Court of Appeals of New Mexico
Decision Information
Chapter 7 - Taxation - cited by 2,762 documents
Rule Set 12 - Rules of Appellate Procedure - cited by 9,546 documents
Decision Content
TAX & REV V. CLOUTIER
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STATE OF NEW MEXICO TAXATION
AND REVENUE DEPARTMENT,
Plaintiff-Appellant,
v.
MARIA CLOUTIER and ROBERT CLOUTIER,
Defendants-Appellees.
IN THE MATTER OF THE PROTEST OF
MARIA CLOUTIER and ROBERT CLOUTIER.
NO. 30,096
COURT OF APPEALS OF NEW MEXICO
January 3, 2012
APPEAL FROM THE TAXATION AND REVENUE DEPARTMENT, Monica
Ontiveros, Hearing Officer
COUNSEL
Gary K. King, Attorney General, Carolyn A. Wolf, Special Assistant Attorney General, Santa Fe, NM, for Appellant
Maria and Robert Cloutier, Albuquerque, NM, Pro Se Appellees
JUDGES
TIMOTHY L. GARCIA, Judge. WE CONCUR: JAMES J. WECHSLER, Judge, LINDA M. VANZI, Judge
AUTHOR:
MEMORANDUM OPINION
Garcia, Judge.
The Taxation and Revenue Department (Department) appeals from the order of its hearing officer concerning penalties due by Maria and Robert Cloutier (Taxpayers) in connection with gross receipt taxes for the tax years 2005 and 2006. We reverse.
Prior to January 1, 2008, NMSA 1978, Section 7-1-69(A) (2003) (amended 2007) provided that a penalty of two percent per month or any fraction of a month would be added to the amount of an assessment if a taxpayer failed to file a tax return or to pay taxes when due because of negligence of disregard of Department rules or regulations, but without intent to evade or defeat a tax. The statute then provided a maximum penalty of ten percent. Section 7-1-69(A)(1) (2003). In 2007, the Legislature amended Section 7-1-69 to increase the maximum penalty to twenty percent effective January 1, 2008. 2007 N.M. Laws, ch. 45, §§ 4, 16; NMSA 1978, § 7-1-69(A) (2007).
On November 3, 2008, the Department issued two assessments to Taxpayers for gross receipt taxes due in 2005 and 2006, including interest and a twenty percent penalty. Taxpayers protested the assessments. The hearing officer denied the protest, but reduced the penalty to ten percent based upon the application of the 2007 amendment to Section 7-1-69.
The Department appealed the hearing officer’s order and filed its brief in chief on April 15, 2010. After Taxpayer did not file an answer brief, the Court notified Taxpayer by order on September 9, 2010, that the case would be submitted to a panel for decision based on the brief in chief.
The Court has addressed the same issue raised in this appeal in GEA Integrated Cooling Technology v. New Mexico Taxation and Revenue Department, 2011-NMCA-__, __ N.M. __, __ P.3d __ (No. 30,790, Dec. 8, 2011), in which we considered the briefs of the parties and conducted oral argument. In GEA Integrated Cooling Technology, we held that the date of the assessment under Section 7-1-69 determines the maximum penalty that the Department is to apply. GEA Integrated Cooling Technology, 2011-NMCA-__, ¶ 10. In that case, the department issued an assessment in 2009 for gross receipts taxes due in 2006 and 2007. Id. ¶ 2. Thus, we held that the 2007 amendment and the twenty percent maximum penalty applied to the assessment. Id. ¶ 15. Based on GEA Integrated Cooling Technology, we reach the same result in this case.
CONCLUSION
We partially reverse the decision of the hearing officer regarding the assessments for the tax years 2005 and 2006 to the extent that they imposed the ten percent maximum penalty. The 2007 amendment to Section 7-1-69 was in effect at the time the Department issued its assessment on November 3, 2008, and the Department correctly imposed a twenty percent maximum penalty for the assessments made for the 2005 and 2006 tax years.
IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge