Could Marc Gelinas deduct his commissions from sales of implantable prosthetic devices even though he did not possess buyer NTTCs?

Plain-English summary

Marc Gelinas could deduct the commissions he earned from sales of implantable prosthetic devices, even though he did not possess buyer NTTCs. The AHO ordered the Department to abate all assessed gross receipts tax, penalty, and interest.

Gelinas sold prosthetic devices for knees, hips, and shoulders as an independent contractor. His only compensation was commissions reported on Forms 1099-MISC by distributors.

The Department initially assessed $4,378.81 gross receipts tax, $875.76 penalty, and $907.17 interest for 2010. At the hearing, interest had changed to $518.48, leaving $5,773.05 in total asserted liability.

Gelinas arranged sales but did not own or sell the devices

After a sale, Gelinas prepared order forms for the buyer, manufacturer, and distributor.

The buyer, usually a hospital, paid the manufacturer directly. The manufacturer paid part of the proceeds to the distributor, and the distributor paid Gelinas a commission.

Ownership passed from the manufacturer to the buyer. There was no evidence that Gelinas ever owned the devices or transferred property for consideration.

The AHO therefore treated him as an agent of the seller, not the statutory “seller” required to hold an NTTC under the prosthetic-device deduction.

The underlying prosthetic sales were deductible

Section 7-9-73 allowed a deduction for qualifying sales of prosthetic devices. The Department did not dispute that the devices and sales at issue fell within that statute.

The parties had focused on Gelinas's lack of buyer NTTCs. But because he was not the seller, Section 7-9-73 did not directly govern his commission receipts.

A separate statute covered his commissions

Section 7-9-66(A) allowed a deduction for commissions from sales of tangible personal property that were not subject to gross receipts tax.

Regulation 3.2.1.18 HH(6) specifically said that when the underlying tangible-property sale is exempt or deductible, an independent contractor's commission from selling another person's property may qualify for the Section 7-9-66 deduction.

Gelinas met that rule: he was an independent contractor, his income was commissions, he sold property belonging to another, and the underlying prosthetic-device sales were deductible.

Unlike Section 7-9-73, Section 7-9-66 did not require the commission agent to possess an NTTC or require the seller actually to claim the underlying deduction. It required the underlying transaction to be deductible.

The old assessment was still timely

Gelinas also objected to the Department waiting until 2017 to assess receipts from 2010.

Because he had filed no gross receipts returns for those periods, Section 7-1-18(C) allowed assessment within seven years after the end of the calendar year in which the tax was due. The March 17, 2017 assessment fell within that period.

The possible protest-timeliness issue was waived because the Department did not raise it, and the file contained a notation that the protest had been attached in the Department's GenTax system on June 5, 2017, within the deadline.

Result: protest GRANTED. The Department was ordered to abate the assessed tax, penalty, and interest.

What this means for you

Independent commission salespeople

Identify who owns and transfers the product. A representative who arranges sales of another person's property may be analyzed under the commission deduction rather than as the seller in the underlying transaction.

Medical-device manufacturers and distributors

Document the payment and ownership chain. Here, hospital payment to the manufacturer, manufacturer payment to the distributor, and distributor payment of a 1099 commission helped establish Gelinas's role.

Businesses evaluating NTTC requirements

Match the certificate requirement to the deduction actually being claimed. The underlying seller's prosthetic-device deduction and the independent agent's commission deduction were separate provisions with different requirements.

Nonfilers facing historical assessments

Not filing a required return can extend the assessment period. The seven-year rule made this 2017 assessment of 2010 periods timely even though Gelinas ultimately won on the deduction.

Common questions

Q: What did Gelinas sell?
A: Implantable medical devices, including prosthetics for knees, hips, and shoulders.

Q: Who paid him?
A: Distributors paid his commissions from their portion of the manufacturers' sale proceeds, and reported the payments on Forms 1099-MISC.

Q: Why was Gelinas not treated as the seller?
A: He never owned the devices or transferred them for consideration. Ownership passed from the manufacturer to the buyer.

Q: Did he possess NTTCs from the buyers?
A: No. The AHO held that Section 7-9-66 did not require him to obtain or possess them for his commission deduction.

Q: Was the Department too late to assess 2010?
A: No. Because Gelinas filed no gross receipts returns for 2010, the March 2017 assessment was within the seven-year period.

Q: What amount remained asserted at the hearing?
A: $4,378.81 tax, $875.76 penalty, and $518.48 interest, totaling $5,773.05.

Q: What was the final result?
A: Full abatement of the assessed tax, penalty, and interest.

Citations and references

Statutes and regulations:

• NMSA 1978, §§ 7-9-3, 7-9-3.5, and 7-9-4 — selling, gross receipts, and gross receipts tax
• NMSA 1978, § 7-9-66(A) — commission deduction
• NMSA 1978, § 7-9-73 — prosthetic-device sales deduction
• NMSA 1978, § 7-1-18(C) — seven-year assessment period for an unfiled return
• NMSA 1978, §§ 7-1-3(X), 7-1-17(C), and 7-1-24 — tax definition, assessment presumption, and protest procedure
• Regulations 3.1.6.13, 3.2.1.18 HH(6), and 3.2.225.9(C) NMAC — assessment presumption and commission rules
• FYI-105, Gross Receipts & Compensating Taxes: An Overview (Rev. 7/2017), p. 17 — Department publication cited by the AHO

Cases cited:

• Kmart Properties, Inc. v. Taxation & Revenue Department, 2006-NMCA-026 — tardiness of public officers did not defeat tax enforcement within the limitations period
• Public Service Co. v. New Mexico Taxation & Revenue Department, 2007-NMCA-050 — taxpayer's burden to prove a deduction
• Security Escrow Corp. v. State Taxation & Revenue Department, 1988-NMCA-068 — deductions are strictly construed and must be clearly established

Source

• Listing: New Mexico Decisions & Orders
• Decision post: Marc A. Gelinas
• Decision PDF: D&O 18-02

Original ruling text

STATE OF NEW MEXICO
ADMINISTRATIVE HEARINGS OFFICE
TAX ADMINISTRATION ACT

IN THE MATTER OF THE PROTEST OF
MARC A. GELINAS
TO ASSESSMENT
ISSUED UNDER LETTER
ID NO. L1020757296

v. D&O No. 18-02

NEW MEXICO TAXATION AND REVENUE DEPARTMENT

DECISION AND ORDER

A protest hearing occurred in the above captioned matter on November 9, 2017 at 9:00

a.m. before Chris Romero, Esq., Hearing Officer, in Santa Fe, New Mexico. Mr. David H.

Mahone, C.P.A., appeared and represented Mr. Marc A. Gelinas (“Taxpayer”). Taxpayer

appeared in person and testified on his own behalf. Staff Attorney, Mr. David Mittle, appeared

representing the Taxation and Revenue Department of the State of New Mexico (“Department”).

Protest Auditor, Mr. Thomas Dillon, appeared as a witness for the Department. Department

Exhibit A was admitted into the record without objection and is described in the Administrative

Exhibit Log. Taxpayer proffered Taxpayer Exhibit #5 to which the Department did not initially

object. Upon further consideration, the Department objected at which time the Hearing Officer

determined that Taxpayer Exhibit #5 lacked foundation to establish reliability and

trustworthiness and was not relevant. Taxpayer Exhibit #5, although not proffered as a separate

exhibit, is contained in the administrative file as an attachment to correspondence filed with the

Administrative Hearings Office on October 10, 2017. Taxpayer did not proffer any other
exhibits. Based on the evidence and arguments presented, IT IS DECIDED AND ORDERED AS

FOLLOWS:

FINDINGS OF FACT

1. On March 17, 2017, the Department assessed Taxpayer for the amounts of

$4,378.81 in gross receipts tax, $875.76 in penalty, and $907.17 in interest for a total amount due

of $6,161.74 under Letter ID No. L1020757296 for the reporting periods from January 1, 2010 to

December 31, 2010. [See Administrative File, Letter ID No. L1020757296].

2. On May 22, 2017, Taxpayer submitted correspondence to the Department’s

Protest Office which was received on June 5, 2017. A second copy of the same correspondence

indicated that it was also received in the Department’s Protest Office on June 28, 2017. [See

Administrative File, Correspondence dated May 22, 2017].

3. On June 28, 2017, Taxpayer submitted a second item of correspondence to the

Department’s Protest Office. Although the correspondence purported to be a formal protest, the

Department considered the Taxpayer’s initial correspondence received on June 5, 2017 as the

document initiating Taxpayer’s protest. [See Administrative File, Correspondence dated June 23,

2017].

4. On July 10, 2017, the Department acknowledged the receipt of the Taxpayer’s

protest. [See Administrative File, Letter ID No. L2109484336].

5. On August 14, 2017, the Department requested a hearing in the matter subject of

the Taxpayer’s protest. [See Administrative File, Hearing Request].

In the Matter of the Protest of
Marc A. Gelinas
Page 2 of 14

6. On August 16, 2017, the Administrative Hearings Office issued a Notice of

Telephonic Scheduling Conference that set a hearing on September 8, 2017. [See Administrative

File].

7. On September 8, 2017, a scheduling hearing occurred. Among other deadlines, a

hearing on the merits was scheduled for November 9, 2017. The Administrative Hearings Office

entered a Scheduling Order and Notice of Administrative Hearing on September 8, 2017. [See

Administrative File].

8. On October 10, 2017, Taxpayer submitted correspondence to the Administrative

Hearings Office. The correspondence indicated that it was also provided to counsel for the

Department. [See Administrative File, Correspondence dated October 8, 2017].

9. On November 6, 2017, the Department submitted its portions of the Joint

Prehearing Statement. [See Administrative File].

10. During the relevant periods of time, Taxpayer was a salesperson who sold

implantable medical devices, such as prosthetics for knees, hips and shoulders, on a commission

basis. [See Department’s Joint Prehearing Statement, Sec. II; Testimony of Mr. Gelinas].

11. Taxpayer’s only compensation was in the form of commissions from sales of such

devices. [Testimony of Mr. Gelinas].

12. Taxpayer’s income from commissions were reported on 1099-MISC forms from

the distributors. [See Administrative File; Testimony of Mr. Gelinas].

13. Upon concluding a sale, Taxpayer prepared order forms and distributed copies of

the forms to the buyer, the manufacturer, and the distributor. [Testimony of Mr. Gelinas].

14. Payment for the goods were typically made by the buyer to the manufacturer. The

manufacturer, in turn, would pay a portion of the sales price to the distributor, which would then

In the Matter of the Protest of
Marc A. Gelinas
Page 3 of 14
pay a commission to Taxpayer from its portion of the proceeds from the sale. [Testimony of Mr.

Gelinas].

15. Taxpayer did not receive non-taxable transaction certificates from any buyers of

prosthetic devices. [Testimony of Mr. Gelinas; Testimony of Mr. Dillon].

16. Taxpayer never filed gross receipts reports or made gross receipts tax payments in

relation to compensation he received in the form of commissions from sales of prosthetic

devices. [Testimony of Mr. Dillon].

17. The assessment at issue arose from a Schedule C mismatch. [Testimony of Mr.

Dillon].

18. As of the date of hearing, Taxpayer’s liability for the periods from January 1,

2010 to December 31, 2010 were $4,378.81 in gross receipts tax, $875.76 in penalty, and

$518.48 in interest for a total amount of $5,773.05. [Testimony of Mr. Dillon; Dept. Ex. A].

19. On December 4, 2017, the Administrative Hearings Office entered its Order for

Additional Briefing which requested briefing on the potential application of NMSA 1978,

Section 7-9-66.

20. Taxpayer responded to the Order for Additional Briefing in the form of

correspondence dated December 12, 2017 and received by the Administrative Hearings Office

on December 14, 2017. The Department submitted Department’s Additional Briefing on

December 18, 2017.

DISCUSSION

Based on the evidence presented and the arguments of the parties, the primary issue is

whether the Taxpayer established entitlement to an applicable deduction from gross receipts in

In the Matter of the Protest of
Marc A. Gelinas
Page 4 of 14
the form of commissions earned from the sale of tangible personal property, and more

specifically, implantable medical devices.

Timeliness of Protest

Although the Department does not raise timeliness of the protest as an issue, the Hearing

Officer noted that the Taxpayer’s correspondence dated May 22, 2017 had a date stamp

indicating that it was received in the Department’s Protest Office on June 28, 2017, a date

exceeding 90 days from the date appearing on the face of the assessment. However, a hand-

written notation on the letter indicated that the correspondence was timely submitted. The

notation states “[t]his letter was attached in GenTax 6/5/17 – timely”. This notation is significant

because the date indicated is within the deadline for filing a protest.

To the extent an issue could have been raised as to the timeliness of Taxpayer’s protest

under NMSA 1978, Section 7-1-24, the Department did not do so. Consequently, the Hearing

Officer presumed in the absence of evidence or argument to the contrary that the protest was

timely, and any potential objections as to the timeliness of Taxpayer’s protest were waived.

Unreasonable Delay

Taxpayer objected to the length of time which passed between the transactions giving rise

to the assessment in 2010 and the issuance of the assessment in 2017. NMSA 1978, Section 7-1-

18 (C) provides “[i]n case of the failure by a taxpayer to complete and file any required return,

the tax relating to the period for which the return was required may be assessed at any time

within seven years from the end of the calendar year in which the tax was due, and no

proceeding in court for the collection of such tax without the prior assessment thereof shall be

begun after the expiration of such period.”

In the Matter of the Protest of
Marc A. Gelinas
Page 5 of 14
In this case, it was uncontroverted that Taxpayer did not file returns related to gross

receipts taxes in 2010 which provided the Department with seven years to assess Taxpayer from

the end of the calendar year in which the tax was due. With the exception of gross receipts for

the month of December 2010, the end of the calendar year for all other months in protest would

have been December 31, 2010. Seven years from that date, and the deadline to assess Taxpayer

would have been December 31, 2017. Because gross receipts taxes for December of 2010 would

have been due in January of 2011, the deadline to assess taxes for December of 2010 would have

been seven years from the end of the calendar year in which those taxes were due, or seven years

from December 31, 2011. In any regard, the assessment in this protest, dated March 17, 2017,

was timely and within the period required by Section 7-1-18 (C).

To the extent Taxpayer continues to take issue with the perception of tardiness, despite the

assessment coming within the applicable statute of limitations, New Mexico courts have applied

the general rule of tardiness in administrative hearings under the Tax Administration Act: the

“tardiness of public officers in the performance of statutory duties is not a defense to an action by

the state to enforce a public right or to protect public interests.” See Kmart Props., Inc. v. Taxation

& Revenue Dep't, 2006-NMCA-026, 139 N.M. 177, 131 P.3d 27 (Ct. App. 2001); See also Matter

of Ranchers-Tufco Limestone Project, 1983-NMCA-126, 100 N.M. 632, 674 P.2d 522 (Ct. App.

1983). Collection of taxes is the enforcement of public right/interest, and therefore, despite the

tardiness of its actions, the Department still had an obligation to enforce a public right or protect a

public interest under the rationale of Kmart Props., Inc.

Burden of Proof

Under NMSA 1978, Section 7-1-17(C) (2007), the assessments of tax issued in this case

are presumed correct. Unless otherwise specified, for the purposes of the Tax Administration Act,

In the Matter of the Protest of
Marc A. Gelinas
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“tax” is defined to include interest and civil penalty. See NMSA 1978, Section 7-1-3 (X) (2013).

Under Regulation 3.1.6.13 NMAC, the presumption of correctness under Section 7-1-17 (C)

extends to the Department’s assessment of penalty and interest. 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). Taxpayers have

the burden to overcome the assessments. See Archuleta v. O'Cheskey, 1972-NMCA-165, ¶11, 84

N.M. 428, 431.

Anyone engaging in business in New Mexico is subject to the gross receipts tax. See

NMSA 1978, Section 7-9-4. Gross receipts tax applies to the total amount of money received

from selling property or services in New Mexico. See NMSA 1978, Section 7-9-3.5. For the

purpose of the Gross Receipts and Compensating Tax Act, “gross receipts” includes the total

commissions or fees derived from selling services. See NMSA 1978, Section 7-9-3.5 (A) (2) (b).

If a taxpayer asserts entitlement to an exemption or deduction from gross receipts, then

the burden is on the taxpayer to prove the entitlement to the asserted exemption or deduction. See

Public Service Co. v. N.M. Taxation and Revenue Dep’t., 2007-NMCA-050, ¶ 32, 141 N.M. 520.

See also Till v. Jones, 1972-NMCA-046, 83 N.M. 743. “Where an exemption or deduction from

tax is claimed, the statute must be construed strictly in favor of the taxing authority, the right to

the exemption or deduction must be clearly and unambiguously expressed in the statute, and the

right must be clearly established by the taxpayer.” Sec. Escrow Corp. v. State Taxation and

Revenue Dep’t., 1988-NMCA-068, ¶ 8, 107 N.M. 540. See also Wing Pawn Shop v. Taxation

and Revenue Dep’t., 1991-NMCA-024, ¶ 16, 111 N.M. 735. See also Chavez v. Commissioner of

Revenue, 1970-NMCA-116, ¶ 7, 82 N.M. 97.

In the Matter of the Protest of
Marc A. Gelinas
Page 7 of 14
At the hearing, the parties directed their presentation of evidence and legal argument

toward the application of NMSA 1978, Section 7-9-73 (1992) which states as follows:

7-9-73. Deduction; gross receipts tax; governmental gross
receipts; sale of prosthetic devices.

Receipts from selling prosthetic devices may be deducted from
gross receipts or from governmental gross receipts if the sale is
made to a person who is licensed to practice medicine, osteopathic
medicine, dentistry, podiatry, optometry, chiropractic or
professional nursing and who delivers a nontaxable transaction
certificate to the seller. The buyer delivering the nontaxable
transaction certificate must deliver the prosthetic device incidental
to the performance of a service and must include the value of the
prosthetic device in his charge for the service.

History: 1953 Comp., § 72-16A-14.30, enacted by Laws 1970, ch.
78, § 2; 1992, ch. 100, § 10.

The Department did not dispute that the devices or the sales at issue came within the

scope of Section 7-9-73. The Department’s position was that Taxpayer failed to possess

nontaxable transaction certificates (“NTTCs”) from the buyer of the devices, and that in the

absence of those NTTCs, the Taxpayer was obligated to pay gross receipts taxes on his

commissions from the sales of prosthetic devices.

This application of Section 7-9-73 relies on the presumption that Taxpayer is the “seller”

of the prosthetic devices. However, the evidence established that the Taxpayer was a salesperson

not employed by the seller of any products he sold. Rather, he was an independent contractor of

the distributors utilized by manufacturers for distributing its products. In other words, Taxpayer

was not a “seller” in the sense that he was engaged in “selling” as that term is defined at NMSA

1978, Section 7-9-3 (A), because Taxpayer was not transferring property for consideration. The

Department’s portion of the Joint Prehearing Statement similarly agrees that Taxpayer was not a

“seller.” See Joint Prehearing Statement, Sec. III (Department’s Position).

In the Matter of the Protest of
Marc A. Gelinas
Page 8 of 14
Rather, Taxpayer was an agent of the seller who was compensated in the form of

commissions for transacting sales between the buyers of the prosthetic devices and the

manufacturers. This is illustrated by the uncontroverted testimony regarding the methods by

which the transactions were funded. Taxpayer testified that the buyer of the prosthetic devices

was usually a hospital which made payment directly to the manufacturer. The manufacturer then

paid the distributer a portion of the proceeds from the sale. The distributor would in turn pay a

commission to Taxpayer from its proceeds from the transaction.

Meanwhile, in consideration for payment, ownership of the prosthetic devices would

transfer to the buyer from the manufacturer. There was no evidence to infer that Taxpayer ever

acquired or possessed any ownership interest in the prosthetic devices. Rather, Taxpayer’s only

interest came in the form of commissions paid to Taxpayer which were reported on Form 1099-

MISC as nonemployee compensation.

Since Taxpayer is not a “seller” of prosthetic devices, Section 7-9-73 is not directly

applicable to the issues at protest. However, it does establish that the sales of prosthetic devices

are deductible from gross receipts. This observation is significant because it focuses attention on

the statute that is relevant for consideration in this protest, but largely overlooked by the parties

until further briefing was requested. The statute governing Taxpayer’s protest is NMSA 1978,

Section 7-9-66 which states:

7-9-66. Deduction; gross receipts tax; commissions.

A. Receipts derived from commissions on sales of tangible
personal property which are not subject to the gross receipts tax
may be deducted from gross receipts.

B. Receipts of the owner of a dealer store derived from
commissions received for performing the service of selling from
the owner's dealer store a principal's tangible personal property
may be deducted from gross receipts.
In the Matter of the Protest of
Marc A. Gelinas
Page 9 of 14
C. As used in this section, "dealer store" means a merchandise
facility open to the public that is owned and operated by a person
who contracts with a principal to act as an agent for the sale from
that facility of merchandise owned by the principal.

History: 1953 Comp., § 72-16A-14.22, enacted by Laws 1969, ch.
144, § 57; 1999, ch. 169, § 1.

Consequently, Section 7-9-66 (A) (1999) allows a deduction from gross receipts from

receipts derived from commissions on sales of tangible personal property which are not subject

to gross receipts taxes. The Department provides further interpretation at Regulation 3.2.1.18 HH

(6) which states:

If the receipts from the underlying sale of the tangible property are
exempt or deductible, the commission received by an independent
contractor from selling the tangible property of another may be
subject to the deduction provided by Section 7-9-66 NMSA 1978.

Section 7-9-66 and Regulation 3.2.1.18 HH (6) are directly on point. Taxpayer was an

independent contractor who received commissions from the sales of tangible property of another

that were deductible under Section 7-9-73. Unlike Section 7-9-73, Section 7-9-66 does not

require possession of an NTTC, because it does not require that the seller in the underlying

transaction actually claim the applicable deduction. Rather, Section 7-9-66 only requires that the

transaction be “deductible.” This implementation of Section 7-9-66, as expressed in Regulation

3.2.1.18 HH (6) has been consistent during all periods of time relevant to Taxpayer’s protest, and

remains consistent with the Department’s most recent publication on the subject of gross receipts

taxes. See FYI-105, Gross Receipts & Compensating Taxes: An Overview (Rev. 7/2017), Pg. 17.

The Department’s response to the request for additional briefing did not acknowledge

Regulation 3.2.1.18 HH or FYI-105, but continued to assert that Taxpayer was obligated to

In the Matter of the Protest of
Marc A. Gelinas
Page 10 of 14
possess an NTTC as required by Section 7-9-73, although Taxpayer was also not admittedly, a

“seller”.

The Hearing Officer was unpersuaded that Section 7-9-66 should not apply when the

plain meaning of the statute, the relevant regulation, and the Department’s own publications are

directly on point to the contrary. Although the Department is correct that commissions are

generally subject to gross receipts tax under NMSA 1978, Section 7-9-3.5 and Regulation

3.2.225.9 (C) NMAC, the central issue in this protest comes within an exception to the general

rule established by Section 7-9-66 and implemented by Regulation 3.2.1.18 HH NMAC.

Taxpayer’s protest should be GRANTED because his commissions derived from sales of

prosthetic devices which were not subject to the gross receipts tax. See NMSA 1978, Section 7-

9-66 (A); Regulation 3.2.1.18 HH NMAC; FYI-105 (Rev. 7/2017), Pg. 17.

CONCLUSIONS OF LAW

A. Taxpayer filed a timely written protest to the assessments issued under Letter ID

No. L1020757296 and jurisdiction lies over the parties and the subject matter of this protest.

B. Pursuant to NMSA 1978, Section 7-1-17(C) (2007), the Department’s assessment

is presumed to be correct, and it is Taxpayer’s burden to come forward with evidence and legal

argument to establish entitlement to an abatement.

C. The evidence established that Taxpayer’s gross receipts in the form of

commissions were entitled to the deduction under NMSA 1978, Section 7-9-66 and Regulation

3.2.1.18 HH NMAC because they arose from sales that were also deductible under NMSA 1978,

Section 7-9-73.

In the Matter of the Protest of
Marc A. Gelinas
Page 11 of 14
D. NMSA 1978, Section 7-9-66 does not require Taxpayer to obtain or possess a

nontaxable transaction certificate.

E. NMSA 1978, Section 7-9-73 does not require Taxpayer to obtain or possess an

nontaxable transaction certificate in order to claim a deduction under NMSA 1978, Section 7-9-

66.

For the foregoing reasons, Taxpayer’s protest IS GRANTED. The Department is hereby

ordered to ABATE assessed tax, penalty, and interest.

DATED: January 9, 2018

Chris Romero
Hearing Officer
Administrative Hearings Office
Post Office Box 6400
Santa Fe, NM 87502

In the Matter of the Protest of
Marc A. Gelinas
Page 12 of 14
NOTICE OF RIGHT TO APPEAL

Pursuant to NMSA 1978, Section 7-1-25 (2015), 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. If an appeal is not timely filed with the Court of Appeals within 30 days, this

Decision and Order will become final. Rule of Appellate Procedure 12-601 NMRA articulates

the requirements of perfecting an appeal of an administrative decision with the Court of Appeals.

Either party filing an appeal shall file a courtesy copy of the appeal with the Administrative

Hearings Office contemporaneous with the Court of Appeals filing so that the Administrative

Hearings Office may begin preparing the record proper. The parties will each be provided with a

copy of the record proper at the time of the filing of the record proper with the Court of Appeals,

which occurs within 14-days of the Administrative Hearings Office receipt of the docketing

statement from the appealing party. See Rule 12-209 NMRA.

In the Matter of the Protest of
Marc A. Gelinas
Page 13 of 14
CERTIFICATE OF SERVICE

On January 9, 2018, a copy of the foregoing Decision and Order was mailed to the parties

listed below in the following manner:

In the Matter of the Protest of
Marc A. Gelinas
Page 14 of 14