{
  "id": 2771001,
  "name": "GARFIELD MINES LTD., Appellant, v. Fred O'CHESKEY, Commissioner of Revenue, Appellee",
  "name_abbreviation": "Garfield Mines Ltd. v. O'Cheskey",
  "decision_date": "1973-08-29",
  "docket_number": "No. 1070",
  "first_page": "547",
  "last_page": "549",
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    "name_abbreviation": "N.M. Ct. App.",
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    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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      "reporter": "N.M.",
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      "year": 1958,
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  "last_updated": "2023-07-14T15:38:26.265107+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WOOD, C. J., and HENDLEY, J., concur."
    ],
    "parties": [
      "GARFIELD MINES LTD., Appellant, v. Fred O\u2019CHESKEY, Commissioner of Revenue, Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nHERNANDEZ, Judge.\nThis is an appeal from a decision and order by the Commissioner of Revenue denying appellant\u2019s protest of an assessment levied pursuant to \u00a7 72-16A-7(A) (2), N.M.S.A.1953 (Vol. 10, pt. 2, 1971 Supp.) which provides for a compensating tax for the privilege of using property in New Mexico acquired outside of the State.\nThree points of error are asserted: (1) No tax is due because the appellant did not purchase the personal property in question; (2) the decision of the commissioner is not supported by \u201ccompetent evidence\u201d; (3) appellant is not subject to this tax.\nWe affirm.\nAppeals from an order of the Commissioner of Revenue are governed by \u00a7 72-13-39, N.M.S.A.1953 (Vol. 10, pt. 2, 1971 Supp.) which reads in pertinent part: \u201cUpon appeal, the court shall set aside a decision and order of the commissioner 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 law.\u201d We also call attention to \u00a7 72-13-32(C), N.M.S.A.1953 (Vol. 10, pt. 2, 1971 Supp.) \u201cany assessment of taxes made by the bureau is presumed to be correct\u201d, and \u00a7 72-13-38(F), N.M.S.A.1953 (Vol. 10, pt. 2, 1971 Supp.) \"In hearings before the commissioner or his delegate, the technical rules of evidence shall not apply, but in ruling on the admissibility of evidence, the commissioner or his delegate may require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt.\u201d\nAs to point (1) the record discloses that on August 31, 1970 appellant entered into a purchase agreement with Vought Helicopter Incorporated for the purchase of a helicopter for the sum of $216,230.00. A deposit of $10,000 was made and the balance was paid by a promissory note. The sum due by the note was secured by a security agreement. The helicopter was delivered to appellant, who then used it in New Mexico. It was appellant\u2019s position that since only the initial deposit of $10,000 had been paid that the purchase agreement had not been consummated. Therefore there had been no sale and accordingly no tax was due. Appellant\u2019s argument is without merit. The purchase agreement was not an executory document and failure to make any of the subsequent payments after the deposit did not render it executory. See \u00a7\u00a7 50A-2-106(l) and 50A-2-401(2), N.M.S.A.1953 (Repl. Vol. 8, pt. 1). \u201cBut a sale once complete in law does not change to or become some other sort of transaction because the purchaser later fails or refuses to pay as agreed.\u201d Knowles v. Jones, 63 N.M. 391, 320 P.2d 744 (1958).\nThe basis of appellant\u2019s second point is that hearsay evidence was admitted to prove the authenticity of the documents discussed above and other documents, and that these documents are hearsay because they were offered to prove the truth of the recitals therein. Appellant\u2019s second point is not well taken. The \u201ctechnical rules of evidence\u201d do not apply in hearings before the Commissioner. The oral evidence provided reasonable substantiation [\u00a7 72-13-38(F), supra] of the documents. They were properly admitted. Further, even if the documents introduced by the Bureau were not considered, the inferences from the oral testimony support the applicability of the compensating tax and, thus, support the denial of appellant\u2019s claim that he did not purchase the helicopter. See Torridge Corporation v. Commissioner of Revenue, 84 N.M. 610, 506 P.2d 354 (Ct.App.1973); Archuleta v. O\u2019Cheskey, 84 N.M. 428, 504 P.2d 638 (Ct.App.1972).\nAppellant\u2019s claim of exemption, set forth as its third point of error, is that their business is subject to the Resources Excise Tax Act (\u00a7 72-16A-20 to \u00a7 72-16A-29, N.M.S.A.1953 (Vol. 10, pt. 2, 1971 Supp.)) and therefore exempt from the Compensating Tax Act by reason of \u00a7 72-16A-12.23, N.M.S.A.1953 (Vol. 10, pt. 2, 1971 Supp.). The evidence was insufficient to show that appellant was engaged in activities which subjected it to the resources excise tax. Appellant failed to show it was entitled to the claim exemption. Rock v. Commissioner of Revenue, 83 N.M. 478, 493 P.2d 963 (Ct.App.1972).\nThe decision and order of the Commissioner is affirmed.\nWOOD, C. J., and HENDLEY, J., concur.",
        "type": "majority",
        "author": "HERNANDEZ, Judge."
      }
    ],
    "attorneys": [
      "C. N. Morris, Silver City, for appellant.",
      "David L. Norvcll, Atty. Gen., Susan P. Graber, Bureau of Revenue, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "514 P.2d 304\nGARFIELD MINES LTD., Appellant, v. Fred O\u2019CHESKEY, Commissioner of Revenue, Appellee.\nNo. 1070.\nCourt of Appeals of New Mexico.\nAug. 29, 1973.\nC. N. Morris, Silver City, for appellant.\nDavid L. Norvcll, Atty. Gen., Susan P. Graber, Bureau of Revenue, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0547-01",
  "first_page_order": 609,
  "last_page_order": 611
}