Stronghold Construction

23-16

On August 16, 2022, the Department assessed the Taxpayer for penalty and interest for the tax period ending June 30, 2022. On October 25, 2022, the Taxpayer filed a timely protest with the Department. The Taxpayer agreed to the dates that the gross receipts tax return was filed and paid after the due date for the period. The Taxpayer argues that they were not negligent. The Taxpayer noted calling Department and asking what the consequences of filing and paying late would be and was told that a $5 late fee would be due. The Taxpayer decided to file late to ensure that the return was filed correctly and accurately. Interest is required by statute and cannot be abated. Penalty is applied for failure to pay or file on time. Penalty is calculated at a rate of 2% per month or partial month up to 20% of the tax due or a minimum of $5, whichever is greater. The Hearing Officer determined that based on regulation 3.1.11.10 NMAC that the Taxpayer did not fit the requirements for non-negligence. The Hearing Officer notes that in some cases equitable estoppel is available but there was no evidence showing that the Department’s employee engaged in conduct that was aggravated, overreaching or misleading, and equitable estoppel does not apply. The Hearing Officer determined that the protest is denied.