Rodolfo V. Franco



On April 25, 2007, the Department assessed Taxpayer for personal income tax, penalty and interest for the personal income tax period ending December 31, 2003. Taxpayer protested the assessment, arguing he was not a New Mexico resident in 2003 because he was not present in New Mexico for 185-days in 2003. Taxpayer was employed at a prison in Pecos, TX from 1996-2004, and thus was not physically present in NM for 185-days. However, the hearing officer found that in 2003, an individual was a resident of New Mexico if they were either physically present in the State for 185-days or if they were domiciled in New Mexico during the year without establishing a new domicile by the last day of the year. By regulation applicable at the time, a person registered to vote in New Mexico and licensed to drive in New Mexico during the year, who does not establish a new license and voter registration in another state by the end of the year, is presumed domiciled in New Mexico. Taxpayer remained registered to vote in New Mexico and not in Texas in 2003, and voted in New Mexico elections repeatedly from 2000 through 2004.  Taxpayer also maintained his New Mexico driver’s license in 2003. Therefore, under the then relevant regulation, Taxpayer was presumed domiciled in New Mexico in 2003. Moreover, Taxpayer was domiciled in New Mexico in 2003 under applicable case law. During Taxpayer’s employment in Pecos, TX, Taxpayer built a home on his Anthony, NM land that was larger than his residence in Pecos, TX. Taxpayer claimed a property tax deduction on his Anthony, NM, home that required Taxpayer to be a resident of NM. In 2003, the Taxpayer registered a new vehicle with NM MVD and listed his address as Anthony, NM.  Taxpayer’s wife renewed her NM driver’s license at the end of 2003. Because of uncertainty about his employment situation in Pecos, TX, Taxpayer testified that he maintained his connections to New Mexico, which shows that he considered his Anthony, NM home his true home where he intended to return. This evidence established that Taxpayer was domiciled in NM in 2003 without establishing a new domicile by the end of the year and Taxpayer’s protest was denied.