Could a taxpayer revive a missed 90-day protest deadline for a denied New Mexico High-Wage Jobs Tax Credit by later claiming the same denied amount as a refund?

Plain-English summary

A refund application could not give Precheck a second chance to protest a High-Wage Jobs Tax Credit denial after the original 90-day deadline expired. The Administrative Hearings Office granted summary judgment to the Department and denied the company's protest over $178,341.46.

Precheck, established in 1983, provided criminal-background-check and investigation services. In December 2016 it applied for $186,140.03 of High-Wage Jobs Tax Credit for 2011 through 2015.

On June 12, 2017, the Department approved $7,798.57 and denied the remaining $178,341.46. The notice told Precheck that FYI-402 explained how to protest and that a written protest had to be filed within 90 days. Precheck used $2 of the approved credit and received a check for the remaining $7,796.57.

The deadline to protest the partial denial was September 11, 2017, the first business day after the 90th day fell on a Sunday. Precheck did not file a protest by that date. Instead, on October 24—44 days after the deadline—it submitted a refund application for the same $178,341.46 that had already been denied.

Tax-credit eligibility had one protest path

Section 7-1-24 expressly governed protests involving a “tax credit” and required filing within 90 days. The AHO held that this was the exclusive route to challenge the Department's partial denial of High-Wage Jobs Tax Credit eligibility.

Section 7-1-26 allowed refund claims by a person who had overpaid tax, had been denied a credit or rebate, or asserted another qualifying refund right. But in that context, the AHO read “credit” in its ordinary account sense—a balance in the taxpayer's favor or a deduction from an amount due—rather than a second procedure for litigating eligibility for a statutory tax credit.

The distinction fit the High-Wage Jobs Tax Credit statute, which said an approved credit could be claimed against modified combined tax liability. The disputed $178,341.46 was never approved, so the state was not indebted to Precheck for that amount.

A refund claim could not reset the clock

Allowing a taxpayer to wait out Section 7-1-24's deadline and then file a refund claim for the denied tax credit would make the original protest procedure and its deadline meaningless. The AHO rejected that reading as inconsistent with the statutes as a whole.

Sections 7-1-26(D) and (E) also prohibited simply refiling a denied refund claim and supplied a 90-day protest period for a refund denial. They did not authorize relitigation of an earlier tax-credit denial whose own protest deadline had expired.

Because the material facts were undisputed, the issue was purely legal and suitable for summary judgment.

Result: Department's motion GRANTED; taxpayer's protest DENIED. The opportunity to contest the $178,341.46 partial tax-credit denial expired on September 11, 2017.

What this means for you

Businesses receiving a partial tax-credit approval

Treat the denial notice as the event that starts the protest deadline. Accepting or using the approved portion does not preserve a later challenge to the denied portion.

Tax departments tracking administrative deadlines

Calendar the 90-day date immediately and account for weekends. Here, the deadline moved to Monday because day 90 fell on Sunday.

Taxpayers considering a refund claim

A refund claim is not necessarily a substitute for a timely protest of credit eligibility. Determine whether the dispute concerns entitlement to a statutory tax credit or use of an already approved account balance.

Accountants and representatives

The Department's notice directed the taxpayer to its remedies publication. When a notice gives a protest route and deadline, waiting to pursue a different form can forfeit review of the underlying issue.

Common questions

Q: How much High-Wage Jobs Tax Credit did Precheck request?
A: $186,140.03 for periods from 2011 through 2015.

Q: How much did the Department approve?
A: $7,798.57. Precheck claimed $2 against liability and received a $7,796.57 refund check for the remainder.

Q: What amount was denied?
A: $178,341.46, the difference between the requested and approved credits.

Q: When did the protest deadline expire?
A: September 11, 2017. The 90th day was Sunday, September 10, so the deadline moved to the next business day.

Q: Why didn't the October 24 refund application preserve the dispute?
A: It sought the exact amount already denied and was filed 44 days after the tax-credit protest deadline. Section 7-1-26 did not provide a second eligibility protest.

Q: Did the AHO decide whether Precheck's jobs actually qualified for the credit?
A: No. The ruling resolved the procedural question on summary judgment: the deadline to challenge the Department's eligibility decision had expired.

Citations and references

Statutes:

• NMSA 1978, § 7-1-24 — protest procedure and deadline for denial of a tax credit
• NMSA 1978, § 7-1-26(A), (D), (E), and (F) — refund claims and credits or rebates
• NMSA 1978, § 7-9G-1(M) — claiming an approved High-Wage Jobs Tax Credit
• NMSA 1978, § 7-1-2(A)(16) — inclusion of the High-Wage Jobs Tax Credit within the Tax Administration Act
• NMSA 1978, § 7-1B-6(D) — administrative-hearing timing

Case cited:

• Romero v. Philip Morris Inc., 2010-NMSC-035 — summary judgment when no material fact is genuinely disputed and the movant is entitled to judgment as a matter of law

Source

• Listing: New Mexico Decisions & Orders
• Decision post: Precheck Inc
• Decision PDF: D&O 18-29

Original ruling text

STATE OF NEW MEXICO
ADMINISTRATIVE HEARINGS OFFICE
TAX ADMINISTRATION ACT

IN THE MATTER OF THE PROTEST OF
PRECHECK INC.
TO DENIAL OF REFUND ISSUED UNDER
LETTER ID NO. L0248636208

v. D&O No. 18-29
AHO Case No. 18.01-003R

NEW MEXICO TAXATION AND REVENUE DEPARTMENT

DECISION AND ORDER
GRANTING SUMMARY JUDGMENT

This matter came before the Administrative Hearings Office, Chris Romero, Esq., Hearing

Officer, on the Taxation and Revenue Department’s Motion for Summary Judgment and

Memorandum in Support (hereinafter “Motion”). The Taxation and Revenue Department

(hereinafter “Department”) filed its Motion on June 22, 2018, by and through its counsel of

record, Ms. Tonya Noonan Herring, Esq. Precheck, Inc. (hereinafter “Taxpayer”), by and through

its counsel of record, Mr. Timothy R. Van Valen, Esq. (Askew & Mazel, L.L.C.) filed Precheck’s

Response to Department Motion for Summary Judgment (hereinafter “Response”) on July 9,

2018.

Having reviewed the Motion and Response, having duly considered the undisputed

material facts, and otherwise being fully informed in the premises, IT IS DECIDED AND

ORDERED AS FOLLOWS:

FINDINGS OF FACT

Procedural History

1. On November 17, 2017, the Department notified Taxpayer that it reviewed and

denied its claim for Combined Reporting System (CRS) refund in the amount of $178,341.46 for
the calendar years 2011 to 2015 (hereinafter “Refund Denial”). The Refund Denial was issued

under Letter ID No. L0248636208 and stated that the denial was “due to denial of the High Wage

Tax Credit as per Letter ID number L0515257648.” [See Administrative File].

2. On November 20, 2017, Taxpayer, by and through Axiom Certified Public

Accountants and Business Advisors, L.L.C. (hereinafter “Axiom”) submitted a formal written

protest of the Department’s Refund Denial. [See Administrative File].

3. Taxpayer’s written protest was accompanied by a copy of its Application for

Refund, dated October 24, 2017, a Tax Information Authorization, and Authorization to Provide

Tax Information by Facsimile and E-Mail. [See Administrative File].

4. On December 4, 2017, the Department acknowledged Taxpayer’s formal written

protest under Letter ID No. L1152783152. [See Administrative File].

5. On January 3, 2018, the Department filed a Hearing Request in which it requested

that the Administrative Hearings Office set a scheduling hearing for the purpose of scheduling

matters pertinent to Taxpayer’s protest. [See Administrative File].

6. On January 3, 2018, the Administrative Hearings Office entered a Notice of

Telephonic Scheduling Conference that set a scheduling hearing in reference to Taxpayer’s protest

for January 24, 2018. [See Administrative File].

7. On January 10, 2018, Taxpayer, by and through Mr. Wryan Capps, CPA, of

Axiom, filed a Motion to Reschedule Telephonic Scheduling Conference. [See Administrative

File].

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8. On January 16, 2018, the Administrative Hearings Office entered an Amended

Notice of Telephonic Scheduling Conference that set a scheduling hearing in reference to

Taxpayer’s protest for February 2, 2018. [See Administrative File].

9. On February 5, 2018, the Administrative Hearings Office entered a Scheduling

Order and Notice of Administrative Hearing that set a hearing on the merits of Taxpayer’s protest

for October 29, 2018. [See Administrative File].

10. On June 22, 2018, the Department filed Taxation and Revenue Department’s

Motion for Summary Judgment and Memorandum in Support. [See Administrative File; Motion].

11. On July 9, 2018, Taxpayer’s attorney of record, Mr. Van Valen, filed an Entry of

Appearance. [See Administrative File].

12. On July 9, 2018, Taxpayer filed Precheck’s Response to Department Motion for

Summary Judgment. [See Administrative File].

13. On July 10, 2018, Taxpayer filed a Corrected Certificate of Service and Filing. [See

Administrative File].

14. On August 24, 2018, the Department filed a Notice of Completion of Briefing and

Motion Requesting Ruling on the Department Motion for Summary Judgment. Taxpayer opposed

the relief requested therein. [See Administrative File].

Stipulated or Undisputed Material Facts

15. Taxpayer has been registered with the Department since June 15, 2006. [See

Motion, Ex. A-001 – A-003; Response, Sec. I].

16. Taxpayer was established in 1983 and provides criminal background checks and

investigation services. [See Motion, Ex. B-001; Response, Sec. I].

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17. On December 19, 2016, Taxpayer, by and through Axiom, submitted an

Application for High Wage Jobs Tax Credit (hereinafter “Tax Credit Application”). [See Motion,

Ex. C-001-002; Response, Sec. I].

18. Taxpayer’s Tax Credit Application sought a High Wage Jobs Tax Credit in the

amount of $186,140.03 for periods from 2011 to 2015. [See Motion, Ex. B-001 and C-001;

Response, Sec. I].

19. On June 12, 2017, under Letter ID No. L0515257648, the Department partially

approved Taxpayer’s Tax Credit Application in the amount of $7,798.57. Consequently, the

Department disallowed the difference of the total credit requested and the total credit approved in

the amount of $178,341.46 (hereinafter “Partial Denial” in reference to amount of credit

application not approved). [See Motion Ex. D; Response, Sec. I].

20. The Partial Denial directed Taxpayer to a publication providing information on

“claiming your approved credit” identified therein as Credit Approval # 555393024. [See Motion

Ex. D; Response, Sec. I].

21. The Partial Denial further stated “If you disagree with the partial denial of this

credit, enclosed is a copy of the FYI 402 TAXPAYER REMEDIES that details the procedures to

protest the partial denial of the credit.” [See Motion Ex. D].

22. FYI 402 TAXPAYER REMEDIES states “You may dispute a tax liability or

certain actions the department might take against you under the Tax Administration Act in one of

two ways: 1) file a written protest with the Secretary of Taxation and Revenue without making

payment, or 2) pay the tax liability and then file a refund claim.” [See Motion Ex E].

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23. FYI 402 TAXPAYER REMEDIES further provides, “If you choose to protest, you

must do so in writing within 90 days of the date of the event you are protesting.” [See Motion Ex

E-001]

24. On or about, June 14, 2017, Axiom submitted a High-Wage Jobs Tax Credit Claim

Form to the Department to redeem $2.00 of the credit under Credit Approval #555393024 and

requested a refund of the remaining approved tax credit in the amount of $7,796.57. [See Motion

Ex. F-001; Response, Sec. I].

25. On or about June 19, 2017, the Department issued a check to Taxpayer for the

approved tax credit in the amount of $7,796.57, which was subsequently negotiated by Taxpayer

on or about June 26, 2017. [See Motion Ex. G; Response, Sec. I].

26. Taxpayer did not protest the Partial Denial of its Tax Credit Application on or

before Monday, September 11, 2017, which represented the first business day after the 90th day

from the date of the Partial Denial (the 90th day fell on Sunday, September 10, 2017).

27. On or about October 24, 2017, Axiom submitted an Application for Refund to the

Department in the amount of $178,341.46 (hereinafter “Refund Application”). [See Motion Ex. H,

Response, Sec. I].

28. The amount of the refund requested in Taxpayer’s Refund Application was the

same amount as the tax credit previously denied in Department’s Partial Denial. [See Motion Ex.

B, Response, Sec. I].

DISCUSSION

The principal issue in this protest is whether Taxpayer, after declining the right to protest the

Partial Denial of its Tax Credit Application under NMSA 1978, Section 7-1-24, is entitled to a second

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opportunity to protest same the determination by filing a Refund Application, asserting entitlement

to the previously denied credit, and then protesting the eventual denial of the Refund Application

under NMSA 1978, Section 7-1-26.

For the reasons explained herein, the answer is no. The Tax Administration Act does not

provide more than one opportunity for a taxpayer to protest an adverse determination of the

Department in reference to the denial, or partial denial, of a High Wage Jobs Tax Credit

application. Holding otherwise would produce absurd results not intended by the Legislature, and

require that certain terms and provisions of Section 7-1-24 be rendered surplusage and superfluous

in order to comport with the Taxpayer’s view of the law.

Summary Judgment Standard.

Summary Judgment is appropriate when there is no genuine dispute as to any material fact

and the moving party is entitled to prevail as a matter of law. See Romero v. Philip Morris Inc.,

2010-NMSC-035, ¶7, 148 N.M. 713, 242 P.3d 280. In controversies involving a question of law,

or application of law where there are no disputed facts, summary judgment is appropriate. See

Koenig v. Perez, 1986-NMSC-066, ¶10-11, 104 N.M. 664, 726 P.2d 341. The Hearing Officer

perceives the matter herein as suitable for summary judgment since there are no disputed issues of

material fact and the rights of the parties may be determined by merely resolving the question of

law presented above.

The facts establish that Taxpayer did not initiate a protest of its Partial Denial of its Tax

Credit Application under Section 7-1-24, and the opportunity to do so closed on September 11,

2017. Rather, Taxpayer filed a Refund Application on October 24, 2017 in which it requested a

refund equivalent to the amount subject of the Partial Denial, or in other words, asserting

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entitlement to the previously disallowed tax credit. When the Refund Application was

subsequently denied, due to the previous denial of the claimed tax credit, Taxpayer filed its protest

under Section 7-1-26, asserting a right to protest the underlying Partial Denial because that formed

the basis for the denial of if Refund Application. See Motion, Ex. J.

Accordingly, the question of law presented by this protest requires the construction of

NMSA 1978, Sections 7-1-24 and 7-1-26, of the Tax Administration Act. The first establishes the

right of a taxpayer to dispute adverse determinations of the Department with respect to

assessments, the application of any provision of the Tax Administration Act, “the denial of or

failure either to allow or to deny” a credit or rebate, or a “claim for refund made in accordance

with Section 7-1-26[.]” See NMSA 1978, Section 7-1-24 A.

The latter establishes the mechanism through which a taxpayer may request a refund and

subsequently dispute an adverse determination with respect to that refund. Similar to the prior

statute, the latter also refers to denial of a “credit or rebate claimed.” See NMSA 1978, Section 7-

1-26. It is by virtue of this commonality of subject matter that the current dispute arises.

Rules of Statutory Construction.

Questions of statutory construction begin with the plain-meaning rule. See Wood v. State

Educ. Ret. Bd., 2011-NMCA-020, ¶12, 149 N.M. 455, 250 P.3d 881. In Wood, the Court of Appeals

stated “that the guiding principle in statutory construction requires that we look to the wording of the

statute and attempt to apply the plain meaning rule, recognizing that when a statute contains language

which is clear and unambiguous, we must give effect to that language and refrain from further

statutory interpretation.” Id. A statutory construction analysis begins by examining the words chosen

by the legislature and the plain meaning of those words. See State v. Hubble, 2009-NMSC-014, ¶13,

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146 N.M. 70, 206 P.3d 579. Extra words should not be read into a statute if the statute is plain on its

face, especially if it makes sense as written. See Johnson v. N.M. Oil Conservation Comm’n, 1999-

NMSC-21, ¶ 27, 127 N.M. 120, 126, 978 P.2d 327, 333.

In this case, Taxpayer contends that it was not required to protest the denial of its Tax Credit

Application under Section 7-1-24 because Section 7-1-26 provided a separate, additional right of

protest when it similarly referred to “credit.” Section 7-1-26 (A) (2015) provides in part:

A. A person who believes that an amount of tax has been paid by or
withheld from that person in excess of that for which the person was
liable, who has been denied any credit or rebate claimed or who
claims a prior right to property in the possession of the department
pursuant to a levy made under authority of Sections 7-1-31 through 7-
1-34 NMSA 1978 may claim a refund by directing to the secretary,
within the time limited by the provisions of Subsections F and G of
this section, a written claim for refund. At the time the written claim is
submitted, except as provided in Subsection K of this section, a refund
claim shall include:

…

(2) the type of tax for which a refund is being claimed, the credit
or rebate denied or the property levied upon;
…

(Emphasis Added)

The application of Section 7-1-26 is significant to Taxpayer because it allegedly provides an

alternative method of protesting the Department’s underlying Partial Denial of its Tax Credit

Application. Accordingly, if the law permits Taxpayer to protest the Partial Denial through the

subsequent Refund Denial, then its protest is timely, having been filed within 90 days of the date of

the Refund Denial. If not, then its right of protest closed on September 11, 2017, 44 days before it

filed its Refund Application.

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The Department contends that Taxpayer’s reliance on Section 7-1-26 is misplaced because

the law applicable to Taxpayer’s Tax Credit Application is Section 7-1-24, which in relevant part

provides:

D. A protest by a taxpayer shall be filed within ninety days of the date
of the mailing to or service upon the taxpayer by the department of the
notice of assessment or other peremptory notice or demand, the date of
mailing or filing a return, the date of the application to the taxpayer of
the applicable provision of the Tax Administration Act, the date of
denial of a claim pursuant to Section 7-1-26 NMSA 1978 or the last
date upon which the department was required to take action on the
claim but failed to take action.

Resolution of the dispute requires no more than referring to the plain meaning of the words

used by the Legislature. The plain language of Section 7-1-26 reveals the Legislature’s intentions that

it relate to claims for refund in which the State, as a result of an overpayment or denial of a credit or

rebate, becomes “indebted to the taxpayer for a specified amount” of money. (Emphasis Added). This

proposes that when the legislature utilized the term “credit,” in this context, it was not necessarily

referring to a statutory tax credit, such as the High Wage Jobs Tax Credit, but rather the plain

meaning of that word “credit”: “2a: the balance in a person’s favor in an account” or “f: a deduction

from an amount otherwise due[.]” See https://www.merriam-webster.com/dictionary/credit.

The conclusion that the Legislature intended a plain meaning for the word, “credit,” in

Section 7-1-26 is supported by the fact that Section 7-1-24 makes specific reference to the category of

credit it is intended to encompass. It states that “[e]very protest shall identify the taxpayer and the tax

credit, rebate, property or provision of the Tax Administration Act involved and state the grounds for

the taxpayer’s protest and the affirmative relief requested.” See NMSA 1978, Section 7-1-24 B.

Reference to “credit” in Section 7-1-26 omits such description, referring merely to “credit” rather

than “tax credit.” Accordingly, the Legislature intended that Section 7-1-24 govern the protest of

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adverse determinations relating to “tax credits.” A review of NMSA 1978, Section 7-9G-1, the statute

under which Taxpayer’s underlying Tax Credit Application arose, reveals no less than a dozen

references to the term “tax credit” or “high-wage jobs tax credit.” Had the Legislature intended

otherwise, it would have similarly utilized the term “tax credit” in Section 7-1-26. It did not, and extra

words should not be read into a statute if the statute is plain on its face, especially if it makes sense as

written. See Johnson, 1999-NMSC-21, ¶ 27.

This conclusion is additionally reinforced by the fact that the Legislature, in enacting Section

7-1-26, intended that the denial of a credit concurrently give rise to the state’s indebtedness to

Taxpayer. In other words, it intended Taxpayer to establish that a balance, or approved credit,

actually exists in its favor, which should reduce its liability if appropriately credited to its account,

and but for the appropriate credit, the state was indebted to Taxpayer.

For instance, Section 7-1-26 F (2) contemplates that disputes may indeed arise with concern

for the sum or expenditure of an approved credit. It refers to various tax credit statutes, all of which

place conditions on applying previously-approved credits toward tax liabilities. In other words,

disputes arising from Section 7-1-26 F (2) concern how an approved credit is to be applied toward a

tax liability, rather than disputes regarding a taxpayer’s underlying eligibility for the credit. See e.g.

NMSA 1978, Section 7-9A-8 B (“A taxpayer having applied for and been granted approval for a

credit…”); NMSA 1978, Section 7-9E-5 and Section 7-9E-8 (eligibility must be established prior to

claiming credit); NMSA 1978, Section 7-9F-9 B (“A taxpayer having applied for and been granted

approval for a credit…”); NMSA 1978, Section 7-2E-1.1 G (“The holder of a tax credit document

may apply all or a portion of the rural job tax credit granted by the department…”). With concern for

the specific tax credit underlying the issue in this protest, the High Wage Jobs Tax Credit provides

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“an approved high-wage jobs tax credit shall be claimed against the taxpayer’s modified combined

tax liability…” See NMSA 1978, Section 7-9G-1 M.

In this case, the Department has not approved the Taxpayer’s tax credit, at least with respect

to the amount in controversy, and the Department is not indebted to Taxpayer in that amount. The

Department expressly denied the amount of the High Wage Jobs Tax Credit which Taxpayer now

requests be refunded. However, the Department is simply not indebted to Taxpayer for the amount of

a tax credit it never approved.

Therefore, the plain meaning of Section 7-1-26 clearly illustrates that Taxpayer’s position is

misplaced. The Legislature did not intend to create two separate and distinct opportunities for

taxpayers to challenge the denial of a tax credit. In fact, the Legislature expressly rejected the notion

that taxpayer’s could circumvent the obligation to file a protest by refiling a claim, similar to the

approach Taxpayer took in this case. See NMSA 1978, Section 7-1-26 D (1) and E (prohibiting a

denied refund claim from being refiled and providing 90 days to protest under Section 7-1-24).

Incidentally, even if the Hearing Officer was slightly in agreement with Taxpayer’s interpretation of

Section 7-1-26, its protest of the underlying denial would still be untimely under Section 7-1-26 (D)

(1) requiring that a protest be filed within 90 days of a claim being denied.

The Hearing Officer is also unpersuaded by Taxpayer’s recitation of legislative history and its

ensuing argument. In summary, Taxpayer asserts that NMSA 1978, Section 7-1-24 (2013) did not

specifically provide a right to protest the denial of a tax credit, and before its amendment, Section 7-

1-26 provided the only mechanism for protesting such denial. Accordingly, Taxpayer claims the

intent of Section 7-1-26 has always been to provide for the protest of denials of tax credits, even

before the current version of Section 7-1-24 was enacted. Taxpayer’s argument fails to persuade

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because it relies on the premise that Section 7-1-24 (2013) did not permit the right to protest the

denial of a tax credit. However, that statute always provided a right of protest stating that any

taxpayer could dispute through an administrative protest “the application of any provision of the Tax

Administration Act[.]” See NMSA 1978, Section 7-1-24 A (2013). Under NMSA 1978, Section 7-1-2

A (16), that expressly included the High Wage Jobs Tax Credit.

The accuracy of this conclusion easily withstands further scrutiny when viewed in the light of

well-settled law prohibiting statutes from being construed in a manner that renders any of their terms

superfluous or surplusage. “We are to read the statute in its entirety and construe each part in

connection with every other part to produce a harmonious whole.” See Key v. Chrysler Motors Corp.,

1996-NMSC-038, ¶14, 121 N.M. 764, 918 P.2d 350 citing General Motors Acceptance Corp. v.

Anaya, 1985-NMSC-066, ¶15, 103 N.M. 72, 703 P.2d 169. Accordingly, “all provisions of the act

will be considered in relation to one another, with the attempt to render no part surplusage or

superfluous.” See Nat'l Union of Hosp. & Health Care Emples. Dist. No. 1199 N.M., AFL-CIO, CLC

v. Bd. of Regents of the Univ. of N.M., 2010-NMCA-102, ¶23, 149 N.M. 107, 245 P.3d 51 (Emphasis

Added).

In this case, construing Section 7-1-26 as affording a separate opportunity, and perhaps a

second chance, to protest the denial of a tax credit, when that taxpayer previously declined the

opportunity to protest under Section 7-1-24, would render all provisions of the latter, at least with

respect to tax credits, superfluous, surplusage, and meaningless contrary to the rules of statutory

construction. Taxpayers would consequently be entitled to entirely disregard Section 7-1-24, and its

mandated deadlines, in favor of other, perhaps more favorable deadlines, under Section 7-1-26. This

would conceivably permit taxpayers to benefit from any advantages that might be derived from the

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passage of time, such as Department turnover, without providing any counterbalancing benefit to the

state. It is irrational to conclude that the Legislature’s deliberative process would intend such an

absurd result.

The Department’s Motion should be, and hereby is GRANTED . Taxpayer’s protest is

DENIED.

CONCLUSIONS OF LAW

A. Taxpayer did file a timely, written protest of the Department’s Refund Denial and

jurisdiction lies over the parties and the subject matter of this protest. See NMSA 1978, Section 7-1-

26.

B. The subject matter of the protest arising from the Department’s Refund Denial is

limited to consideration of the question of law presented herein. See NMSA 1978, Section 7-1-24;

NMSA 1978, Section 7-1-26.

C. A hearing was held within 90 days of Taxpayer’s protest. See NMSA 1978, Section 7-

1B-6 (D).

D. There is no genuine dispute as to any material fact and summary judgment is

appropriate. See Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶7, 148 NM 713.

E. NMSA 1978, Section 7-1-26 does not provide an alternative right of protest for the

denial of the high wage jobs tax credit in addition to, or in lieu of the right provided by NMSA

1978, Section 7-1-24.

F. The right of protest to the denial of the high wage jobs tax credit is contained

exclusively in NMSA 1978, Section 7-1-24.

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G. The opportunity to protest the Department’s Partial Denial of the Tax Credit

Application expired on September 11, 2017. See NMSA 1978, Section 7-1-24; See Chevron U.S.A.,

Inc. v. State ex rel. Dep’t of Taxation & Revenue, 2006-NMCA-050, ¶16, 139 N.M. 498, 134 P.3d

785.

For the foregoing reasons, Taxpayer’s protest is DENIED.

DATED: September 14, 2018

Chris Romero
Hearing Officer
Administrative Hearings Office
P.O. Box 6400
Santa Fe, NM 87502

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.

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CERTIFICATE OF SERVICE

On September 14, 2018, a copy of the foregoing Decision and Order Granting Summary

Judgment was mailed to the parties listed below in the following manner:

First Class Mail Interdepartmental Mail

INTENTIONALLY BLANK

John D. Griego
Legal Assistant
Administrative Hearings Office
Post Office Box 6400
Santa Fe, NM 87502
PH: (505)827-0466
FX: (505)827-9732
[email protected]

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