March 3, 2020- Marc A. Gelinas v. New Mexico Taxation and Revenue Department, No. A-1-CA-37052

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 3/3/2020 10:13 AM

Filing Date: MARCH 3, 2020 Lh [> |
ark Reynolds

No. A-1-CA-37052 M

IN THE MATTER OF THE PROTEST
OF MARC A. GELINAS TO
ASSESSMENT ISSUED UNDER

NO. L1020757296,

Protestant-Appellee,

Vv.

NEW MEXICO TAXATION
AND REVENUE DEPARTMENT,

Respondent-Appellant.

APPEAL FROM THE ADMINISTRATIVE HEARINGS OEFICE
Christopher Romero, Hearing Officer

Marc A. Gelinas
La Pointe, WI

Pro Se Appellee

Hector H. Balderas, Attorney General

David Mittle, Special Assistant Attorney General
Santa Fe, NM

for Appellant

1 	OPINION
2 B. ZAMORA, Judge.
3 	{t} 	Appellee Marc A. Gelinas (Taxpayer) protested an assessment of tax by the
4 New Mexico Taxation and Revenue Department (the Department) on gross receipts
5 for commissions earned on the sale of implantable prosthetic devices. Following a
6 hearing and supplemental briefing by the parties, the hearing officer found in favor
7 of Taxpayer and abated the assessment in full. The Department appealed. Because
8 we conclude the filing of the Department's notice of appeal was not timely, we
9 dismiss the Department's appeal with prejudice.
10 DISCUSSION
11 	{2} 	On January 9, 2018, the hearing officer filed his decision and order in favor
12 	of Taxpayer, 	finding 	that, 	under 	NMSA 	1978, 	Section 	7-9-66 	(1999), 	and
13 	3.2.l.18GG(6) NMAC, 1 Taxpayer's commissions were not subject to the gross
14 receipts tax, and ordering the assessment be abated in full. On January 17, 2018, the
15 	Department filed a motion for reconsideration, arguing that Section 7-9-66 could not
16 	form the basis of Taxpayer's relief because it was not timely raised, and that the
17 hearing officer had misinterpreted Section 7-9-66 and NMSA 1978, Section 7-9-93
1
In his order and decision, the hearing officer cited Regulation 3.2.l.18HH.
This appears to have been in error. Subsection GG pertains to commission of
independent contracts, while Subsection HH pertains to receipts from winning
contests.

1 (2016). The hearing officer denied the Department's motion for reconsideration on
2 January 24, 2018. The Department filed its notice of appeal on February 16, 2018,
3 twenty-three days after denial of its motion for reconsideration and thirty-eight days
4 after the filing of the hearing officer's decision and order. 2 On March 1, 2018,
5 Taxpayer filed 	a motion in opposition to 	notice 	of appeal 	arguing that the
6 Department's appeal is untimely. We agree with Taxpayer.
7 {3} 	Our resolution of this issue presents an issue of statutory interpretation, and
8 our review is therefore de novo. See In re Grace H., 2014-NMSC-034, 165, 335
9 P.3d 746 (stating that "[o]ur interpretation of a statute is a question of law that an
10 appellate court reviews de novo"). NMSA 1978, Section 7-1-25(A) (2015), of the
11 	Tax Administration Act provides that a party dissatisfied with a decision and order
12 	of the hearing officer."may appeal to the [C]ourt of [A]ppeals for further relief' and
13 	that "[a]ll such appeals to the [C]ourt of [A]ppeals shall be taken within thirty days
14 of the date of mailing or delivery of the written decision and order of the hearing
15 	office!." 	Section 7-l-25(A). Subsection B of Section 7-1-25 states that "[t]he
16 procedure for perfecting an appeal under this section to the [C]ourt of [A]ppeals
17 shall be as provided by the Rules of Appellate Procedure." Rule 12-601 NMRA of
18 the Rules of Appellate Procedure governs the perfection of direct appeals to this
2There is some confusion in the pleadings about the date the notice of appeal
was filed, but the notice was in fact filed on February 16, 2018.
2

1 Court from decisions and orders issued by administrative agencies._See Rule 12-601.
2 Rule 12-601(B) states that "[d]irect appeals from orders, decisions, or actions of
3 boards, commissions, administrative agencies, or officials shall be taken by filing a
4 notice of appeal with the appellate court clerk ... within thirty (30) days from the
5 date of the order, decision, or action appealed from."
6 {4} 	The Department does not dispute that it filed its notice of appeal more than
7 thirty 	days 	after 	the 	hearing 	officer 	filed 	his 	decision 	and 	order. 	However,
8 notwithstanding the plain language of the provisions governing this appeal, the
9 Department contends 	its 	appeal is timely because the 	filing 	of a motion for
10 reconsideration tolls the period for filing a notice of appeal and, even if it does not,
11 	the Department's appeal includes a challenge to the hearing officer's denial of its
12 motion for reconsideration, and the time for appealing that order did not expire until
13 	February 24, 2018. The Department contends there is an absence of guidance in Rule
14 	12-601 and Section 7-1-25, because neither includes language addressing the effect
15 	of a party's filing of a motion for reconsideration on the timeliness of an appeal, and
16 asks us to import statutory language from "other procedural rules" to provide such
17 guidance. We decline to do so.
18 	{5} 	"When a statute contains language which is clear and unambiguous, we must
19 give 	effect to that language and refrain from further statutory interpretation."
20 State ex rel. Helman v. Gallegos, 1994-NMSC-023, 1 18, 117 N.M. 346, 871 P.2d
3

1 1352 (internal quotation marks and citation omitted). Here, neither Section 7-1-25
2 nor Rule 12-601, nor the interplay between the two, contains any ambiguity with
3 respect to the time for filing an appeal of a decision and order issued by a hearing
4 officer considering a tax protest. See§ 7-1-25(A); Rule 12-601(B). However, even
5 if we were to look beyond the clear and unambiguous language of both the statute
6 and rule that govern this appeal, we remain unpersuaded by the Department's
7 arguments directing us to other rules (which govern appeals to district courts). The
8 first such statute, NMSA 1978, Section 39-3-1.l(A) (1999), is expressly limited to
9 "judicial review of agency final decisions that are placed under the authority of this
IO section by specific statutory reference." (Emphasis added.) That condition is not
11 	satisfied here. The second, Rule 1-074 NMRA, says nothing about the effect of a
12 motion for reconsideration on the time to file a notice of appeal. See Rule 1-074
13 	(setting the date for filing a notice of appeal to the district court at thirty days). And
14 the third, Rule 12-505(C) NMRA, makes it plain that when our Supreme Court
15 	wishes to make finality dependent upon whether a motion for reconsideration is
16 filed, it is capable of doing so by including appropriate language. See Rule 12-505(C1
17 (stating that "[t]inal action by the district court shall be the filing of a final order or
18 judgment in the district court unless timely motion for rehearing is filed, in which
19 event, final action shall be the disposition of the last motion for rehearing that was
20 timely filed); United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030,
4

1 125, 148 N.M. 426, 237 P.3d ,728 ("[I]f a statute on a particular subject omits a
2 particular provision, inclusion of that provision in another related statute indicates
3 an intent that the provision is not applicable to the statute from which it was
4 omitted." (alteration, internal quotation marks, and citation omitted)). The "other
5 procedural rules" the Department relies upon are therefore unavailing.
6 	{6} 	Finally, we are not persuaded that the Department is entitled to appeal the
7 hearing officer's denial of its motion for reconsideration separately from its appeal
8 of the decision and order, such that its notice of appeal was rendered timely in this
9 case. As we have explained, the rule governing a direct appeal of a hearing officer's
10 	decision establishes the filing timeline based on the issuance of the decision and
11 	order. See § 7-1-25(A). The Department has pointed to no statute, case, or rule
12 authorizing an appeal from the denial of a motion for reconsideration issued in a
13 	matter arising under the Tax Administration Act and we therefore presume none
14 exists. See Curry v. 	Great Nw. 	Ins. 	Co., 2014-NMCA-031, 128, 320 P.3d 482
15 	("Where a party cites no authority to support an argument, we may assume no such
16 authority exists."). Moreover, to conclude otherwise would effectively insert the
17 tolling language urged by the Department into Rule 12-601 and Section 7-1-25 that
18 	we have rejected.
19 {7} 	This Court must dismiss a case when it does not have jurisdiction, see
20 	Thornton v. Gamble, 1984-NMCA-093, 115, 101 N.M. 764,688 P.2d 1268, and the
5

1 timeliness 	of an 	appeal 	is 	a mandatory precondition to 	the 	exercise 	of our
2 jurisdiction. See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, 112, 112 N.M. 226,
3 814 P .2d 94 (stating that satisfaction of time and place requirements for filing a
4 notice 	of 	appeal 	are 	mandatory 	preconditions 	to 	the 	exercise 	of 	appellate
5 jurisdiction). We will not waive this precondition in the 	absence 	of unusual
6 circumstances. See Santa Fe Pac. Tr., Inc. v. City ofAlbuquerque, 2012-NMSC-028,
7 131,285 P.3d 595 ("An untimely appeal will not be excused when the appellant is
8 responsible for not filing a notice of appeal on time and there are no unusual
9 circumstances warranting excusal. "). We perceive no such circumstances here. The
10 Department has offered no reason why it was unable to comply with the thirty-day
11 	rule for filing a notice of appeal in this matter. The hearing officer disposed of the
12 Department's motion for reconsideration five days before the notice deadline and,
13 	in its order denying the motion, clearly instructed that"[ m]otions for reconsideration
14 may not be used to circumvent the appeals process and do not extend the time for
15 	taking an appeal." The Department had ample time to file a timely notice of appeal
16 following the denial of its motion, yet failed to do so. We therefore conclude the
17 Department's appeal is untimely.
18 	CONCLUSION
19 {8} 	Based on the foregoing, we dismiss the Department's appeal with prejudice.
6

—

93 ITISSO ORDERED.

Nt

WE CONCUR:

A M. VANZI, Judge

Acabetine R. MEDINA, Judge

eG H.