez v.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 13 of 26
State Taxation & Revenue Dep't, Motor Vehicle Div., 1999-NMCA-006, ¶6, 126 N.M. 490. In

fact, whether or not a party raises jurisdiction, the Hearings Bureau’s first conclusion of law in

most if not all decisions and orders issued addresses subject matter jurisdiction. Whether a

Notice of Assessment is effective under Section 7-1-17 and a taxpayer’s subsequent protest of

that assessment under NMSA 1978, Section 7-1-24 (2013) are both parts of determining the

Hearings Bureau subject matter jurisdiction over a particular tax protest. See Alvarez, ¶10

(subject matter jurisdiction only vests when the statutorily required administrative steps are

followed); See also Grand Lodge of Ancient & Accepted Masons v. Taxation & Revenue Dep't,

1987-NMCA-081, ¶22, 106 N.M. 179 (statutorily required procedures must be satisfied to confer

jurisdiction). Therefore, the Hearings Bureau properly asked the parties to address the issue to

the extent that the question relates to subject matter jurisdiction. Nevertheless, while subject

matter jurisdiction is always an issue, there is a presumption of administrative regularity that a

taxpayer must overcome when it comes to adequacy of notice. See Wing Pawn Shop v. Taxation

& Revenue Dep't, 1991-NMCA-024, ¶29, 111 N.M. 735.

In this case, the Department issued Taxpayer an assessment with an explanation of

liability listing successor in business, for $217,957.51 in tax, $47,859.15 in penalty, and

$17,094.32 in interest for a total outstanding liability of $282,910.98. The Department’s

assessment also had a CRS number listed on the document, and “CRS” written in large letters in

the lower right corner. Further, the Department attached a second page to the assessment, which

was a spreadsheet of the month-by-month tax liabilities

While Taxpayer argues that the assessment provided an insufficient description of the

nature of the taxes, under the facts of this case, the Department’s assessment did provide a

description of the general nature of the tax and therefore was effective for two reasons. First, the

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 14 of 26
face of the Notice of Assessment indicated that Taxpayer was liable as a successor in business

and clearly listed CRS in two places. Sterling Title Co., ¶19, indicates that a successor in

business is type of secondary tax liability. Regulation 3.1.4.7 NMAC indicates that a CRS

liability means “the total of state gross receipts tax due for a period plus the amounts due for the

same period for all other taxes collected with the state gross receipts tax… compensating tax and

withholding tax.” Given the regulatory definition of CRS as gross receipts, compensating, and

withholding tax, the assessment’s indication of CRS liabilities, and assessment’s statement that

Taxpayer was liable as a successor in business, the Department provided Taxpayer with a

general description of the nature of taxes owed: the previous business’ outstanding gross receipts

tax, compensating tax, and/or withholding tax.

The second reason why the assessment was effective under the facts of this case is

because as a practical matter, Taxpayer was aware of the nature of taxes owed before Taxpayer

filed its protest. According to Taxpayer’s own protest letter, before Taxpayer filed its protest

Taxpayer learned from the Department that the nature of the underlying tax liability in the

assessment was for gross receipts and withholding tax. Taxpayer thus had notice of the nature

and amount of the taxes assertedly due and an opportunity to challenge the assertion of that tax

liability in the form of the protest letter. See Albuquerque Bernalillo County Water Util. Auth. v.

N.M. Pub. Regulation Comm'n, 2010-NMSC-013, ¶28, 148 N.M. 21 (in administrative law, due

process generally means “notice of the opposing party’s claims and a reasonable opportunity to

meet them.”). Therefore, under the facts of this protest, the Department’s assessment of tax was

effective and placed Taxpayer on notice of the nature and the amount of tax liability assertedly

due.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 15 of 26
Taxpayer was a Successor in Business.

Numerous statutes under the TAA address the tax obligations of a successor in business.

NMSA 1978, Section 7-1-61 (B) (1997) establishes that the “tangible and intangible property

used in any business remains subject to liability for payment of the tax due on account of that

business to the extent stated herein, even though the business changes hands.” Section 7-1-61 (C)

requires the successor to place into a trust account sufficient money to cover the outstanding tax

liability until the Department either issues a clearance certificate or makes a demand or

assessment for the outstanding liability. Under Section 7-1-63 (C), the successor can “discharge

as assessment made… by paying to the department the full value of the transferred tangible and

intangible property.”

The purpose of the successor in business statute is “to make tangible and intangible

property security for payment of the tax.” Sterling Title Co., ¶23. In other words, the tax liability

of the predecessor business follows the tangible and intangible assets to the successor business.

According to Judge Sutin’s concurring opinion in Sterling Title Co., ¶28, under the successor in

business statutory scheme, “[t]he burden is placed on the purchaser, at the time of the purchase

of tangible and intangible property used in a business, to determine whether a gross receipts tax

is due and payable by the seller.”

Regulation 3.1.10.16 NMAC (1/15/01) addresses what constitutes a successor in

business for the purposes of the TAA. See Chevron U.S.A., Inc. v. State ex rel. Dep't of Taxation &

Revenue, 2006-NMCA-50, ¶16, 139 N.M. 498, 503 (agency regulations interpreting a statute are

presumed proper and are to be given substantial weight). Regulation 3.1.10.16 (A) NMAC

establishes eight indicia in determining whether a business is a successor:

(1) Has a sale and purchase of a major part of the materials, supplies,
equipment, merchandise or other inventory of a business enterprise

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 16 of 26
occurred between a transferor and a transferee in a single or limited
number of transactions?
(2) Was a transfer not in the ordinary course of the transferor's business?
(3) Was a substantial part of both equipment and inventories transferred?
(4) Was a substantial portion of the business enterprise that had been
conducted by the transferor continued by the transferee?
(5) By express or implied agreement did the transferor's goodwill follow
the transfer of the business properties?
(6) Were uncompleted sales, service or lease contracts of the transferor
honored by the transferee?
(7) Was unpaid indebtedness to suppliers, utility companies, service
contractors, landlords or employees of the transferor paid by the
transferee?
(8) Was there an agreement precluding the transferor from engaging in a
competing business to that which was transferred?

If any of these eight indicia are present, then the Department “may presume that ownership of a

business enterprise has transferred to a successor in business.” See Regulation 3.1.10.16 (B)

NMAC.

Despite the financial and legal saga that ultimately led to Taxpayer’s acquisition of

Performance Buick Pontiac GMC Isuzu’s tangible and intangible property, there is little doubt

that Taxpayer was a successor in business under Section 7-1-67 and Regulation 3.1.10.16 (A)

NMAC. While the Department may presume that the new owner is a successor if any single

factor is established, in this case the first seven of the eight factors articulated under Regulation

3.1.10.16 (A) NMAC support that Taxpayer was a successor in business to High Desert

Automotive, Inc. d/b/a/ Performance Buick Pontiac GMC Isuzu. Of particular weight in reaching

that conclusion are the list of transferred assets in asset purchase agreement and the testimony of

Mr. Thomas about the importance of maintaining Performance Buick Pontiac GMC Isuzu’s

inventory in the face of Ally’s Writ of Replevin. Under the asset purchase agreement, Taxpayer

obtained the major part of equipment, merchandise, and other inventory of Performance Buick

Pontiac GMC Isuzu from High Desert Automotive, Inc. and Basin Acquisition Company. Under

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 17 of 26
the Asset Management Agreement, Performance Buick Pontiac GMC Isuzu’s goodwill was

transferred to Taxpayer, along with the right to use the Performance name for the sale of

automobiles in San Juan County. As evidenced by the litigation between the Steiglemans, Mr.

Furry, Mr. Thomas, and their respective corporate entities, the transfer of the business was most

certainly not in the ordinary course of High Desert Automotive, Inc., Basin Acquisition

Company, or Taxpayer’s business.

The vehicle inventory, the parts inventory, and the intellectual property of Performance

Buick Pontiac GMC Isuzu were transferred to Taxpayer. In fact, Mr. Thomas’ testimony

established that without protecting the vehicle inventory and other assets of Performance Buick

Pontiac GMC Isuzu, there would likely be no dealership business left to acquire. In other words,

the assets of Performance Buick Pontiac GMC Isuzu business were critical to Taxpayer’s

continuing business.

To maintain the integral assets of Performance Buick Pontiac GMC Isuzu in the interim

period between signing the asset purchase agreement and closing on that agreement, Taxpayer in

fact managed Performance Buick Pontiac GMC Isuzu. During this time, Taxpayer assumed and

paid Performance Buick Pontiac GMC Isuzu’s floor line credit obligations with Ally Financial,

Inc. Taxpayer also filed and paid Performance Buick Pontiac GMC Isuzu’s September 2010 New

Mexico CRS tax obligations during this interim period.

After the asset purchase agreement finally closed in this matter, Taxpayer continued to

operate a Buick GMC franchise automobile dealership at the same physical location in

Farmington, selling some of the transferred inventory (including parts even if as Mr. Thomas

speculated that most of the cars had already sold during Taxpayer’s interim management period),

and using the same maintenance equipment as Performance Buick Pontiac GMC Isuzu. Under its

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 18 of 26
franchise agreement with General Motors, Taxpayer was obligated to honor the vehicle

warranties of vehicles previously sold by Performance Buick Pontiac GMC Isuzu (or any other

General Motors authorized dealer), although General Motors reimbursed Taxpayer for these

expenses. While of course Taxpayer made changes to the business, including replacing most of

the work force and changing the management team, the tangible and intangible property of the

previous business initially remained at the core of Taxpayer’s business. Indeed, without

protecting and transferring those assets, Mr. Thomas’ testimony established that Taxpayer would

not likely have been able to maintain its franchise agreement or continue to operate a successful

automobile dealership business. Because Regulation 3.1.10.16 (A) NMAC factors 1-7 were met,

the Department rightfully concluded that Taxpayer was a successor in business to Performance

Buick Pontiac GMC Isuzu.

Nevertheless, Taxpayer argued that it was not a successor in business under Regulation

3.1.10.16 (F) (2) NMAC. Under Regulation 3.1.10.16 (F) (2) NMAC, a successor means “any

transfer of a business or property of a business, except to the extent it would be materially

inconsistent with the rights of secured creditors that have perfected security interests or perfected

liens on the business or property of the business.” Excluded from the definition of a successor in

business under Regulation 3.1.10.16 (F) (2) NMAC is “a disinterested third party who purchases

property at a commercially reasonable foreclosure sale, a bank or other financial institution or

government that acquires and operates a business for a limited period of time in order to protect

its collateral for eventual resale in a commercially reasonable manner…” Taxpayer argues that

since Mr. Furry only operated the business for a limited period to protect his collateral under the

promissory note, Mr. Furry could not have been a successor in business under Regulation

3.1.10.16 (F) (2) NMAC, and Taxpayer could not be found liable as successor by acquiring the

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 19 of 26
property from Mr. Furry because Mr. Furry was not liable for the tax. This argument does not

persuade legally or factually.

In Sterling Title Co., the taxpayer argued that the predecessor business was no longer

engaged in business at the time of the transfer of the assets, shielding the taxpayer from the

outstanding tax liability. That is a similar argument to the one Taxpayer makes here: since Mr.

Furry was not liable for successor taxes under Regulation 3.1.10.16 (F) (2) NMAC because he

was simply protecting his collateral, Taxpayer could not inherit any tax liability from

Performance Buick Pontiac GMC Isuzu when it acquired the assets from Mr. Furry. However,

under Sterling Title Co., ¶23, the liability follows the tangible and intangible property of a

business. Sterling Title Co., ¶29, in rejecting the taxpayer’s claim that it was not liable for

successor tax liability, found the successor business liable when it acquired all “operating assets

of [the predecessor business] and continued to operate that business, even though [the

predecessor business’ was dormant or insolvent…”

Likewise, under the rationale articulated by Sterling Title Co., ¶23-29, although

Performance Buick Pontiac GMC Isuzu may have been insolvent when Mr. Furry acted to

protect his security interest, Taxpayer was liable as a successor when it acquired all of

Performance’s assets from Mr. Furry and continued to operate the business in a substantially

similar manner at the same physical location because the tax liability follows the tangible and

intangible property of a business. While Regulation 3.1.10.16 (F) (2) NMAC may carve out an

intermediary exception from successor liability for banks, financial institutions, and secured

creditors protecting their collateral, there is no indication under that regulation that the end

purchaser of the tangible and intangible property obtained in a commercially reasonable manner

from the secured creditor escapes liability under Regulation 3.1.10.16 (F) (2) NMAC. As

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 20 of 26
Sterling Title Co., ¶23-29, makes clear, the structuring of the transaction is not generally a way to

avoid successor tax liability because the tax liability follows the assets.

Factually, this is not a case of bank or a financial institution operating the business for a

limited time until it can make a disinterested sale to a third party in commercially reasonable

manner. Before Mr. Furry even seized the collateral under the promissory note he had with the

Steiglemans, he had attempted to sell the promissory note directly to Mr. Thomas. Taxpayer did

not acquire Performance Buick GMC, Inc. during a foreclosure sale. Taxpayer was not a bank or

financial institution with a security interest it was trying to protect in this matter. Taxpayer was

involved early in the process before even Ally Financial, Inc.’s Writ of Replevin forced Mr.

Furry to protect his secured credit interests.

Taxpayer’s argument also depends on the proposition that Mr. Furry was not subject to

successor liability under Regulation 3.1.10.16 (F) (2) NMAC because his intervention was

limited to protecting his collateral as a secured creditor. However, the evidence actually

undercuts the assumption built into Taxpayer’s argument. It is true that Mr. Furry, whom had

security interest under the promissory note, may have been in a better position than Taxpayer to

claim the protection of Regulation 3.1.10.16 (F) (2) NMAC2. Yet, as Mr. Furry addressed in

testimony, as a successor in business his company BDF Acquisitions is paying off the tax

liability of the Santa Fe dealership it acquired. BDF Acquisitions acquired the Santa Fe

dealership after the Steiglemans default on the promissory note and Ally Financial, Inc.’s Writ of

Replevin action, the same financial and legal circumstances that allowed Taxpayer to acquire

Performance Buick Pontiac GMC Isuzu. If Mr. Furry, who had a security interest under the

promissory note he sought to protect by taking possession of the three auto dealerships, did not

2
However, Mr. Furry also was not the bank, the financial institution, or the disinterested third party that Regulation
3.1.10.16 (F) (2) NMAC appears to be contemplating.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 21 of 26
claim that Regulation 3.1.10.16 (F) (2) NMAC excluded his business from the definition of a

successor in business, then Taxpayer has even less grounds to do so. Regulation 3.1.10.16 (F) (2)

NMAC does not exclude Taxpayer from the definition of a successor in business.

Interest and Penalty for a Successor in Business.

Taxpayer argued that the imposition of penalty and interest is not authorized by statute for a

successor in business. Taxpayer’s argument is premised on a close reading of NMSA 1978, Section

7-1-61 (A) (1997). For the purposes of the successor in business provisions of the TAA, Section 7-

1-61 (A) defines “tax” to mean “the amount of tax due imposed by provisions of the taxes or the tax

acts set forth in Subsection A and B of Section 7-1-2 NMSA 1978…” Further, NMSA 1978,

Section 7-1-3 (X) (2013) defines tax to include penalty and interest “unless the context otherwise

requires.” The Department counters that Section 7-1-3 (X) defines tax to include penalty and

interest for all purposes under the TAA. However, because NMSA 1978, Section 7-1-2 (A-B)

(2007) does not list the applicable penalty or interest statutes or reference Section 7-1-3 (X)’s tax

definition, Taxpayer argues that penalty and interest cannot be included in successor in business’s

tax liability under Section 7-1-61 (A)’s definition of tax.

Taxpayer’s argument is novel and does not appear to ever have been directly considered by

the Hearings Bureau or the Court of Appeals. While Taxpayer’s statutory interpretation argument

has some appeal, Taxpayer’s argument also requires reading Section 7-1-61 (A) in isolation from

the remaining subsections of Section 7-1-61 (B & C), which is a disfavored approach of statutory

construction. See Regents of the Univ. of New Mexico v. New Mexico Fed'n of Teachers, 1998-

NMSC-20, ¶28, 125 N.M. 401 (statutes are to be interpreted in a manner to give the entire statute

effect and not render portions of the statute superfluous).

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 22 of 26
Section 7-1-61(B) (emphasis added) states that

[t]he tangible and intangible property used in any business remains subject to
liability for payment of the tax due on account of that business to the extent
stated herein, even though the business changes hands.

Further, Section 7-1-61(C) (emphasis added) states that

If any person liable for any amount of tax from operating a business transfers
that business to a successor the successor shall place in a trust account
sufficient money from the purchase price or other source to cover such
amount of tax until the secretary or secretary's delegate issues a certificate
stating that no amount is due, or the successor shall pay over the amount due
to the department upon proper demand for, or assessment of, that amount
due by the secretary.

Both subsections (B) & (C) emphasize the tax due of the previous company, which would include

any assessed penalty and interest under the definition of Section 7-1-3 (X).

Judge Sutin’s concurring opinion in Sterling Title Co., ¶22 (emphasis added), explained

how Section 7-1-61’s similar predecessor statute worked:

If a tax was assessed against [Company A] during the time [Company A]
was engaged in business, its tangible and intangible property used in the
business thereafter remained subject to liability for payment of the tax
even though the tangible and intangible property used in the business
changed hands by sale to [Company B].

In other words, the assessed tax liability due of the predecessor-owner follows the tangible and

intangible property transferred to the successor in business. Judge Sutin emphasized that the

primary purpose of the successor in business statue “was to make tangible and intangible

property security for payment of the tax.” Sterling Title Co., ¶23. The critical moment for the

purchaser-successor, who carries the burden, is “at the time of the purchase of the tangible and

intangible property...” Sterling Title Co., ¶28.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 23 of 26
To read all three subsections of Section 7-1-61 in harmony, and in a manner consistent

with Judge Sutin’s concurring opinion in Sterling Title Co., one must look to what tax liability

was assessed and due to the predecessor business at the time of the transfer of the assets to the

successor in business. If the predecessor business was assessed penalty and interest before the

transfer, then the predecessor business’ total outstanding assessed tax liability due included

penalty and interest at the time of the transfer because under Section 7-1-3 (X), tax includes

penalty and interest. In that situation, the transferred tangible and intangible property of the

business continued to remain subject to that total outstanding tax liability due.

This is also consistent with the requirement of Section 7-1-61 (C) that the successor

business set aside sufficient funds from the purchase to cover the tax liability. If the

predecessor’s business assessment included penalty and interest, then the successor business

knew or should have known how much money needed to be set aside to cover the tax liability

due as required under Section 7-1-61 (C). With knowledge of the predecessor’s total tax liability,

which included penalty and interest, the successor has no basis to escape the liability. See

Sterling Title Co., ¶21.

Taxpayer’s novel statutory argument may be more persuasive in a situation where penalty

and interest stemming from the predecessor business is assessed against the successor after the

transfer of the tangible and intangible property to the successor has already occurred. But it is not

necessary to reach any definitive conclusions on that point because under the facts of this case,

Performance Buick Pontiac GMC Isuzu, as a result of its earlier self-assessment, had been

assessed penalty and interest before the transfer of the tangible and intangible property to

Taxpayer. Therefore, Taxpayer knew or should have known that Performance Buick Pontiac

GMC Isuzu’s outstanding tax liability due included the previously assessed penalty and interest,

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 24 of 26
which under Section 7-1-3 (X) was included in the definition of tax. Taxpayer was compelled

under Section 7-1-61 (C) to aside sufficient funds to cover that total outstanding tax liability due.

Since the total tax liability due as of the time of transfer follows the tangible and intangible

property, Taxpayer remains liable for Performance Buick Pontiac GMC Isuzu’s total assessed

tax liability due, which included penalty and interest. Taxpayer’s protest is denied.

CONCLUSIONS OF LAW

A. The Department issued an effective successor in business assessment under Section

7-1-17 (B) (2) that described the nature of the tax owed as CRS taxes, which under Regulation

3.1.4.7 NMAC means gross receipts tax, withholding tax, and compensating tax. Taxpayer

further had adequate notice that the successor in business liability was for gross receipts tax and

withholding tax before the filing of its protest, and therefore had sufficient opportunity to

challenge the Department’s assessment. See Albuquerque Bernalillo County Water Util. Auth.,

2010-NMSC-013, ¶28, 148 N.M. 21.

B. After properly requesting and receiving an extension of time in which to file a

protest under NMSA 1978, Section 7-1-24 (B) (2003), Taxpayer filed a timely, written protest to the

assessment. Jurisdiction lies over the parties and the subject matter of this protest.

C. Because the first seven of the eight factors articulated under Regulation 3.1.10.16

(A) NMAC were present, and because the transferred tangible and intangible property of

Performance Buick Pontiac GMC Isuzu was critical to Taxpayer’s continued operation of a

Buick GMC franchise and dealership at the same location in Farmington, Taxpayer was a

successor in business under Sections 7-1-61 through 63.

D. Taxpayer was not excluded from the definition of successor in business under

Regulation 3.1.10.16 (C) (2) NMAC.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 25 of 26
E. Because Performance Buick Pontiac GMC Isuzu’s outstanding tax liability due at

the time of the transfer of the tangible and intangible property included assessed penalty and

interest, that total tax liability followed the transferred assets to Taxpayer and Taxpayer remains

liable for the payment of that entire outstanding tax obligation. See Sterling Title Co., ¶22-28.

For the foregoing reasons, Taxpayer's protest IS DENIED. Taxpayer owes the successor in

business assessed CRS taxes liability.

DATED: June 2, 2014.

Brian VanDenzen, Esq.
Tax Hearing Officer
Taxation & Revenue Department
Post Office Box 630
Santa Fe, NM 87504-0630

NOTICE OF RIGHT TO APPEAL

Pursuant to NMSA 1978, Section 7-1-25 (1989), the parties have the right to appeal this

decision by filing a notice of appeal with the New Mexico Court of Appeals within 30 days of

the date shown above. See Rule 12-601 NMRA. If an appeal is not filed within 30 days, this

Decision and Order will become final. Either party filing an appeal shall file a courtesy copy of

the appeal with the Hearing Bureau contemporaneous with the Court of Appeals filing so that the

Hearing Bureau can begin to prepare the record proper.

In the Matter of the Protest of Hi Country Buick GMC, Inc., page 26 of 26