Disputing liabilities; administrative protest

# A.

A taxpayer may dispute:

# (1)

the assessment to the taxpayer of any amount of tax over fifty dollars
($50.00);

# (2)

the application to the taxpayer of any provision of the Tax Administration Act except the issuance of a subpoena or summons; or

# (3)

the denial of or failure either to allow or to deny a:

(a) credit or rebate; or

(b) claim for refund made in accordance with Section 7-1-26 NMSA 1978.

# B.

The taxpayer may dispute a matter described in Subsection A of this section by filing with the secretary a written protest that:

# (1)

identifies the taxpayer and the tax credit, rebate, property or provision of the Tax Administration Act involved;

# (2)

states the grounds on which the protest is based and summarizes evidence supporting each ground asserted; and

# (3)

states the affirmative relief requested.

# C.

A taxpayer may amend a statement made by the taxpayer in accordance with Paragraphs (2) and (3) of Subsection B of this section at any time prior to ten days before the hearing conducted on the protest in accordance with the Administrative Hearings Office Act [Chapter 7, Article 1B NMSA 1978] or, if a scheduling order has been issued, in accordance with the scheduling order. The secretary may, in appropriate cases, provide for an informal conference before a hearing of the protest is set by the administrative hearings office or before acting on a claim for refund.

# D.

A taxpayer may file a protest, in the case of an assessment of tax by the department, without making payment of the amount assessed; provided that, if only a portion of the assessment is in dispute, any unprotested amounts of tax, interest or penalty shall be paid, or, if applicable, an installment agreement pursuant to Section 7-1-21 NMSA 1978 shall be entered into for the unprotested amounts, on or before the due date for the protest.

# E.

A protest by a taxpayer shall be filed within ninety days after:

# (1)

the date of the mailing to the taxpayer by the department of the notice of assessment and demand for payment as provided in Subsection A or D of Section 7-1-17 NMSA 1978;

# (2)

the mailing of the other peremptory notice or demand;

# (3)

the date of the application to the taxpayer of the applicable provision of the Tax Administration Act; or

# (4)

the date of denial of a claim pursuant to Section 7-1-26 NMSA 1978 or the last date upon which the department was required to take action on the claim but failed to take action.

# F.

If a taxpayer fails to timely protest an assessment of tax, penalty or interest:

# (1)

the undisputed amount of tax assessed and not protested becomes final;

# (2)

the taxpayer is deemed to have waived the right to protest the assessment, unless the taxpayer pays the tax and claims a refund of the tax pursuant to Section 7-1-26 NMSA 1978; and

# (3)

the secretary may proceed to enforce collection of the tax if the taxpayer is delinquent as defined by Section 7-1-16 NMSA 1978.

# G.

The fact that the department did not mail the assessment or other peremptory notice or demand by certified or registered mail or otherwise demand and receive acknowledgment of receipt by the taxpayer shall not be deemed to demonstrate the taxpayer's inability to protest within the required time.

# H.

A proceeding other than one to enforce collection of an amount assessed as tax and to protect the interest of the state by injunction, as provided by Sections 7-1-31, 7-1-33, 7-1-34, 7-1-40, 7-1-53, 7-1-56 and 7-1-58 NMSA 1978, is not stayed by timely filing of a protest in accordance with this section.

# I.

Nothing in this section shall be construed to authorize a criminal proceeding or to authorize an administrative protest of the issuance of a subpoena or summons.