N.M. Admin. Code § 22.600.3.8

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

Section 22.600.3.8 - REQUESTS FOR HEARING, ANSWERS, SCHEDULING OF MERITS HEARINGS, SCHEDULING HEARINGS, SCHEDULING ORDERS, AND PEREMPTORY EXCUSALS

A. Pursuant to Subsection B of Section 7-1B-8 NMSA 1978, TRD shall file a request for hearing with the administrative hearings office no less than 60 days and no more than 180 days from the date of its acknowledgement of a valid protest on a form and in a manner specified by the chief hearing officer

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 60^th 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.

N.M. Admin. Code § 22.600.3.8

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