{ "id": 2777107, "name": "R. H. FULTON, INC., Appellant, v. NEW MEXICO BUREAU OF REVENUE, Appellee", "name_abbreviation": "R. H. Fulton, Inc. v. New Mexico Bureau of Revenue", "decision_date": "1973-09-19", "docket_number": "No. 1040", "first_page": "583", "last_page": "585", "citations": [ { "type": "official", "cite": "85 N.M. 583" }, { "type": "parallel", "cite": "514 P.2d 1079" } ], "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": "84 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0303-01" ] }, { "cite": "34 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556098 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0306-01" ] }, { "cite": "132 A.L.R. 1048", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1941, "pin_cites": [ { "page": "1051,1052" } ], "opinion_index": 0 }, { "cite": "160 P. 359", "category": "reporters:state_regional", "reporter": "P.", "year": 1916, "opinion_index": 0 }, { "cite": "22 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4725023 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nm/22/0215-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7516, "ocr_confidence": 0.718, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08433078530833264 }, "sha256": "139d693f3c89f91c8e9b91dc6d16ac77b55ca821ede9c1b09cad89ec20a5e0e1", "simhash": "1:3d98fdbab0e18420", "word_count": 1264 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and HERNANDEZ, JJ., concur." ], "parties": [ "R. H. FULTON, INC., Appellant, v. NEW MEXICO BUREAU OF REVENUE, Appellee." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nThis is an appeal from a decision and order of the Commissioner of Revenue. (\u00a7 72-13-39(A), N.M.S.A. 1953 (Repl.Vol. 1961, pt. 2, Supp.1971)). By the challenged order the Commissioner seeks to tax a contract entered into by the taxpayer on April 7, 1969, at the higher rate of tax effective July 1, 1969, rather than at the lower rate in effect prior to that date.\nThis case involves the interpretation of \u00a7 66, Chap. 144, Laws 1969, which reads as follows:\n\u201cSection 66. Temporary Provision.\u2014 By regulation, the commissioner shall provide a system for the registration of contracts entered into prior to the passage of this act which do not permit an increase in price to cover an increase in the gross receipts and compensating tax rate or the elimination of an exemption or deduction allowed in the Gross Receipts and Compensating Tax Act. Receipts from contracts registered with the commissioner shall be taxed according to the laws existent prior to the effective date of this act. Receipts from the sale of services or materials incorporated into a construction project, the contract for which is registered with the commissioner, shall be treated as receipts from sales made under the law as it existed prior to the effective date of this act.\u201d\nPursuant to \u00a7 66, supra, the Bureau of Revenue promulgated G.R.Reg. 66-1 (1969), which provides, in relevant part:\n\u201cG.R. Regulation 66-1 \u2014 REGISTRATION AND TAX TREATMENT OF PRIME' CONSTRUCTION CONTRACTS ENTERED INTO PRIOR TO APRIL 1, 1969 \u2014 ISSUED AND EFFECTIVE JUNE 25, 1969\u2014\n\u201c1. Registration. Prime construction contractors may, but are not required to, register with the Commissioner of the Bureau of Revenue prime construction contracts entered into prior to April 1, 1969, if the contracts do not permit an increase in price to cover any increase in the gross receipts and compensating tax rate or any increase in tax resulting from the elimination of an exemption or deduction that was allowed in the Gross Receipts and Compensating Tax Act effective prior to July 1, 1969. * * * \u201d\nThe Bureau\u2019s reason for selecting April 1, 1969, as the cutoff date before which a contract must have been entered into in order to obtain the favorable tax treatment provided for in \u00a7 66, supra, is that it was on that date that the Governor signed the bill.\nAs stated above, the contract which is the source of the present controversy was entered into by taxpayer on April 7, 1969. Taxpayer made no attempt to register this contract with the Bureau as provided in G.R.Reg. 66-1, supra. Its stated reason was that it \u201chad no reason to believe that the contract would be accepted by the Bureau * * * while the Bureau\u2019s regulation announces that contracts dated later than April 1, 1969 would not be eligible.\u201d It is the Bureau\u2019s position that the interpretation of \u00a7 66, supra, contained in G.R. Reg. 66-1, supra, is a valid exercise of the Commissioner\u2019s statutory authority to interpret the tax laws. (\u00a7 72-13-23(A), N. M.S.A.1953 (Repl.Vol.1961, pt. 2, Supp. 1971)). We disagree.\nThe determinative question on the issue of the correctness of G.R.Reg. 66-1, supra, is the meaning of the phrase \u201c * * * passage of this act * * *\u201d as used in \u00a7 66, supra. If that phrase refers, as the Bureau contends, to the date on which the Governor signed the bill then G.R.Reg. 66-1, supra, is a correct interpretation. If, on the other hand, the phrase refers to the date on which the bill became law then G. R.Reg. 66-1, supra, is incorrect to the extent that it cuts off the right to register a contract entered into prior to July 1, 1969, but after April 1, 1969.\nWe begin our discussion of the meaning of the phrase \u201c * * * passage of this act * * * \u201d with a consideration of Art. IV, \u00a7 23 of the New Mexico Constitution, which states:\n\u201cLaws shall go into effect ninety days after the adjournment of the legislature enacting them, except general appropriation laws, which shall go into effect immediately upon their passage and approval. Any act necessary for the preservation of the public peace, health or safety, shall take effect immediately upon its passage and approval, provided it be passed by two-thirds vote of each house and such necessity be stated in a separate section.\u201d\nThis provision has been construed to mean that the legislature may provide that legislative enactments should go into effect more than ninety days after their enactment, but that the legislature cannot make non-emergency legislation effective less than ninety days after enactment. State ex rel. New Mexico State Bank v. Montoya, 22 N.M. 215, 160 P. 359 (1916).\nProvisions similar to Art. IV, \u00a7 23, supra, are cited by the author of the annotation at 132 A.L.R. 1048 (1941) as one of the major reasons why phrases such as that presently under consideration are given a technical meaning.\n\u201cIn the greater number of cases the term \u2018passage of this act\u2019 appearing in the body of a legislative enactment as describing the time element which brings facts or condititons within or without its operation has been construed as designating or referring to the time when the act goes into effect rather than to the time of its enactment or approval.\n\u201c * * *\n\u201cAmong the reasons advanced in support of construing the word \u2018passage\u2019 in its technical rather than in its natural sense are * * * that to construe such term so as to bring within the operation of the act something that occurred before the act took effect would be violative of constitutional provisions prescribing the time at which legislative enactments shall go into effect.\u201d 132 A.L. R. at 1051,1052.\nWe are of the opinion that to interpret the phrase \u201c * * * passage of this act * * * \u201d to refer to any date prior to July 1, 1969, would violate Art. IV, \u00a7 23 of the New Mexico Constitution. State ex rel. New Mexico State Bank v. Montoya, supra. Accordingly, we hold that that phrase is used in its technical sense in \u00a7 66, supra, and refers to July 1, 1969. See State v. Southern Pac. Co., 34 N.M. 306, 281 P. 29 (1929). There can, of course, be no doubt that the Commissioner cannot do by regulation what the legislature cannot do by statute.\nIn view of the foregoing discussion we find it unnecessary to consider the Commissioner\u2019s other arguments relating to the interpretation of \u00a7 66, supra.\nThe Bureau also argues that taxpayer has waived its right to have the present contract taxed at the old rate because of the admitted failure to register the contract in accordance with G.R.Reg. 66-1, supra. This argument is without merit. By its very terms G.R.Reg. 66-1, supra, only permits registration of contracts entered into prior to April 1, 1969. Having drafted the regulation in these terms the Bureau cannot argue that by failing to comply with the terms of a regulation, which on its face does not apply to taxpayer, that taxpayer waived its rights under the statute as enacted. Compare Rainbo Baking Co. of El Paso v. Commissioner of Rev., 84 N.M. 303, 502 P.2d 406 (Ct.App.1972).\nThe decision of the Commissioner is reversed and the cause is remanded for proceedings consistent with this opinion.\nIt is so ordered.\nSUTIN and HERNANDEZ, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "William Federici, John B. Pound, Montgomery, Federici, Andrews, Hannahs & Morris, Santa Fe, for appellant.", "David L. Norvell, Atty. Gen., Susan P. Graber, Bureau of Revenue, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "514 P.2d 1079\nR. H. FULTON, INC., Appellant, v. NEW MEXICO BUREAU OF REVENUE, Appellee.\nNo. 1040.\nCourt of Appeals of New Mexico.\nSept. 19, 1973.\nWilliam Federici, John B. Pound, Montgomery, Federici, Andrews, Hannahs & Morris, Santa Fe, for appellant.\nDavid L. Norvell, Atty. Gen., Susan P. Graber, Bureau of Revenue, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0583-01", "first_page_order": 645, "last_page_order": 647 }