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]
22.600.1.22 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.