Kimmet D Holland


On December 12, 2019, and then on January 29, 2020, the Department sent letters to the Taxpayer denying requests for a refund of personal income tax in 2013 and 2014. On February 4, 2020, the Taxpayer sent a formal protest of the denials. The Taxpayer received retirement from the state of New Mexico. In 2012 the Taxpayer moved to Colorado but New Mexico income tax continued to be withheld from his retirement. Though the Taxpayer notified the retirement that he had moved, he never filled out a form to stop the New Mexico withholding. In 2019 the taxpayer realized that the withholding he assumed was for Colorado had been for New Mexico and applied for a refund of the New Mexico withholding. The Department processed refunds for the all the tax years the Taxpayer claimed except 2013 and 2014 because the statute of limitations had expired. The Taxpayer argued that by denying the refunds for these years the Department was in violation of the federal law that stated retirement could only be taxed in the state where the individual resided. However, the Hearing Officer determined that the federal law stated that New Mexico could not imposed tax on income that was being taxed in Colorado and that the Department was not actually imposing a tax when if accepted withholding payments sent to it from the Taxpayer’s retirement. As a self-reporting state, it was the responsibility of the Taxpayer to update the withholding that was being paid to the Department. The statute of limitations is three years from the end of the calendar year when the tax year is due, so the Taxpayer certainly had time to update the withholding instructions. Since this was not done within the statute of limitations, the Hearing Officer determined that the refund requests for these years had been denied correctly and ordered the protest denied.