Tom Growney Equipment, Inc.

03-05

The Taxpayer is engaged in business in New Mexico and is registered with the Department for payment of CRS taxes on a monthly basis.  In March 2002, the Taxpayer’s general manager decided to use the Department’s web site to electronically report and pay CRS taxes due for the February 2002 reporting period. The general manager failed to read the instructions on the Department’s web site and did not make an effective payment of tax due. He made the same mistake when trying to pay CRS taxes for the next reporting period.  The Taxpayer’s accounting staff failed to notify the general manager that the tax payments had not cleared the Taxpayer’s account, and he did not discover his mistake until he received an assessment from the Department in April 2002. He then paid the tax principal due, but filed a protest to the assessment of penalty, arguing that: 1) the Department’s instructions concerning electronic payments were not clear, and 2) the hearing officer should waive or reduce the penalty based on the Taxpayer’s exemplary reporting history. Held: The hearing officer does not have authority to waive penalty based on a taxpayer’s past reporting history. The Taxpayer’s failure to timely pay its CRS taxes was due to negligence, and penalty was properly assessed pursuant to Section 7-1-69 NMSA 1978.