New Mexico Register / Volume XXXIII,
Issue 10 / May 24, 2022
This is an amendment
to 3.1.8 NMAC, Sections 8 through 16, effective 5/24/2022.
3.1.8.8 [GENERAL RULES ON
FORMAL HEARINGS:
A. Formal
hearings are held in Santa Fe. Hearings
are not open to the public except upon request of the taxpayer. Taxpayers may appear at a hearing for
themselves or be represented by a bona fide employee or an attorney licensed to
practice in New Mexico, certified public accountant or registered public
accountant.
B. Every
party shall have the right of due notice, cross-examination, presentation of
evidence, objection, motion, argument and all other rights essential to a fair
hearing, including the right to discovery as provided in these rules.
C. An
adverse party, or an officer, agent or employee thereof, and any witness who
appears to be hostile, unwilling or evasive may be interrogated by leading
questions and may also be contradicted and impeached by the party calling that
person.
D. The parties may agree to, and the
hearing officer may accept, the joint submission of stipulated facts relevant
to the issue or issues. The hearing
officer may order the parties to stipulate, subject to objections as to
relevance or materiality, to uncontested facts and to exhibits. The hearing officer may also order the
parties to stipulate to basic documents concerning the controversy, such as
audit reports of the department, assessments issued by the department, returns
and payments filed by the party taxpayers and correspondence between the
parties, and to basic facts concerning the identity and business of a taxpayer,
such as the taxpayer’s business locations in New Mexico and elsewhere, the
location of its business headquarters and, if applicable, the state of its
incorporation or registration.] [RESERVED]
[7/19/1967, 11/5/1985,
8/15/1990, 10/31/1996; 3.1.8.8 NMAC - Rn, 3 NMAC 1.8.8, 1/15/2001, A,
8/30/2001; A, 4/30/07, Repealed, 5/24/2022]
3.1.8.9 [HEARING OFFICER:
A. Hearings
in adjudicative proceedings shall be presided over by a hearing officer
designated by the secretary who will be referred to herein as the hearing
officer.
B. The
hearing officer shall have the duty to conduct fair and impartial hearings, to
take all necessary action to avoid delay in the proceedings and to maintain
order. The hearing officer shall have
the powers necessary to carry out these duties, including the following:
(1) to administer or have administered oaths and affirmations;
(2) to cause depositions to be taken;
(3) to require the production and/or inspection of documents
and other items;
(4) to require the answering of interrogatories and requests
for admissions;
(5) to rule upon offers of proof and receive evidence;
(6) to regulate the course of the hearings and the conduct of
the parties and their representatives therein;
(7) to issue a scheduling
order, schedule a prehearing conference for simplification of the
issues, or any other proper purpose;
(8) to schedule, continue and reschedule formal hearings;
(9) to consider and rule upon all procedural and other motions
appropriate in proceeding;
(10) to require the filing of briefs on specific legal issues
prior to or after the formal hearing;
(11) to cause a complete record of proceedings in formal hearings
to be made; and
(12) to make and issue decisions and orders.
C. In
the performance of these functions, the hearing officer shall not be
responsible to or subject to the direction of any officer, employee or agent of
the department.
D. In
the performance of these adjudicative functions, the hearing officer is
prohibited from ex parte discussions with either party on any protested matter.
E. Disqualification
of a hearing officer:
(1) When a hearing officer has substantial doubt as to whether
the hearing officer has a conflicting interest, the hearing officer shall
disqualify himself or herself and withdraw from the hearing by notice on the
record.
(2) Whenever any party believes the hearing officer for any
reason should be disqualified in a particular proceeding, such party may file
with the secretary a motion to disqualify and remove the hearing officer, such
motion to be supported by affidavits setting forth the alleged grounds for
disqualification. A copy of the motion shall be served on the opposing party
and on the hearing officer whose removal is sought. The hearing officer shall
have 25 days from such service within which to accede or to reply to the
allegations. If the hearing officer does not disqualify himself or herself
within that time, the secretary shall promptly review the validity of the
grounds alleged and determine whether or not the hearing officer shall be
disqualified. The secretary's decision shall be final.
(3) If the hearing officer is disqualified, the secretary
shall designate another person to act as hearing officer]. [RESERVED]
[11/5/1985, 1/4/1988,
5/24/1990, 8/15/1990, 10/31/1996; 3.1.8.9 NMAC - Rn, 3 NMAC 1.8.9, 1/15/2001;
A, 8/30/2001, Repealed, 5/24/2022]
3.1.8.10 [EVIDENCE:
A. The
taxpayer shall have the burden of proof, except as otherwise provided by law.
B. Relevant
and material evidence shall be admitted. Irrelevant, immaterial, unreliable or
unduly repetitious evidence may be excluded.
Immaterial or irrelevant parts of an admissible document shall be
segregated and excluded so far as is practicable. The hearing officer shall consider all
evidence admitted.
C. The
hearing officer shall take administrative notice of facts to the extent
provided in the New Mexico Rules of Civil Procedure for District Courts. When any decision of the hearing officer
rests, in whole or in part, upon the taking of administrative notice of a
material fact not appearing in evidence of record, opportunity to disprove such
noticed fact shall be granted any party making timely motion therefor.
D. Parties
objecting to evidence shall timely and briefly state the grounds relied
upon. Rulings of the hearing officer on
all objections shall appear in the record.
E. Formal
exception to an adverse ruling is not required.
F. When
an objection to a question propounded to a witness is sustained, the examining
representative may make a specific offer of what the representative expects to
prove by the answer of the witness, or the hearing officer may, with
discretion, receive and have reported the evidence in full. Excluded exhibits, adequately marked for
identification, shall be retained in the record so as to be available for
consideration by any reviewing authority.] [RESERVED]
[7/19/1967, 11/5/1985,
8/15/1990, 10/31/1996; 3.1.8.10 NMAC - Rn, 3 NMAC 1.8.10, 1/15/2001; A,
8/30/2001, Repealed, 5/24/2022]
3.1.8.11 [RECORD: Hearings shall be electronically recorded
unless the hearing officer allows recording by any alternative means approved
by the New Mexico supreme court for the recording of judicial proceedings. Any party may request that a hearing be
recorded by such an alternative means.
Unless otherwise ordered by the hearing officer, the party requesting
recording by an alternative means will be responsible for the full cost
thereof, including the provision of the original transcript to the hearing
officer and copies to opposing parties..] [RESERVED]
[11/5/1985, 5/24/1990,
8/15/1990, 10/31/1996, 1/15/98; 3.1.8.11 NMAC - Rn, 3 NMAC 1.8.11, 1/15/2001;
A, 8/30/2001, Repealed, 5/24/2022]
3.1.8.12 [PROPOSED FINDINGS,
CONCLUSIONS AND BRIEFS: At
the close of the reception of evidence, or within a reasonable time thereafter
fixed by the hearing officer, the hearing officer may require or any party may
file with the hearing officer proposed orders, proposed findings of fact and
proposed conclusions of law, together with reasons therefore and briefs in
support thereof.] [RESERVED]
[11/5/1985, 8/15/1990,
10/31/1996; 3.1.8.12 NMAC - Rn, 3 NMAC 1.8.12, 1/15/2001, Repealed, 5/24/2022]
3.1.8.13 [DISCOVERY: The
parties are expected to accomplish adequate discovery by the time a formal
hearing is held. This discovery is to be achieved by informal consultation,
stipulation, deposition, requests for admissions and production of documents
and written interrogatories. If adequate
discovery is not achieved within a reasonable time prior to the time a formal
hearing is scheduled, any party may apply to the hearing officer for an order
to require depositions, production of records or answers to
interrogatories. Depositions may be
taken orally or upon written interrogatories and cross-interrogatories. Unless order otherwise by the hearing
officer, responses to interrogatories, requests for production of documents and
requests for admission shall be due thirty days after service of same on a
party. Unless ordered otherwise by the
hearing officer, any notice of deposition shall be served on all opposing
parties at least five working days prior to the date of the deposition. The parties have an obligation to cooperate
in the scheduling of depositions to avoid unnecessary expense to the parties
and inconvenience to witnesses.] [RESERVED]
[11/5/1985, 1/4/1988,
5/24/1990, 8/15/1990, 10/31/1996, 1/15/98; 3.1.8.13 NMAC - Rn, 3 NMAC 1.8.13,
1/15/2001, Repealed, 5/24/2022]
3.1.8.14 [CONSEQUENCES OF FAILURE TO
COMPLY WITH ORDERS:
A. If
a party or an officer or agent of a party fails to comply with an order of the
hearing officer for the taking of a deposition or otherwise relating to
discovery, the hearing officer may, for the purpose of resolving issues and
disposing of the proceeding without unnecessary delay despite such failure,
take such action in regard thereto as is just, including but not limited to the
following:
(1) infer that the admission, testimony, documents or other
evidence sought by discovery would have been adverse to the party failing to
comply;
(2) rule that, for the purposes of the proceeding, the matter
or matters concerning which the order was issued be taken as established
adversely to the party failing to comply;
(3) rule that the noncomplying party may not introduce into
evidence or otherwise rely, in support of any claim or defense, upon testimony
by such party, officer or agent or upon the documents or other evidence
discovery of which has been denied;
(4) rule that the party may not be heard to object to
introduction and use of secondary evidence to show what the withheld admission,
testimony, documents or other evidence would have shown; or
(5) dismiss the protest or order that the
protest be granted.
B. Any
such action may be taken by written or oral order issued in the course of the
proceeding or by inclusion in the decision of the hearing officer. It shall be the duty of parties to seek and
the hearing officer to grant such of the foregoing means of relief or other
appropriate relief as may be sufficient to compensate for the withheld
testimony, documents or other evidence.
C. Any
party who previously requested the secretary to issue a subpoena may request
the secretary to seek the assistance of the court in the enforcement of any
subpoena issued to any person who fails to provide the information or documents
requested in the subpoena under the provisions of Subsection 7-1-4D NMSA 1978.] [RESERVED]
[11/5/1985, 8/15/1990,
10/31/1996; 3.1.8.14 NMAC - Rn & A, 3 NMAC 1.8.14, 1/15/2001; A, 8/30/2001,
Repealed, 5/24/2022]
3.1.8.15 [PREHEARING CONFERENCES:
A. The
hearing officer may, and upon motion of any party shall, direct representatives
for all parties to meet with the hearing officer for a prehearing conference to
consider any or all of the following:
(1) simplification and clarification of the issues;
(2) stipulations and admissions of fact and of the contents
and authenticity of documents;
(3) expedition in the discovery and presentation of evidence,
including, but not limited to, restriction on the number of expert, economic or
technical witnesses;
(4) matters of which administrative notice will be taken; and
(5) such other matters as may aid in the orderly and
expeditious disposition of the proceeding, including disclosure of the names of
witnesses and the identity of documents or other physical exhibits which will
be introduced in evidence in the course of the proceeding.
B. Prehearing
conferences may be recorded in the discretion of the hearing officer.
C. The
hearing officer may enter in the record an order which recites the results of
the conference. Such order shall include the hearing officer's rulings upon
matters considered at the conference, together with appropriate directions to
the parties. The hearing officer's order
shall control the subsequent course of the proceeding, unless modified to
prevent manifest injustice.] [RESERVED]
[7/19/1967, 11/5/1985,
8/15/1990, 10/31/1996; 3.1.8.15 NMAC - Rn, 3 NMAC 1.8.15, 1/15/2001; A,
8/30/2001, Repealed, 5/24/2022]
3.1.8.16 [MOTIONS:
A. After
a formal hearing is scheduled on a protest, all motions shall be addressed to
the hearing officer with copies to the opposing parties and shall be ruled upon
by the hearing officer.
B. All
written motions shall state the particular order, ruling or action desired and
the grounds therefor.
C. Within
ten calendar days after personal service or
service by facsimile transmission of any written motion, or within
thirteen calendar days after the motion is mailed or within such longer or
shorter time as may be designated by the hearing officer, the opposing party
shall answer or shall be deemed to have consented to the granting of the relief
asked for in the motion. The moving
party shall have no right to reply, except as permitted by the hearing officer.] [RESERVED]
[11/5/1985, 8/15/1990,
10/31/1996; 3.1.8.16 NMAC - Rn, 3 NMAC 1.8.16, 1/15/2001; A, 8/30/2001,
Repealed, 5/24/2022]