Kevin D Fenner



On February 4, 2016, the Department issued a Notice of Claim of Tax Lien to the Taxpayer for personal income taxes for all tax years between 2003 and 2010. The liability in 2003 was assessed in 2007, with all other years assessed in 2013. The Taxpayer protested this tax lability in 2014 and which was subsequently determined in the Department’s favor in D&O 14-39. The Taxpayer then appealed D&O 14-39 to the New Mexico Court of Appeal which affirmed the decision. In 2017 the Department initiated warrant levies against assets of the Taxpayer to collect the outstanding liability. On October 24, 2017, the Taxpayer sent separate letters protesting a notice of levy. The Hearing Officer began by stating that the taxability of the liability had been settled in the previous protest and the current hearing was intended only to decide the merits of the several other issues brought by the Taxpayer in his most recent protest. The first point addressed was whether the Department’s attorney had acted in bad faith, but no evidence was provided by the Taxpayer to support this accusation. Next was whether the Department acted properly when serving levies to seize the Taxpayer’s property. The Hearing officer sited Section 7-1-32 NMSA 1978 in explaining the threshold that must be met to allow the Department to take such an action. The law states that there needs to be evidence of a liability and this was shown by the many assessments and demands for payments. The Taxpayer then claimed that the notices sent to his mailing address instead of his physical address prevented him from receiving effective notice of the actions. But the Hearing Officer noted that no change of address form had been filled out as required by statute and that no mail was returned by the Post Office to suggest that the mailing address was wrong. The next issue brought by the Taxpayer was whether the Department is time barred from collecting the liability under Section 7-1-19 NMSA 1978 which states that no action may be taken by the Department beyond ten years from the date of an assessment. The evidence, however, clearly showed the collection actions were taken well within ten years from the time the Taxpayer was sent notices. The Taxpayer also argued that the rule that money or property totaling $1,000 is exempt from levy should have prevented the Department from taking $1,110.07 from one of his accounts. This statute, Section 7-1-36A NMSA 1978, the Hearing Officer explained, exempts up to a total value of $1,000 of a Taxpayer’s total assets and not this amount from just one account. The Hearing Officer, therefore, determined that the Department had acted properly in acting to collect an outstanding liability from a delinquent taxpayer and ordered that the protest be denied.