TITLE 22: COURTS
CHAPTER 600: ADMINISTRATIVE HEARINGS OFFICE
PART 3: HEARINGS UNDER THE TAX
ADMINISTRATION ACT
22.600.3.1 ISSUING AGENCY:
Administrative Hearings Office, Wendell Chino Building, 1220 South St.
Francis Drive, P.O. Box 6400, Santa Fe, NM
87502.
[22.600.3.1 NMAC - Rp.
22.600.3.1 NMAC, 8/25/2020]
22.600.3.2 SCOPE: This part applies to
the taxation and revenue department and all taxpayers, their agents and
representatives protesting an action of the taxation and revenue department
under Section 7-1-24 NMSA 1978 of the Tax Administration Act and seeking a
hearing under Section 7-1B-8 NMSA 1978 of the Administrative Hearings Office
Act.
[22.600.3.2 NMAC - Rp.
22.600.3.2 NMAC, 8/25/2020]
22.600.3.3 STATUTORY AUTHORITY:
Paragraph (1) of Subsection A of 7-1.B-5 NMSA 1978.
[22.600.3.3 NMAC - Rp.
22.600.3.3 NMAC, 8/25/2020]
22.600.3.4 DURATION: Permanent.
[22.600.3.4 NMAC - Rp.
22.600.3.4 NMAC, 8/25/2020]
22.600.3.5 EFFECTIVE DATE: August 25,
2020, unless a later date is cited at the end of a section, in which case the
later date is the effective date.
[22.600.3.5 NMAC - Rp.
22.600.3.5 NMAC, 8/25/2020]
22.600.3.6 OBJECTIVE: The objective of
this part is to provide procedural rules and guidance about the tax protest
hearing process before the administrative hearings office under the provisions
of the Tax Administration Act and the Administrative Hearings Office Act.
[22.600.3.6 NMAC - Rp.
22.600.3.6 NMAC, 8/25/2020]
22.600.3.7 DEFINITIONS: As used in
22.600.3 NMAC:
A. “Administrative
hearings office” is the agency established under Section 7-1B-1 NMSA 1978.
B. “Answer”
is TRD’s written statement in response to claims or defenses asserted by a
Taxpayer in opposition to any action subject to protest providing with
reasonable specificity the legal and factual bases for its position.
C. “Bona fide employee” means any
legitimate employee, owner, or member of any board of directors or other
governing body of a company, business, or otherwise recognized entity,
including trustees acting on behalf of a trust and personal representatives
acting on behalf of a decedent’s estate.
A bona fide employee is not a person hired for the limited purpose,
scope, or duration of representing a taxpayer before the administrative
hearings office during the protest proceeding.
D. “Chief
hearing officer” is the appointed head of the administrative hearings
office under the Administrative Hearings Office Act, Section 7-1B-3 NMSA 1978,
or the chief hearing officer’s designee during the absence of the chief hearing
officer, or the acting, interim chief hearing officer pending appointment of
that position.
E. “Enrolled
agent” means a federally licensed tax
practitioner with unlimited rights to represent taxpayers before the internal
revenue service.
F. “Hearing” is an on-the-record
proceeding before the hearing officer addressing the procedural, evidentiary,
or substantive issues of the protest. A
hearing includes a merits hearing, a scheduling hearing, or a motion’s hearing.
G. “Merits Hearing” is the formal, administrative hearing focused on the
adjudication of the disputed issues under protest.
H. “Scheduling Hearing” is a hearing
where the parties appear to discuss the issues involved in the protest, to
discuss the need for a discovery and motions practice before the merits
hearing, to discuss how much time the parties need to ensure compliance with
the statutory fair hearing requirements under Paragraph (2) of Subsection D of
Section 7-1B-6 NMSA 1978, and to select a merits hearing date and time. The scheduling hearing is part of the record
of the proceeding.
I. “Taxpayer” for the limited purposes of this rule is the generic
party name of the individual, person, entity association, business,
corporation, partnership or other recognized entity protesting against TRD in
the proceeding before the administrative hearings office. This definition shall not be construed in any
manner to change, clarify, or expound the statutory definition of taxpayer
contained under the Tax Administration Act.
J. “TRD” is the New Mexico taxation and revenue department.
[22.600.3.7 NMAC - Rp.
22.600.3.7 NMAC, 8/25/2020]
22.600.3.8 REQUESTS FOR HEARING, ANSWERS, SCHEDULING OF MERITS HEARINGS,
SCHEDULING HEARINGS, SCHEDULING ORDERS, AND PEREMPTORY EXCUSALS:
B. In
instances where TRD has not yet filed a hearing request, pursuant to Subsection
B of Section 7-1B-8 NMSA 1978, a taxpayer may but is not required to file a
request for hearing with the administrative hearings office on or after the 60th
day from the date on which TRD acknowledged its protest.
C. If
neither party has filed a request for hearing by 180 days from the
acknowledgement of a valid protest, a Taxpayer may request relief from interest
under Subsection E of 22.600.3.18 NMAC.
D. In
addition to other requirements of this section, a hearing request submitted by
TRD shall be accompanied by an answer to a taxpayer’s protest. If the taxpayer is the party requesting a
hearing, then TRD shall file and serve its answer to the protest within 30 days
of the filing of Taxpayer’s request for hearing.
E. An
answer shall state TRD’s response to a taxpayer’s protest, including the legal
and factual bases for TRD’s position plus other issues it perceives as relevant
or in dispute. Matters asserted in the
protest which TRD’s answer does not explicitly oppose or dispute with
reasonable specificity may be deemed admitted or conceded. An answer may be amended no less than 10 days
before a scheduled hearing on the merits of the protest, unless another
deadline is stated in the governing scheduling order. An amended answer, even if otherwise timely
filed, may still be disallowed if the hearing officer determines that the
lateness of the amendment unfairly prejudices the taxpayer. In evaluating the issue of prejudice, the
hearing officer shall consider whether any newly asserted facts, legal
conclusions, or other matters contained in the amended answer were known or
should have been known to TRD earlier.
Alleging new facts, legal conclusions, or other matters that were known
or should have been known earlier will weigh in favor of finding the amended
answer to be prejudicial.
F. Requests for hearing shall include
(if available) a copy of TRD’s initiating document (such as a notice of
assessment or denial of claim for refund or credit), action, or inaction that
led to the protest, a copy of the taxpayer’s protest letter, TRD’s acknowledgement
letter, any taxpayer information authorization filed with TRD allowing someone
other than the named taxpayer (or bona fide employee of the taxpayer) to
represent the taxpayer before TRD, the address of record of the taxpayer with
TRD, and TRD’s answer to the protest if TRD is the party requesting the
hearing. If the taxpayer submits the
request for hearing, it shall not be required to include TRD’s answer, but may do so if it is in the taxpayer’s
possession. The administrative hearings
office may require additional information on any request for hearing or
referral and may require the parties to submit such request
on a form developed by the administrative hearings office.
G. If
both parties submit timely hearing requests in reference to the same protest,
the request filed later in time shall be merged with the request filed earlier
in time, and the first-filed timely hearing request shall control the
establishment of pertinent deadlines.
H. The
party requesting the hearing shall specify whether they believe the matter will
be ripe for a merits hearing within 90-days of the request for hearing or
whether the parties need additional time to complete discovery, prepare
motions, and to ensure both sides have ample and fair opportunity to present
their respective cases. The chief
hearing officer shall give consideration to the
requests of either party for a scheduling hearing but is not bound to such
requests if in the view of the chief hearing officer after reviewing the record
and the docket, another hearing type is more appropriate to the case.
I. Upon receipt of the hearing
request, the chief hearing officer or designee thereof shall review the matter
to assess the complexity of the case, the potential discovery required, the
potential need for motions practice before conducting the merits hearing, the
tax hearing docket, and the preference of the party that filed the hearing
request to determine whether the matter should be set promptly for a merits
hearing or set for a scheduling hearing within 90 days of the date on which
TRD’s answer to the protest was filed.
J. Absent a timely objection before or
at the time of the scheduling hearing, conducting a scheduling hearing within
90 days of TRD’s answer was filed or within 120 days from the filing of
taxpayer’s request for hearing satisfies the under Subsection F of Section
7-1B-8 NMSA 1978 while allowing sufficient and meaningful time for completion
of the statutory requirements contained under Paragraph (2) of Subsection D of
Section 7-1B-6 NMSA 1978. Upon
completion of the scheduling hearing, the hearing officer will issue a
scheduling order and notice of administrative hearing or other form of notice
or order as the circumstances require.
K. Upon
objection to conducting a scheduling hearing, the administrative hearings
office may set the matter for a merits hearing on an expedited basis with a
minimum of seven days notice unless the parties
consent to a lesser period for notice.
All other notices will be sent at least 14 days before the scheduled
hearing unless the parties consent to a lesser period for notice.
L. Upon
receipt of the notice of scheduling hearing, the parties may consult with each
other and agree to a proposed scheduling order, in a format specified by the
administrative hearings office, articulating discovery and motions deadlines,
length of the potential hearing, a proposed month or months of merits hearing,
and an express waiver of the hearing deadlines under Subsection F of Section
7-1B-8 NMSA 1978. If the assigned
hearing officer accepts or substantially adopts the proposed scheduling order, the
scheduling hearing will be vacated.
M. At
the sole discretion of the chief hearing officer, a series of cases involving
similar substantive issues or involving small controversies may be scheduled to
be heard individually as part of a trailing docket commencing at the beginning
of the day, to be heard at some indefinite point during that day after the time
of commencement of the docket. If the
protest is to be heard as part of a trailing docket:
(1) All
parties and their representatives in a case set on a trailing docket shall
report at the time and place specified in the notice of hearing for
commencement of the trailing docket in a method and manner specified by the
administrative hearings office.
(2) Failure
to report at the commencement of a trailing docket shall be deemed a
non-appearance for the purposes of Section 7-1-16 NMSA 1978.
(3) After
the reporting time for the trailing docket, the assigned hearing officer or
hearing officers for the conduct of the trailing docket will determine the
order of the cases to be heard that day, considering the appearance or
nonappearance of the various parties on that day’s docket, the complexity of
the cases, the number and availability of witnesses, and if possible,
accommodating any scheduling conflicts of the parties on that date.
(4) Upon
receipt of notice of hearing set on a trailing docket, a party may file a
written objection at least seven days before the scheduled hearing citing good
cause as to why the matter should be given a unique setting rather than heard
as part of a trailing docket, which the chief hearing officer or the assigned
hearing officer may review and determine whether the case should be continued
to a specific date with a firm time of commencement of the proceeding.
N. All
notices of hearing, including notice of scheduling hearing, notice of
administrative hearing, and scheduling order shall be mailed via regular, first
class mail to the taxpayer’s address of record or the address of taxpayer’s
representative of record, as well as TRD either through interdepartmental mail
or first class mail. Additionally, if
the parties provide an email address on the protest letter, entry of
appearance, or other subsequent communication, a copy of the notice may be
emailed to the party. Notice may be
given orally on the record of any proceeding where all parties are present and all parties agree to the proposed hearing date.
[22.600.3.8 NMAC - Rp.
22.600.3.8 NMAC, 8/25/2020]
22.600.3.9 PEREMPTORY EXCUSAL OF PRESIDING HEARING OFFICER:
A. Hearing
officers shall be assigned to preside over protests as determined by the chief
hearing officer upon consideration of a hearing officer’s experience,
availability or other considerations bearing on the management of the
administrative docket. Notice of an
assignment shall be provided in the notice of the initial merits or scheduling
hearing set in response to the request for hearing. Unless otherwise stated in such notice, or in
a preceding notice of assignment, the hearing officer
assigned to the protest shall be identified by referring to the signature block
in the notice of the initial hearing.
B. Either
party may exercise its one-time right of peremptory excusal of the assigned
hearing officer within 10 days of the notice of hearing or other notice of
assignment, whichever is earlier in time, provided that the party seeking the
excusal has not previously sought a discretionary ruling of the hearing officer
to be excused. Upon a timely and proper
notice of excusal, the chief hearing officer shall reassign the protest and
provide notice to the parties.
C. In
the event both parties seek to excuse the same hearing officer in response to
the same notice, only the excusal submitted earlier in time shall be effective
and the party whose excusal was filed subsequent to the other shall retain its
right to excuse the next-assigned hearing officer provided its notice is filed
within 10 days of a notice of reassignment and it has not sought a
discretionary ruling of the hearing officer to be excused.
D. At
any time while a protest is pending, the chief hearing
officer may be required to reassign a case due to unforeseen circumstances,
docket management, or agency resource concerns.
Circumstances permitting, the chief hearing
officer will provide at least 14-day notice of a reassignment. A party that has not previously exercised its
peremptory right of excusal shall be permitted 10 days from such notice to excuse
the hearing officer provided that they have not sought
a discretionary ruling of that hearing officer.
E. A
notice of reassignment within 14 days of a scheduled hearing shall not be
grounds to necessarily continue the scheduled hearing. Continuance requests under such conditions
shall be considered based on the unique circumstances presented by the specific
protest.
F. For the purpose of this rule, the term “party” shall include
all members of a group of parties. In
identifying the group comprising a party, the administrative hearings office
may consider whether the parties are represented by the same law firm,
accounting firm, or other authorized representative; whether the parties filed
a joint protest or have filed joint pleadings; and whether the parties consist
of a business entity or other organization and its owners, parents,
subsidiaries officers, directors, or major
shareholders.
G. An
objection to the timeliness or validity of a peremptory excusal may be raised
by any party or by the administrative hearings office on its own motion. The chief hearing officer or the presiding
hearing officer may rule on the timeliness or validity of any such objection,
provided that an order prepared by and signed by the presiding hearing officer
shall also be concurrently signed by the chief hearing officer. If the hearing officer or chief hearing
officer determines that the excusal has met the applicable procedural and legal
requirements in this rule, the hearing officer shall proceed no further in the
protest. If the presiding hearing
officer or chief hearing officer determines that the excusal has not met the
applicable procedural and legal requirements in this rule, the hearing officer
may continue to preside over the protest.
[22.600.3.9 NMAC - N,
8/25/2020]
22.600.3.10 LOCATION
OF HEARINGS: Merits
hearings are held in Santa Fe. At the
sole discretion of the chief hearing officer, and considering the location of
the respective parties, their representatives, the assigned hearing officer,
the resources of the administrative hearings office, and the docket, a hearing
may be set at the administrative hearings office’s Albuquerque office. If setting a hearing at the Albuquerque
office would cause an unreasonable, undue burden to either party, the party may
file a written objection to the hearing location within 10 days of issuance of
the notice of hearing, articulating the reasons supporting the objection. The chief hearing officer or designee will
promptly review the objection and upon a showing of an unreasonable, undue
burden, will order the hearing to occur in Santa Fe. Such changes in hearing location may require
the reassignment of the case to another hearing officer as determined necessary
by the chief hearing officer.
[22.600.3.10 NMAC - Rp.
22.600.3.9 NMAC, 8/25/2020]
22.600.3.11 VIDEO-CONFERENCE
HEARINGS, TELEPHONIC HEARINGS, AND TELEPHONIC TESTIMONY:
A. Scheduling hearings
and other preliminary, preconference, motions, or prehearing motions hearings
may be conducted via telephone, or videoconference or equivalent electronic
method without consent or waiver of either party.
B. If both TRD and the taxpayer agree,
they may petition the assigned hearing officer at least seven days before the
scheduled merits hearing to conduct the merits hearing via secure
videoconference pursuant to Subsection H of Section 7-1B-8 NMSA 1978. The hearing officer may grant or deny the
request after considering whether a complete and accurate record can be made and a fair hearing can be conducted in the matter via
secure videoconference. Even if the
initial request is granted, the hearing officer always retains the discretion
at any point in the proceeding to order the personal appearance of the parties
and witnesses if in the hearing officer’s determination resolution of the
disputed facts, evidence, credibility of a witness, question of law, or
development of a complete and accurate record requires it.
C. The administrative hearings office may also schedule a merits hearing
as a videoconference hearing with consent of the
parties, which shall be deemed to have been granted absent either party filing
a written objection within 14 days of notice a videoconference merits hearing.
D. If a hearing is
scheduled to be conducted via videoconference:
(1) all
parties, witnesses, and the hearing officer will appear via videoconference
service specified by the administrative hearings office. The administrative hearings office shall take
reasonable precautions to ensure that the videoconference is secure and
confidential. However, by requesting or
consenting to a videoconference hearing, the parties
shall be deemed to understand that the administrative hearings office may
contract, license or utilize a third-party service provider to facilitate
videoconferencing and that all electronic communications are vulnerable to
security breaches beyond the reasonable control or knowledge of the
administrative hearings office. If such
electronic security breaches were to occur, they constitute unintentional,
inadvertent disclosures and do not amount to a breach of statutory confidentiality
requirements under relevant law by any party or the hearing officer appearing
via videoconference. The parties shall
also waive any claims against the administrative hearings office, its
employees, agents or contractors, arising from any disclosure and shall be
deemed to have assumed risk of disclosure by requesting or agreeing to appear
via videoconference;
(2) the
parties shall ensure that they have exchanged all exhibits with each other and
provided the assigned hearing officer with an exhibit binder before
commencement of the approved videoconference hearing;
(3) the
parties also shall provide contact phone numbers where
they will be available at the time of the hearing in case there are technical
errors or other issues with conducting the videoconference;
(4) in the event that technical or other computer problems prevent the
videoconference hearing from occurring or interfere with maintaining or
developing a complete record at the hearing, the parties agree and consent upon
their submission of a request to conduct the matter via videoconference that
the assigned hearing officer at their discretion may continue the matter to a
different time without regard to any other statutory deadline, may order the
parties to appear for an in-person hearing, or may conduct the hearing via
telephone;
(5) in the
event of a videoconference hearing, the hearing record
will only be the audio recording or transcription of the proceeding and will
not include the video portion of the proceeding.
E. Telephonic
appearances by the parties, (or their representatives) at a merits
hearing are not generally permitted and will only be considered in the
event of a genuine medical emergency/hardship, in cases where there is no
genuine dispute of fact and parties intend to simply make legal argument, or
when a technical problem prevents the conduct of a scheduled videoconference
hearing.
F. Telephonic testimony from
third-party witnesses may only be permitted in the event that
in person or videoconference testimony would create an undue hardship or
expense to the third-party witness. In
addition to potential undue hardship, the assigned hearing officer in deciding
whether to permit the telephonic testimony will consider the nature and purpose
of the purported testimony, potential credibility issues regarding the
testimony, the potential weight of the testimony as it relates to the particular issues at protest, and whether the testimony is
being offered in rebuttal.
[22.600.3.11 NMAC - Rp.
22.600.3.10 NMAC, 8/25/2020]
22.600.3.12 APPEARANCES
BY AUTHORIZED REPRESENTATIVES:
A. Taxpayers
may appear at a hearing for themselves or may be represented by any person
expressly authorized under the Tax Administration Act or the Administrative
Hearings Office Act to represent a taxpayer before the administrative hearings
office. Unless otherwise changed,
amended or repealed, Subsection H of Section 7-1B-8 NMSA 1978 expressly
authorizes a taxpayer to represent themselves, or be represented by a bona fide
employee, an attorney, a certified public accountant, an expressly authorized
employee of a New Mexico licensed certified public accounting firm, or an
enrolled agent. When the taxpayer is two individuals who have been jointly
assessed, such as a married couple who filed a joint personal income tax
return, either individual may serve as the taxpayer’s representative.
B. Any
attorney representing a taxpayer before the administrative hearings office
shall file an entry of appearance in the matter. If the attorney has prepared the protest
letter on behalf of the taxpayer, the protest letter signed by the attorney
constitutes a valid entry of appearance unless otherwise expressly limited by
the taxpayer or the attorney. An
attorney’s entry of appearance constitutes a written authorization for representation
of a taxpayer without need for the specific, separate, signed taxpayer
authorization specified in Subsection C.
Any attorney, including those employed as in-house counsel, representing
taxpayers in the filing of any motion, conduct of motions hearing, or conduct
of a merits hearing must be licensed in good standing to practice law in New
Mexico or in compliance with the pro hac vice requirements found under Rule
24-106 NMRA.
C. If
a taxpayer intends to be represented by the authorized employee of a New Mexico
licensed certified public accounting firm, then that firm shall provide a
written authorization permitting its employee to act in a representative
capacity for the taxpayer, on behalf of the firm. The authorization shall be executed by an
individual having supervisory responsibility over the designated employee and
authority to bind the New Mexico licensed certified public accounting firm in
contract.
D. Except
as otherwise provided, a taxpayer shall file a signed, written authorization
with the administrative hearings office designating any person, except an attorney,
expressly authorized under the Tax Administration Act or the administrative
hearings office to represent the taxpayer in a specific protest
proceeding. When the taxpayer is an
entity, the signature of any bona fide employee of the taxpayer shall be deemed
to be the taxpayer’s signature. The
written authorization need not be a specific or technical form,
but may be included as a statement in the protest designating an
authorized representative, on a taxpayer information authorization form filed with
TRD, or as a statement in a subsequent pleading filed with the administrative
hearings office.
E. All
written authorizations or entries of appearance should include the name,
mailing address, phone number, and electronic mail address of the authorized
representative. The taxpayer and any
representative who has entered an appearance or written authorization to appear
has an ongoing duty to inform the administrative hearings office and the
opposing party of any change of mailing address, contact phone number, or
contact email address.
F. After a written authorization or
entry of appearance has been filed in a case, a change in a taxpayer’s
representation requires a new, signed written authorization from the taxpayer,
an entry of appearance from an attorney if no attorney has previously represented
the taxpayer, or a substitution of counsel and new entry of appearance in the event that a taxpayer has engaged a different
attorney to represent the taxpayer in the protest.
G. Any
person designated by the taxpayer in the protest letter,
through a written authorization or entry of appearance shall be deemed to be an
authorized representative of the taxpayer for the purposes of conducting the
scheduling hearing(s) before the administrative hearings office. At the scheduling hearing, the taxpayer and
their representative (if any) will be advised of the statutory right to and
limitations of representation during the hearing process.
H. After the scheduling hearing and advisement of the
statutory right to and limitations of representation during the hearing
process, if the taxpayer’s representative is not a person who is expressly
authorized to represent the taxpayer before the administrative hearings office
under the Tax Administration Act or the Administrative Hearings Office Act,
that person may not serve as a representative of the taxpayer in the proceeding
before the administrative hearings office.
In that event, the taxpayer may be granted an additional opportunity
before conduct of the hearing to arrange for
appropriate representation. Any delay in
the hearing process for this reason will be attributed to the taxpayer.
I. All
parties shall have a responsibility of candor to the administrative hearings
office and shall not knowingly make false statements to the hearing
officer. The administrative hearings
office is a tribunal for purposes of Rule 16-303 NMRA. An attorney, a certified public accountant,
the authorized employee of a New Mexico certified public accountant, an
enrolled agent, or any other statutorily permitted representative of a taxpayer
in a protest hearing shall abide by their respective controlling professional
or ethical standards of conduct at all stages of the administrative proceeding
before the administrative hearings office.
In the event of an apparent breach of applicable standards of conduct,
ethics or professionalism, in addition to reporting the breach to the
appropriate disciplinary board, the assigned hearing officer may take other
reasonable and appropriate measures within the hearing officer’s statutory and
regulatory authority necessary to maintain order and ensure a fair hearing
process for all parties, up to and including disqualification.
[22.600.3.12 NMAC - Rp.
22.600.3.11 NMAC, 8/25/2020]
22.600.3.13 TAX
PROTEST HEARINGS CLOSED TO PUBLIC, FILE IS CONFIDENTIAL, AND SEALING
OF RECORDS IN THE PROCEEDING:
A. Hearings are not open to the public
except upon request of the taxpayer.
B. Pursuant
to Section 7-1-8.3 NMSA 1978, all documents, exhibits, pleadings and materials
contained in the administrative tax file and the record of the administrative
hearing are confidential and may not be released to the public, except that the
final decision and order without redaction and any evidentiary or procedural
ruling made by the hearing officer with redaction of identifiable taxpayer
information may be revealed.
C. Either party may ask for, and
submit, a proposed order sealing particular
records, documents, or exhibits that may contain confidential
third-party taxpayer information or as is required by relevant internal revenue
service information sharing agreements or other applicable federal law. Upon issuance of an order sealing such
documents of exhibits, those records will remain under seal throughout the proceeding and shall be returned to the submitting party at
the conclusion of the appeal period or the appeal. The opposing party shall be entitled to
promptly review those documents in preparing for the hearing,
and may rely on those documents during the hearing as necessary to
ensure a fair hearing process, but shall not maintain its own copy of the
sealed document after conclusion of the hearing nor reveal, discuss, or
disclose the contents of those sealed documents to any other party outside of
the hearing process.
D. In the event of an appeal, the
complete record of the proceeding, including any sealed records, will be
provided to the relevant judicial body, as required under Section 7-1-8.4 NMSA
1978.
E. The hearing officer’s notes taken during the course of the hearing, any written discussions
with another hearing officer related to the deliberative process, and any draft
orders or draft decisions are confidential as part of the deliberative process
and are not subject to public disclosure under any recognized exception
contained under Section 7-1-8.3 NMSA 1978.
Only the hearing officer’s final decision and order and other final
procedural or evidentiary orders (with appropriate taxpayer information
redacted) may be revealed to the public under Section 7-1-8.3 NMSA 1978.
[22.600.3.13 NMAC - Rp.
22.600.3.12 NMAC, 8/25/2020]
22.600.3.14 WITHDRAWAL
OF PROTESTS:
A. A taxpayer electing to withdraw a
protest pending before the administrative hearings office shall execute a
written withdrawal of protest. The
written withdrawal must include the taxpayer’s signature or the signature of a
bona fide employee of the taxpayer, even when the taxpayer has an authorized
representative. The written withdrawal
need not include the taxpayer’s reasons for withdrawing the protest. The written withdrawal must include adequate
information to properly identify the taxpayer and the file at
protest, such as the administrative hearings office’s case number, TRD’s
assessment letter i.d. number or the date the protest
was filed. A written withdrawal form
provided and approved by TRD is sufficient to adequately identify the taxpayer
and the protest.
B. A properly executed withdrawal
of protest satisfying the requirements of this section shall result in the
issuance of an order closing of the protest, the administrative file, and
vacating any scheduled hearings in the matter.
The withdrawal shall be deemed conclusive and dispositive as to all
issues that were raised, or could have been raised, in the protest.
C. Upon
receipt of a withdrawal of protest which does not satisfy the requirement
stated herein, which appears irregular on its face, which fails to adequately
address all issues pending in a protest, or which is indefinite, uncertain, or
ambiguous, the hearing officer may require the parties to address the
deficiencies, may reject the withdrawal as inadequate, may leave the matter on
the calendar as scheduled, may set a status conference to address the issues
with the withdrawal, or may order the parties to submit a new withdrawal, if
they are able to, addressing the deficiencies.
The hearing officer may also choose to accept an inadequate withdrawal
as is, noting the deficiency for the record and giving
the parties a period of time to correct the
deficiencies or make any objections in light of the identified deficiencies
before the withdrawal is adopted as conclusive in the matter.
[22.600.3.14 NMAC - Rp.
22.600.3.13 NMAC, 8/25/2020]
22.600.3.15 SUMMARY
DISPOSITIONS OF PROTESTS: Where there is well-settled law addressing the issue
identified on the face of the pleadings, or when it appears from the face of
the pleadings in the administrative file that there is no genuine issue as to
any material fact, the hearing officer may propose a summary disposition of the
protest under the following procedure:
A. the hearing officer
shall provide to the parties, their attorneys, or authorized representatives a written proposed summary disposition based on a review of
the administrative file;
B. the
parties, their attorneys, or authorized representatives shall be provided with
no less than 15 days in which to respond to the proposed summary disposition;
C. a
response to a proposed summary disposition shall include the factual or legal
basis in support of or in opposition to the proposed summary disposition;
D. no
reply to a response shall be allowed;
E. the
failure to respond to a proposed summary disposition may be deemed as
concurrence in the proposed summary disposition;
F. upon review of the responses to a
proposed summary disposition, the hearing officer shall withdraw the proposed
summary disposition and schedule the matter to be heard if either party makes a
bona fide objection and argument, or enter a decision
and order consistent with the proposed summary disposition if the parties
consent, concede, fail to object or otherwise fail to meaningfully address the
proposed summary disposition.
[22.600.3.15 NMAC - Rp. 22.600.3.14
NMAC, 8/25/2020]
22.600.3.16 FILING
METHODS AND MOTIONS:
A. All
pleadings may be filed with the administrative hearings office through mail,
facsimile, or electronic mail as specified in the relevant notice of hearing,
with a copy of such pleading contemporaneously provided to the opposing party
through the same method of service of the filing. The moving party should include an
attestation, or equivalent statement or information, that they provided a copy
of the pleading to the opposing party.
B. A
filing by facsimile shall include a cover sheet indicating the name of the
matter, the name of the individual submitting the filing, the number of pages
contained in the transmission, and a telephone number to contact in the event
there are any errors with the transmission.
C. Documents
filed by email or other electronic means shall not be submitted in an editable
format unless specifically requested by the hearing officer. Absent specific instructions to do so,
pleadings, motions or other papers shall not be submitted directly to the
assigned hearing officer.
D. All
motions, except motions made on the record during the hearing or a continuance
request made in a genuine unforeseen emergency circumstance (such as an
unexpected accident, force majeure, or major medical emergency occurring in
such close proximity to the date of the scheduled
hearing that a written motion could not be completed), shall be in writing and shall state with particularity the grounds and the
relief sought.
E. Before submission of any motion,
request for relief, or request for continuance, the requesting party should
make reasonable efforts to consult with the opposing party about that party’s
position on the motion unless the nature of the pleading is such that it can be
reasonably assumed the opposing party would oppose the requested relief. The party shall state the position of the
opposing party in the pleading.
F. A
party moving to obtain an order compelling discovery shall explicitly confirm
that the parties have made a good faith effort to
resolve the issue prior to filing the motion to compel. A motion failing to explicitly confirm such effort may be summarily denied.
G. An
unopposed motion may be accompanied by a stipulated order indicating approval
by the parties, attorneys, or authorized representatives. Approval may be indicated by an original,
photocopy, facsimile, or electronic signature of the individual providing
approval, or by a statement indicating approval by other means such as by
email. The hearing officer retains the
authority to deny the relief requested in an unopposed or stipulated motion and
may adopt, modify, or reject any stipulated order accompanying an unopposed
motion.
H. Unless
a different deadline applies under an applicable order of the assigned hearing
officer, the opposing party has 14 calendar days to file a written response to
a pleading. If any deadline falls on a
Saturday, Sunday, or state-recognized holiday, the deadline falls on the next
business day. The assigned hearing
officer may require a shorter response deadline, especially for time-sensitive
or basic motions like continuance requests.
Failure to file a response in opposition may be presumed to be consent
to the relief sought, although the hearing officer is not required to make such
a default ruling on the motion if the relief would be contrary to the hearing
officer’s view of the facts or law on the issues. The moving party shall file a notice that the
matter is ripe for ruling upon receipt of the opposing party’s response or in the event that the opposing party has not filed a timely
response upon expiration of the response period.
I. Unless otherwise provided in a scheduling order,
dispositive motions shall be filed no less than 75 days preceding a hearing on
the merits of a protest and shall specify whether the moving party seeks to
convert the scheduling hearing to a hearing on the motion. Dispositive motions shall be ruled upon no
less than 30 days prior to a merits hearing. The chief hearing officer or the presiding
hearing officer retains discretion, subject to objections from the parties, to
continue or vacate a merits hearing pending a ruling on a dispositive motion if
in the hearing officer’s opinion, thorough consideration and preparation of a
proper written ruling might cause the ruling to be rendered less than 30 days
prior to a scheduled hearing.
J. A party attaching one or more
exhibits to a pleading, motion, or other paper shall designate the exhibit in a
manner to specifically associate it with the pleading, motion, or other paper
which it is intended to accompany. An
appropriate designation for an exhibit to a motion will include an abbreviation
for the type of motion, and an identifying letter for TRD or a number for the
taxpayer. For example
only, an exhibit to a motion for summary judgment presented by a taxpayer may
be designated as “Taxpayer MSJ #1”. An exhibit to a response to the motion
filed by TRD may be designated as “Dept. Resp. MSJ A”.
K. Absent
express permission of the assigned hearing officer with good cause shown, no
pleading, including motions and attached memorandums of support, filed in a
hearing involving the tax administration act or property tax code shall exceed
20 pages, not including the certificate of service, of double-spaced (except
for block quotations), 12-point font.
[22.600.3.16 NMAC - Rp.
22.600.3.15 NMAC, 8/25/2020]
22.600.3.17 DISCOVERY: New Mexico is a liberal discovery state and
to that end the parties are expected to cooperate in good faith to accomplish
adequate discovery by the time the formal hearing is held without a specific
order or intervention of the hearing officer.
Discovery need not be a formal, time-consuming, litigious, or burdensome
process; instead, the parties should make a good-faith effort to achieve
discovery through informal consultation, discussion, stipulations, and
good-faith, efficient exchange of relevant materials. If adequate discovery is not achieved
informally within a reasonable time prior to the time a formal hearing is
scheduled or by the deadline contained in a scheduling order issued by the
hearing officer, any party may apply to the hearing officer for an order
requiring a more formalized discovery process, including requiring depositions,
production of records or answers to interrogatories/requests for
admissions. The parties shall file only
certificates of service regarding discovery requests and productions unless the
hearing officer requires otherwise, such as when there is a motion to
compel. Depositions may be taken orally
or by written interrogatories and cross-interrogatories. Unless ordered otherwise by the hearing
officer, responses to interrogatories, requests for production of documents and
requests for admission shall be due thirty days after service on a party. Unless
ordered otherwise by the hearing officer, any notice of deposition shall be
served on all opposing parties at least 14 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.
[22.600.3.17 NMAC - Rp.
22.600.3.16 NMAC, 8/25/2020]
22.600.3.18 CONSEQUENCES
OF FAILURE TO COMPLY WITH ORDERS AND STATUTORY DEADLINES:
A. If a party or an officer or agent of
a party fails to comply with an order of the hearing officer, 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) issue
an order to show cause;
(3) 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;
(4) 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;
(5) 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;
(6) disregard
the content of any document filed after the deadline for filing said document
has passed;
(7) disregard
the content of any document filed after the merits hearing has been conducted,
unless the hearing officer has granted permission to file such document; or
(8) 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 remedy the failure to
comply with the order or withheld testimony, documents or other evidence.
C. The
failure to comply in good faith with the orders of the hearing officer may be
taken into consideration regarding the reasonableness of administrative costs
or the reasonableness of a party’s position when there is a motion for costs
and fees under Section 7-1-29.1 NMSA 1978.
D. In the event a third-party refuses
to comply with a valid subpoena, the hearing officer may allow the party who
requested the subpoena to make a proffer of evidence that the party believes
would have been obtained had the third-party complied with the subpoena. The opposing party shall have the opportunity
to refute the proffer, including by making a proffer of its own as to what it
believes would have been shown if the third-party complied with the subpoena. The hearing officer may give the proffers whatever
weight she/he deems reasonable in light of all of the
evidence presented and with due consideration of the statutory presumption of
correctness.
E. Upon motion
of the taxpayer or upon its own initiative, the administrative hearings office
may evaluate whether TRD satisfied the applicable statutory requirements and
deadlines for acknowledging a valid protest, for providing notice and an
opportunity to correct an invalid protest, for conducting an informal
conference, for requesting a hearing on the protest or in filing a timely and
adequate answer consistent with Subsection E of Section 7-1B-8 NMSA 1978, as
amended. Except upon good cause shown,
finding that TRD failed to comply with applicable statutory requirements and
deadlines may cause the accrual of interest on the protested liability to be
suspended from the day after the date on which TRD should have, but did not
act, or from another date considering the unique circumstances at issue in the
protest.
[22.600.3.18 NMAC - Rp.
22.600.3.17 NMAC, 8/25/2020]
22.600.3.19 PREHEARING
CONFERENCES, STATUS CONFERENCES, AND STATUS CHECKS:
A. The
hearing officer may direct the parties or their representatives to meet together or with the hearing officer present for a
prehearing conference to consider any or all of the following:
(1) simplify,
clarify, narrow or resolve the pending 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 of 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 conducted by
the hearing officer will be recorded.
C. The hearing officer may enter in the
record an order that recites the results of the conference conducted by the
hearing officer. 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.
D. The hearing officer may require the
parties to submit a written report of any conference ordered to be conducted
between the parties updating the status of the
proceeding in light of the conference.
E. The hearing officer may conduct a
status conference upon the request of either party or on the hearing officer’s
own initiative, at which time the hearing officer may require the parties,
attorneys, or authorized representatives, to provide information regarding the
status of a protest in order that the administrative hearings office may
arrange its docket to expedite the disposition of cases.
F. As part of basic docket management
and to ensure efficient use of staff resources, the chief hearing officer, or a
designee of the chief hearing officer other than the assigned hearing officer
on the case, at any point in the proceeding may contact the parties and inquire
about the status of any scheduled or pending case or cases.
[22.600.3.19 NMAC - Rp.
22.600.3.18 NMAC, 8/25/2020]
22.600.3.20 SUBPOENAS: Any request
for issuance of subpoenas in matters before the administrative hearings office
shall be guided by Rule 45 of the rules of civil procedure for the district
courts of New Mexico, except where provisions of that rule conflict with the
limited powers of the administrative hearings office. Any subpoena issued shall be in the name of
the chief hearing officer of the administrative hearings office. The party requesting the subpoena shall
prepare a proposed subpoena using a form approved by the administrative
hearings office, submit the proposed subpoena to the administrative hearings
office for approval and to the opposing party, and to timely and reasonably
serve the subpoena on the person or entity subject to the subpoena. Unless good cause is shown for a shorter
period, a subpoena shall provide at least 10 day notice before compelled
attendance at a hearing or deposition, and at least 10 day notice before
compelled production of materials. All
returns or certificates of service on served subpoenas shall be filed with the
administrative hearings office, copied to the opposing party, and shall be made
part of the record of the proceeding.
[22.600.3.20 NMAC - Rp.
22.600.3.19 NMAC, 8/25/2020
22.600.3.21 REQUESTS
FOR CONTINUANCES:
A. Either
party may request that a scheduled hearing be continued until a different date and time by filing a written request for continuance. The request for continuance should include a
description of the reason why the requesting party would like the matter
rescheduled, the opposing party’s position on the request unless the opposing
party does not respond after reasonable efforts were made to contact them, how
much additional time the moving party seeks before the matter is rescheduled,
and any dates where the parties are unavailable for rescheduling the matter.
B. The
hearing officer will generally only consider requests for a
continuance made in writing at least seven days before the scheduled
hearing and supported by good cause, absent extraordinary, unforeseen
circumstances which the requesting party could not have known earlier than
seven days before the hearing. Within
seven days of the scheduled hearing, the hearing officer may reject a
continuance request even if the opposing party has stipulated or does not
oppose the request. Unless and until the
parties are affirmatively informed by order or other communication of an
administrative hearings office employee that the continuance request has been
granted, the scheduled hearing remains on the calendar and the parties must
appear at the hearing. Failure to appear
at the scheduled time of the hearing shall be deemed a non-appearance
for the purposes of Section 7-1-16 NMSA 1978.
C. As part of the continuance request, the moving party
must waive the 90-day hearing requirement.
In the absence of such express waiver, as a
condition of granting the request, the hearing officer may deem that the 90-day
hearing requirement was met and attribute any delay in the conduct of the
hearing to the moving party.
D. The
assigned hearing officer and the chief hearing officer or designee
may continue or reschedule a scheduled hearing, or reassign a scheduled hearing
to another hearing officer, as necessary to manage the tax docket and state
resources in an efficient manner and account for changes in office staffing.
[22.600.3.21 NMAC - Rp.
22.600.3.20 NMAC, 8/25/2020]
22.600.3.22 FAILURE
TO APPEAR:
A. A taxpayer’s failure
to appear at the scheduled time of the noticed protest
hearing shall be deemed a non-appearance for the purposes of Section
7-1-16 NMSA 1978.
B. If a
taxpayer has appeared but a representative of TRD fails to appear at a noticed hearing, the hearing officer may issue an order to
show cause as to why the protest shall not be granted, may allow the taxpayer
to present their case in the absence of TRD’s representative and rule upon the
protest, or take other appropriate actions within the hearing officer’s power.
C. In
considering the non-appearance and whether the person received appropriate
notice, the hearing officer may consider the contents of the administrative
file, information conveyed to or known by administrative hearings office staff,
information related to mailing, including mail tracking, returned receipt
information, and notes written on returned envelopes of the United States
postal service or other mail tracking services, and arguments offered by the
present party, all of which shall be addressed on the record of the hearing or
in any subsequent order.
D. Oral
rulings based on failure to appear are not final until reduced to writing. Such rulings may be changed in the written
order as new information arises after the hearing related
to whether the notice of hearing was properly sent to the correct address or
otherwise properly served.
[22.600.3.22 NMAC - Rp.
22.600.3.21 NMAC, 8/25/2020]
22.600.3.23 HEARING
OFFICER POWERS AND RESPONSIBILITIES:
A. Hearings in adjudicative proceedings
shall be presided over by a hearing officer designated by the chief hearing
officer of the administrative hearings office.
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 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 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;
(12) to make and issue decisions and orders;
and
(13) to
reprimand, or, with warning in extreme instances exclude from the hearing, any
person for engaging in a continuing pattern of indecorous, obstinate,
recalcitrant, obstreperous, unethical, unprofessional or improper conduct that
interferes with the conduct of a fair and orderly hearing or development of a
complete record.
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 taxation
and revenue department or the department of finance and administration.
D. In the performance of these
adjudicative functions, the hearing officer is prohibited from engaging in any
improper ex parte communications about the substantive issues with any party on any matter, as
addressed in regulation 22.600.2.16 NMAC.
An improper ex parte communication occurs when
the hearing officer discusses the substance of a case without the opposing
party being present, except that it is not an improper ex parte
communication for the hearing officer to go on the record with only one party
when the other party has failed to appear at a scheduled hearing.
[22.600.3.23 NMAC - Rp.
22.600.3.22 NMAC, 8/25/2020]
22.600.3.24 EVIDENCE
AT HEARING:
A. Every
party shall have the right of notice, cross-examination, presentation of evidence,
objection, motion, argument and all other rights essential to a fair hearing.
B. The
taxpayer shall have the burden of proof, except as otherwise provided by
law. Because the taxpayer must overcome
the presumption of correctness or otherwise establish entitlement to the claim
or relief sought during the protest, the taxpayer will ordinarily present their
case first, followed by TRD, except as otherwise provided by law or as
otherwise ordered by the hearing officer for good cause. The party with the
burden in the case shall have an opportunity to make a final rebuttal argument
at the hearing. However, in the event
closing argument is submitted after the hearing in writing, the hearing officer
may require that each side submit simultaneous written closing arguments in the
matter without an opportunity for rebuttal argument.
C. The
New Mexico rules of evidence and New Mexico rules of civil procedure shall not
apply in any matter before the administrative hearings office unless otherwise
expressly and specifically prescribed by statute, regulation, or order of the
hearing officer. Relevant
and material evidence shall be admissible. Irrelevant, immaterial, unreliable, or unduly
repetitious evidence may be excluded.
Immaterial or irrelevant portions of an otherwise admissible document
shall be segregated or redacted and excluded so far as is practicable. The hearing officer shall consider and give
appropriate weight to all relevant and material evidence admitted in rendering
a final decision on the merits of a matter.
D. Reliable hearsay evidence is
admissible during the protest proceeding.
E. 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.
F. 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 the admissibility of
basic documents concerning the controversy, such as audit reports of TRD,
assessments issued by TRD, returns and payments filed by taxpayer,
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.
G. The hearing officer may take
administrative notice of facts not subject to reasonable dispute
that are generally known within the community, capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably
disputed, or as provided by an applicable statute. Administrative notice may be taken at any
stage in the proceeding whether or not requested by
the parties. A party is entitled to
respond as to the propriety of taking administrative notice which shall include
the opportunity to refute a noticed fact.
H. Parties objecting to evidence shall
timely and briefly state the grounds for the objection. Rulings on evidentiary objections may be
addressed on the record at the time of the objection, or reserved for ruling in a subsequent written
order.
I. Formal exception to an adverse
ruling is not required.
J. When an
objection to admission of an exhibit or to a question propounded to a witness
is sustained, the proponent may make a specific offer of what the
representative expects to prove by introduction of the exhibit or 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, may be retained in the record so as to be available for consideration by any reviewing
authority.
K. In general, documentary evidence
should be no larger than 8.5 inches by 11 inches unless expressly allowed by
the hearing officer. The hearing officer
may admit a documentary exhibit presented at hearing which exceeds 8.5 inches
by 11 inches or which cannot be folded, provided the
proponent of such exhibit provide the administrative hearings office a copy of
the exhibit reduced to 8.5 inches by 11 inches.
After the hearing at which the exhibit was admitted, the reduced copy
shall be substituted for the larger exhibit and made part of the record of the
hearing. The administrative hearings
office may permit the proponent of a large exhibit to make
arrangements to obtain a reduced copy, provided that a failure by the
proponent to provide a reduced copy shall be construed as a withdrawal of the
exhibit. For the purposes
of maintaining an adequate record for submission to the Court of Appeals upon
an appeal of either party, the hearing officer may request or require the
submission of electronic copies of all tendered exhibits either in addition to
or in lieu of the physical copies of tendered exhibits.
L. Objects introduced as exhibits shall
be returned to the proponent at the conclusion of the hearing unless otherwise
ordered by the hearing officer. In lieu
of the object itself, the hearing officer may require the moving party to
submit a photograph, video, or other appropriate substitute such as verbal
description of the pertinent characteristics of the object for the record. If an object is retained for the record, it
may be returned to the proponent no less than 45 days after a final decision
and order is rendered on the merits of a protest provided that a party has not
filed a notice of appeal.
[22.600.3.24 NMAC - Rp.
22.600.3.23 NMAC, 8/25/2020]
22.600.3.25 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 in writing at least seven days before the
scheduled hearing. Unless otherwise
ordered by the hearing officer, the party requesting recording by an alternate
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. In the event of a videoconference hearing, only the audio portion of the
recording shall be maintained as part of the record.
[22.600.3.25 NMAC - Rp.
22.600.3.24 NMAC, 8/25/2020]
22.600.3.26 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 allow any
party to 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. The hearing
officer may adopt the proposed findings in part, in whole,
or may make his or her own findings. The
period for preparing the final decision and order shall not commence until
after the final pleadings, including any ordered briefings, findings of fact,
or conclusions of law, are filed.
[22.600.3.26 NMAC - Rp.
22.600.3.25 NMAC, 8/25/2020]
22.600.3.27 DATE
OF MAILING OR DELIVERY:
A. Use
of the phrase “date of mailing or delivery” in Section 7-1-25A NMSA 1978
authorizes the administrative hearings office to choose between mailing and
hand-delivering the written decision and order of the hearing officer.
B. “Date
of mailing” means the time that the hearing officer's decision and order
enclosed in properly addressed envelope or wrapper was postmarked by the U.S.
postal service. “Delivery” means time of
hand delivery of the written decision and order to the party’s business
residence.
[22.600.3.27 NMAC - Rp.
22.600.3.26 NMAC, 8/25/2020]
22.600.3.28 REASONABLE ADMINISTRATIVE COSTS,
LITIGATION COSTS AND ATTORNEY FEES:
A. At
any time after the evidentiary record has closed in reference to the merits of
a protest, the presiding hearing officer may request additional information
from the parties relevant to determining whether the taxpayer should be awarded
reasonable administrative costs, litigation costs and
attorney fees pursuant to Section 7-1-29.1 NMSA 1978. The hearing officer may make such request
regardless of whether the administrative record contains an explicit prior
request for fees and costs. For the purpose of this subsection, additional information
may include legal briefing, affidavits, documents, or live testimony or legal
argument limited to the issue of whether a taxpayer should be considered a
prevailing party, whether TRD’s position in the proceeding was based upon a
reasonable application of the law to the facts of the case, or for determining
the reasonableness of a potential award.
B. In
circumstances where the issue of reasonable administrative costs, litigation
costs and attorney fees remains outstanding after the
parties have resolved, compromised, or conceded all other disputed issues in
the protest, taxpayer shall by motion or other written
communication, notify TRD and the administrative hearings office that it is
seeking a determination on that issue prior to withdrawing its protest. A request for an award of reasonable
administrative costs, litigation costs and attorney fees will not be considered
subsequent to the withdrawal of the protest in which
the taxpayer alleges the fees and costs were incurred. In any manner where a request for hearing
before the administrative hearings office has been filed by either party, the
jurisdiction of the administrative hearings office to consider reasonable
administrative costs, litigation costs and attorney fees shall not be
extinguished by the full abatement of an assessment, full allowance of a refund
or credit, or other concession which if not for the issue of fees and costs,
would resolve the protest in favor of the taxpayer without the need for a
hearing.
[22.600.3.28 NMAC - N,
8/25/2020]
22.600.3.29 RECONSIDERATIONS:
A. A party may file a motion for reconsideration no more than seven
calendar days after the date on the final decision and order. The opposing party may file a response no
more than seven calendar days after the motion for reconsideration was
filed. Motions for reconsideration that
are not filed within this deadline may be denied automatically.
B. The
prevailing party shall not file a motion for reconsideration. However, if a requested action is granted in
part and denied in part, either party may file a motion for reconsideration.
C. Motions for reconsideration shall
not endeavor to present new evidence previously available, or discoverable
through reasonable diligence, to the parties before the hearing. Motions for reconsideration shall not reargue
the weight of evidence already ruled upon and shall not reiterate legal
arguments already ruled upon. However, a
motion for reconsideration may address gross factual or legal errors/omissions
in the final decision and order.
D. An order shall be
issued within seven calendar days of the response deadline or the motion to
reconsider shall be deemed denied.
E. The parties should not
presume that the filing of a motion for reconsideration will extend the
deadline to appeal a decision and order under the Tax Administration Act, even
if reconsideration is sought within the specified deadlines.
[22.600.3.29 NMAC - N
8/25/2020]
22.600.3.30 APPEALS:
A. Appeals
of a final tax decision and order of the administrative hearings office are
taken by filing a timely notice of appeal directly with the New Mexico court of
appeals in accord with the New Mexico rules of appellate procedure. Writing or otherwise communicating to the
administrative hearings office a general intent to
appeal a final decision is insufficient to perfect an appeal of the case.
B. Upon
filing the required docketing statement with the New Mexico court of appeals,
the appellant shall serve a copy of the docketing statement with the
administrative hearings office. The
administrative hearings office will then prepare and file the record proper
with the New Mexico court of appeals in accord with the New Mexico rules of
appellate procedure, providing a copy to the appellant and the other party.
C. The
administrative hearings office, as the adjudicative body, is not a party to the
appeal and all requests for positions related to motions in the appeal should
be addressed to the opposing party or where
appropriate, to the relevant appellate court.
[22.600.3.30 NMAC - Rp
22.60.3.27 NMAC, 8/25/2020]
HISTORY of 22.600.3 NMAC: [RESERVED]
History of Repealed Material:
22.600.3 NMAC, Hearings Under
The Tax Administrative Act, filed 1/17/2018 - Repealed 8/25/2020.
Other History:
22.600.3 NMAC, Hearings Under
The Tax Administrative Act, filed 1/17/2018 Replaced 22.600.3 NMAC, Hearings
Under The Tax Administrative Act, effective 8/25/2020.