{ "id": 18780, "name": "Andrew Leo LOPEZ, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF TAXATION AND REVENUE, Respondent-Appellee", "name_abbreviation": "Lopez v. New Mexico Department of Taxation & Revenue", "decision_date": "1997-07-25", "docket_number": "No. 17663", "first_page": "270", "last_page": "273", "citations": [ { "type": "official", "cite": "124 N.M. 270" }, { "type": "parallel", "cite": "949 P.2d 284" }, { "type": "parallel", "cite": "1997-NMCA-115" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "115 N.M. 553", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725499 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nm/115/0553-01" ] }, { "cite": "114 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731644 ], "weight": 2, "pin_cites": [ { "page": "648" }, { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0644-01" ] }, { "cite": "121 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566678 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "114" }, { "page": "1382" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0111-01" ] }, { "cite": "6 P.2d 1329", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "pin_cites": [ { "page": "1330" } ], "opinion_index": 0 }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "765, 67" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "112 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720160 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "491" }, { "page": "1113" }, { "page": "491" }, { "page": "1113" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0489-01" ] }, { "cite": "111 N.M. 735", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715171 ], "weight": 4, "pin_cites": [ { "page": "739" }, { "page": "653" }, { "page": "739" }, { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0735-01" ] } ], "analysis": { "cardinality": 600, "char_count": 12510, "ocr_confidence": 0.701, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.29941764944597155 }, "sha256": "500f1eade95b8cda1390c1329c9247da9fadc27018c9e18b1abf298fee805e8e", "simhash": "1:a766fda5f9f38240", "word_count": 2027 }, "last_updated": "2023-07-14T16:08:56.503190+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and FLORES, JJ., concur." ], "parties": [ "Andrew Leo LOPEZ, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF TAXATION AND REVENUE, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\n1. Petitioner Andrew Lopez (Taxpayer) appeals from the decision of the Taxation and Revenue Department (the Department). Denying Taxpayer\u2019s protests, the Department\u2019s hearing officer upheld the Department\u2019s assessment of gross receipts tax against Taxpayer. The tax was assessed against fees paid to Taxpayer for accounting services performed for the debtors in a bankruptcy proceeding, although such fees had not yet been approved by the bankruptcy court. Taxpayer argues that the hearing officer erred in ruling that: (1) Taxpayer\u2019s protest of the actual audit (as distinguished from the protest of the later assessment) was not filed timely; and (2) Taxpayer was hable to pay gross receipts tax when he \u201creceived\u201d payments for services rendered, even though such payments had not yet been approved by the bankruptcy court. We disagree with Taxpayer\u2019s arguments and affirm.\nI. FACTUAL AND PROCEDURAL BACKGROUND\n2. Taxpayer is a certified public accountant. He was selected by the bankruptcy court to provide accounting services for two bankruptcy debtors. Under the terms of the arrangement, Taxpayer was authorized to charge certain fees for his accounting services, the debtors were authorized to pay the fees, and the bankruptcy court directed Taxpayer to apply for approval of the amounts charged no later than every 180 days. Taxpayer performed services for approximately two years, received the fees he requested, and eventually applied for approval of a total payment in fees of $24,832.81.\n3. The Department notified Taxpayer of an audit. As we note later, there is some question concerning the date on which Taxpayer was officially notified of the audit. In any event, as a result of the audit, the Department assessed Taxpayer $1,945.73. This amount consisted of gross receipts tax, interest, and penalties based upon Taxpayer\u2019s failure to report and pay taxes on the fees he had received from the debtors during the course of the bankruptcy proceedings. Taxpayer timely objected to the assessment, a hearing was held, and the hearing officer entered an order denying Taxpayer\u2019s protests and allowing the assessment.\nII. DISCUSSION\nA. Standard Of Review\n4. \u201cOn appeal from an agency determination, we determine whether, viewing the evidence in a light most favorable to the agency\u2019s decision, the findings have substantial support in the record as a whole.\u201d Wing Pawn Shop v. Taxation & Revenue Dep\u2019t, 111 N.M. 735, 739, 809 P.2d 649, 653 (Ct.App.1991). Additionally, we, as a reviewing court, \u201cshall set aside a decision and order of the hearing officer only if found to be: (1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with the law.\u201d NMSA 1978, \u00a7 7-1-25(C) (Repl.Pamp.1995).\nB. Hearing Officer\u2019s Findings And Conclusions\n5. Unchallenged findings of fact are binding on appeal. Stueber v. Pickard, 112 N.M. 489, 491, 816 P.2d 1111, 1113 (1991). Taxpayer has failed to challenge on appeal findings of fact 1, 2, 4-8, 10-15, and conclusions of law 1 and 3. These findings, as well as other findings, are referred to generally in our discussion of the issues.\nC.Protest Of Audit\n6. Taxpayer first argues that he was \u25a0wrongfully targeted for audit because the audit was retaliatory in nature. The hearing officer found that Taxpayer took no action to protest the audit within the time limits imposed by NMSA 1978, Section 7-l-24(B) (Repl.Pamp.1995). Taxpayer contends there is no statute setting forth time limitations to protest a wrongful audit. We disagree. Section 7-1-24 allows protests by a taxpayer of \u201cthe application of any provision of the Tax Administration Act,\u201d provided the taxpayer files a written protest within thirty days of notice. Section 7-l-24(A), (B). We believe this Section clearly imposed time restrictions on Taxpayer\u2019s protest of the audit by the Department.\n7. Taxpayer additionally claims that he preserved this issue by filing actual or constructive notices with various agencies. Section 7-l-24(B) provides that a taxpayer shall file a protest \u201cwithin thirty days of the date of the mailing to the taxpayer by the department of the notice of assessment or mailing to, or service upon, the taxpayer of other peremptory notice or demand, or the date of mailing or filing a return.\" Under this section, the thirty-day period within which to file a protest could begin when the Department mailed the Taxpayer notice of the assessment or when the Department mailed to or served upon Taxpayer \u201cother peremptory notice or demand[J\u201d Id. \u201c[Ojther peremptory notice or demand\u201d could arguably include the commencement date of the audit. See id. As a result, a question arises concerning when the thirty-day period to file a protest begins.\n8. We need not decide that question because, giving Taxpayer the most liberal interpretation possible, he would have been required to file his protest no later than April 25, 1992. Although the Department contends that notice of the audit was sent in December 1991, the record also contains a letter from the Department to Taxpayer showing the beginning date for the audit was March 25, 1992. Adoption of this date required Taxpayer to file his protest by April 25,1992, thirty days after the beginning date of the audit.\n9. We have searched the record with particular attention to Taxpayer\u2019s citations to the record, which he denotes as \u201cactual or constructive\u201d notice of protest of the audit. Only one, the letter to the Department\u2019s secretary dated January 22, 1991, meets the time limits. This letter, however, does not identify the tax protested, the grounds for the protest, or the relief requested, as required by Section 7-l-24(A). Even more damaging to Taxpayer\u2019s claim is the wording of this letter, which was not in the form of a protest. Instead, the letter ended with an apparent invitation to the Department to \u201c[b]ring on the auditors and a refund check for $1.65!\u201d These words appear to indicate Taxpayer\u2019s acceptance of the audit as an opportunity to vindicate himself.\n10. Viewing the evidence in a light most favorable to the hearing officer\u2019s decision, we conclude that there was sufficient evidence to support the hearing officer\u2019s finding that Taxpayer had not timely protested the audit, as distinguished from the assessment that ultimately resulted from the audit. We thus hold that the hearing officer did not err in concluding that the issue of an improper audit was not properly before him.\nD. Protest Of Tax Assessment\n11. The hearing officer determined that Taxpayer had submitted a timely protest to the tax assessed against him as a result of the audit. Nevertheless, he determined that Taxpayer was liable to pay gross receipts tax when he \u201creceived\u201d payments for services rendered.\n1. Terms Of Bankruptcy Court Order\n12. Without citation to authority, Taxpayer first argues that the bankruptcy court\u2019s order approving and setting the terms of his employment created a contract between all parties to the bankruptcy case and himself. Where arguments in briefs are unsupported by cited authority, we will assume that Taxpayer, after diligent search, was unable to find such authority. See In re Adoption of Doe, 100 N.M. 764, 765, 67.6 P.2d 1329, 1330 (1984). We therefore do not address this argument.\n13. Taxpayer next argues that, although he \u201creceived\u201d his fee payments from the debtors, such payments were only interim, subject to approval by the bankruptcy court and thus potentially subject to that court\u2019s order of disgorgement. Taxpayer contends that the payments were thus conditional and not final and that Taxpayer\u2019s accounting services were not a completed transaction. Taxpayer thus argues that he was authorized to pay, at his option, tax as he received payments or in a lump sum at completion of the entire transaction. The hearing officer found that Taxpayer had not only received the payments but had not segregated those payments in any way from other business and personal funds, depositing them instead together with fees received from other clients. Those findings are uncontested and thus binding on appeal. See Stueber, 112 N.M. at 491, 816 P.2d at 1113. This action by Taxpayer indicates to us that he treated the fees paid by the debtors no differently than gross receipts from other clients. We believe there is an apparent inconsistency between Taxpayer\u2019s failure to segregate and hold the fees in trust separately until he obtained the bankruptcy court\u2019s approval and his argument that he should not have been assessed tax until the fees were approved.\n14. Taxpayer claims he followed NMSA 1978, Section 7-9-3(F)(3) (Repl.Pamp.1995) in designing his employment contract with the bankruptcy court. He also contends that this section provided him with the choice of paying gross receipts tax upon receipt of payments or in one lump sum at the end of his contract. Yet, Taxpayer does not argue there was insufficient evidence to support the hearing officer\u2019s .decision. Instead, he restates the same arguments made to the hearing officer\u2014that the words \u201cas and when payments are actually received\u201d in Section 7-9-3(F)(3) mean an option to pay upon the final approval or upon final payment being made. We believe the hearing officer\u2019s interpretation of the statute was correct and Taxpayer\u2019s suggested reading of the statute is flawed. The interpretation of the meaning of a statute is a question of law that we review de novo. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995); see also Laguna Indus., Inc. v. New Mexico Taxation & Revenue Dep\u2019t, 114 N.M. 644, 648, 845 P.2d 167, 171 (Ct.App.1992), aff'd, 115 N.M. 553, 855 P.2d 127 (1993).\n15. Even if we were to examine this issue under a sufficieney-of-the evidence standard to determine whether there was evidence to support the hearing officer\u2019s decision, Taxpayer\u2019s argument likewise fails. As the hearing officer noted in his decision, there is no definition of \u201creceived\u201d as that word is applied in Section 7-9~3(F)(3). The hearing officer apparently rejected Taxpayer\u2019s attempt to analogize his payments to those received by a building contractor and his claim that his contract gave him a choice of tax payment plans. Instead, the hearing officer decided to give the word \u201creceived\u201d its common and ordinary meaning. Viewing the evidence in a light most favorable to the hearing officer\u2019s decision, we determine that the findings have substantial support in the record as a whole. Wing Pawn Shop, 111 N.M. at 739, 809 P.2d at 653.\n16. Additionally, we note that if Taxpayer truly believed the bankruptcy court arrangement created an inviolate contract between himself and the Department, that his fees required approval before they were deemed \u201creceived\u201d and thus subject to gross receipts tax, or that there was the possibility of a disgorgement order, his remedy would be to request clarification from the bankruptcy court.\n2. Jurisdiction\n17. Taxpayer argues that the Department had no authority to \u201cusurp\u201d the prerogatives of the bankruptcy court concerning what Taxpayer refers to as a contract between himself and the parties involved in the bankruptcy proceedings. As a result, he argues, the hearing officer had no jurisdiction over the subject matter. This argument is made without citation to the record or to any authority. We will not review on appeal issues where there is no citation to the record or stated authority for a proposition. See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330. Additionally, Taxpayer had the option of requesting relief, such as a stay, from the bankruptcy court.\nIII. CONCLUSION\n18. We conclude that the hearing officer was correct in determining that Taxpayer did not timely protest Taxpayer\u2019s audit by the Department. We also conclude that the hearing officer did not err in determining that Taxpayer was liable for the gross receipts tax assessed against fees actually received and used by Taxpayer, although those fees had not yet been approved by the bankruptcy court. We thus affirm.\n19. IT IS SO ORDERED.\nDONNELLY and FLORES, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Tom Udall, Attorney General, Bridget Jacober, Special Assistant Attorney General, Santa Fe, for Appellee.", "Andrew Leo Lopez, Albuquerque, Pro se Appellant." ], "corrections": "", "head_matter": "1997-NMCA-115\n949 P.2d 284\nAndrew Leo LOPEZ, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF TAXATION AND REVENUE, Respondent-Appellee.\nNo. 17663.\nCourt of Appeals of New Mexico.\nJuly 25, 1997.\nCertiorari Denied Nov. 12, 1997.\nTom Udall, Attorney General, Bridget Jacober, Special Assistant Attorney General, Santa Fe, for Appellee.\nAndrew Leo Lopez, Albuquerque, Pro se Appellant." }, "file_name": "0270-01", "first_page_order": 304, "last_page_order": 307 }