N.M. Admin. Code § 22.600.3.18

Current through Register Vol. 35, No. 23, December 10, 2024

Section 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.

N.M. Admin. Code § 22.600.3.18

Adopted by New Mexico Register, Volume XXIX, Issue 02, January 30, 2018, eff. 2/1/2018, Adopted by New Mexico Register, Volume XXXI, Issue 16, August 25, 2020, eff. 8/25/2020