Errol Chaisson

05-12

In August, 1999, the taxpayer filed an amended 1997 New Mexico personal income tax return reporting a refund due and requesting that the amount be refunded directly to him.  Three days later, the taxpayer filed a second amended 1997 return, claiming a slightly larger refund and asking that the refund amount be applied to tax year 1998.  The taxpayer then filed his 1998 New Mexico personal income tax return showing the refund amount from his second amended 1997 return as a payment against his 1998 tax liability.  The taxpayer subsequently received a check for the refund amount requested on his first amended 1997 return and deposited it in his account.  The taxpayer did not check the refund against his 1997 returns and failed to realize that accepting the cash refund requested in his first amended return would nullify the request in his second amended return that this same amount be applied to the 1998 tax year.  In 2002, the Department assessed the taxpayer for the resulting underpayment of his 1998 income tax, plus penalty and interest.  The taxpayer protested the penalty and interest, arguing that the Department should have applied his 1997 refund to his 1998 taxes.  The hearing officer denied the protest, finding that the taxpayer was responsible for any confusion created by his conflicting 1997 income tax returns and that interest and penalty were properly assessed pursuant to Sections 7-1-67 and 7-1-69 NMSA 1978.  ?