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Joseph & Kathy Mailander



During the period at issue, the Taxpayer and his wife had a home in Las Cruces and maintained New Mexico voter and vehicle registrations and New Mexico driver’s licenses.  The Taxpayer’s wife also ran a business out of their Las Cruces home.  In 1998, the Taxpayer took a position at an automobile dealership in El Paso, Texas.  He leased a small apartment in El Paso where he stayed when it was too late to commute to his home in Las Cruces.  When he began working in Texas, the Taxpayer asked the Department whether his wages would be subject to New Mexico personal income tax.  He was told that if he established residence in Texas and spent fewer than 185 days in New Mexico each year, his wages would not be subject to tax.  The Taxpayer did not inquire as to the criteria used to establish residency or review New Mexico law or regulations on the subject.  The Taxpayer did not keep a log of the nights he spent in Texas, but after leasing the apartment, he and his wife stopped filing New Mexico income tax returns.  In 2005, the Department contacted the Taxpayer regarding his 2000 and 2001 taxes.  He responded by sending in his Texas lease with a notation that he was a full-time resident of Texas.  He failed to disclose that he maintained a permanent home, voter and vehicle registrations, and a driver’s license in New Mexico.  The Department accepted the Taxpayer’s response and did not make further inquiries until 2007, when a supervisor researched the Taxpayer’s MVD and voter registration records for the 2004 tax year.  An assessment was subsequently issued for 2004.  The Taxpayer protested, arguing that the Department’s acceptance of his Texas residency for the earlier tax years bound the Department for the 2004 tax year.  At the hearing, the Taxpayer conceded that he and his wife were residents of New Mexico during the period in question, but continued to argue that the Department’s previous advice and actions excused him from payment of taxes otherwise due.  The hearing officer held that the facts did not support a finding of estoppel and denied the protest.?