us-nm/stat
NMSA 1978, § 7-1-17.1 — Tax liability; spouse or former spouse
A.
If the secretary or the secretary's delegate determines that, taking into account
the facts and circumstances in Subsections F and G of this section, it is inequitable to
hold a spouse liable for payment of all or part of any unpaid tax, assessment or other
deficiency for a tax, the secretary may decline to bring an action or proceeding to collect
such taxes from the spouse, including collection from the spouse's interest in
community property.
B.
The secretary or the secretary's delegate may grant innocent spouse relief to a
spouse who files a joint tax return and all or part of the spouse's portion of any
overpayment was, or is expected to be, applied to the tax liability for which the spouse
is not liable because the liability is determined to be separate debt, as defined in
Subsection A of Section 40-3-9 NMSA 1978.
C.
If on review it is determined that the information relied on to make the innocent
spouse relief determination was incorrect or fraudulent, the department may rescind the
innocent spouse relief and proceed to collect the affected taxes from the spouse.
D.
Innocent spouse relief does not authorize the abatement of taxes or enforcement
of any provisions of the Tax Administration Act against the taxpayer.
E.
A lien or levy imposed on a spouse or property of a spouse who qualifies for
innocent spouse relief may be released as to taxes deemed inequitable to collect
pursuant to this section.
F.
If the federal internal revenue service granted the spouse relief pursuant to 26
U.S.C. Section 6015, the spouse may request similar relief from the department on a
form prescribed by the department, regardless of whether the spouse is a joint or
separate filer for New Mexico income tax. The spouse shall provide a copy of the
federal internal revenue service's determination with the request that the secretary or
the secretary's delegate cease collection activity against the spouse to the extent relief
was allowed by the federal internal revenue service. The department shall grant
innocent spouse relief for the same tax periods and tax programs granted relief by the
federal internal revenue service; provided that the request for relief is submitted on the
form prescribed by the department. The secretary or the secretary's delegate may
decline to pursue collection activity against a spouse while an application for relief is
pending before the federal internal revenue service, but the failure to seek or obtain
relief shall not preclude the secretary or secretary's delegate from declining to collect
tax from a spouse when collection would be inequitable. An item giving rise to a
deficiency on a joint return shall be allocated to an individual filing the return in the same
manner as it would have been allocated if the individual had filed separate returns for
the taxable year.
G.
The secretary or the secretary's delegate shall consider at least the following
facts and circumstances when determining whether to grant innocent spouse relief if the
federal internal revenue service has not granted the spouse personal income tax relief
pursuant to 26 U.S.C. Section 6015:
(1) whether the spouse had knowledge of the tax liability at the time the
liability arose;
(2) whether the spouse had a meaningful opportunity to contest the
assessment of tax at the time the assessment was made;
(3) whether the spouse cooperated with the department in collection and
compliance efforts, to the extent the spouse had knowledge of collection and
compliance efforts;
(4) whether the state can protect its interests without pursuing active
collection efforts against the spouse, including collection efforts against the taxpayer;
(5) whether the spouse benefited from the transfer of income, receipts or
significant amounts of property from the taxpayer;
(6) whether the spouse participated in the business and financial decisions of
the household during the periods when the tax liability arose;
(7) whether the spouse participated in operating a business with the taxpayer;
(8) whether the spouse had responsibility for the finances of a business for
which the spouse participated;
(9) whether the spouse had responsibility for payment of taxes for a
business for which the spouse participated; and
(10) whether the spouse knew that the taxpayer engaged in business.
H.
No one factor contemplated to Subsection G of this section shall be considered
determinative in considering whether tax collection from a spouse would be inequitable.
Each factor may be given different relative weight, depending on the facts and
circumstances presented; therefore, the presence of a majority of factors considered
tending to support innocent spouse relief in a particular case may not necessarily
indicate that the spouse in question qualifies for innocent spouse relief for New Mexico
tax purposes.
I.
The secretary shall adopt and promulgate regulations as necessary for making
the determinations pursuant to this section.
J.
As used in this section:
(1) "innocent spouse relief" means the relief from collection of tax liabilities
pursuant to this section;
(2) "spouse" means a current or former spouse of a taxpayer; and
(3) "taxpayer" means a taxpayer who is or was married to a spouse who is
seeking innocent spouse relief pursuant to this section.
Source: official text