April 01, 2011 – Tony Q. Chan and Carolyn Hong, Trustees v. Karen L. Montoya, Bernalillo County Assessor, No. 29,142, consolidated with No. 29,760

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 1, 2011
NO. 29,142 consolidated with NO. 29,760

TONY Q. CHAN and
CAROLYN HONG,

‘Trustees,
Plaintiffs-A ppellees,
V.

KAREN L. MONTOYA,
BERNALILLO COUNTY ASSESSOR,

Defendant- Appellant,
and

FIRST BAPTIST CHURCH OF NEW MEXICO,
a New Mexico non-profit corporation,

Plaintiff-A ppellee,
V.

KAREN L. MONTOYA,
BERNALILLO COUNTY ASSESSOR,

Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District Judge
Keleher & McLeod, P.A.
Jeffrey A. Dahl
Javier F. Junco
Albuquerque, NM
for Appellees Tony Q. Chan and Carolyn Hong
James T. Roach
Albuquerque, NM
for Appellee First Baptist Church of New Mexico
Jeffrey S. Landers, Bernalillo County Attorney
M. David Chacon, II, Assistant Bernalillo County Attorney
Albuquerque, NM
for Appellant

OPINION
VIGIL, Judge.
{1} 	The question presented in these cases is whether the statutory time limit for
filing a property tax refund complaint, under NMSA 1978, Section 7-38-40 (2003) of
the Property Tax Code, begins to run on the date the tax payment is due, or on the date
the payment becomes delinquent. We conclude that the time begins on the due date.
We therefore hold that the district court erred in denying Defendant’s motions to
dismiss on grounds that the complaints were untimely, and reverse.
I. 	BACKGROUND
{2} 	In the first case, Taxpayers, as trustees for property located in Albuquerque,
New Mexico, were mailed a property tax bill for the 2007 tax year. In the second
case, Taxpayer also received its 2007 property tax bill for property it owns in
Albuquerque, New Mexico. 	(Hereinafter, “Taxpayers” refers to both sets of
Taxpayers.) Each of the tax bills stated that the first of two installments of the annual
tax payment was due on November 10, 2007, and that the first installment payment
would become delinquent on December 10, 2007.
{3} 	After making the installment payments, Taxpayers each filed a complaint for
property tax refund in February 2008, approximately ninety days after the November
10 due date. Pursuant to Section 7-38-40(A)(1), claims for refund must be filed as a

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civil action in district court “no later than the sixtieth day after the first installment of
the property tax for which a claim for refund is made is due[.]” 	According to
Taxpayers, the statutory time limit for filing their complaint did not begin to run until
the delinquency date.
{4} 	Asserting that the complaints were untimely, the Bernalillo County Assessor
(Assessor) moved to dismiss. 	In response, Taxpayers argued that the common
understanding among taxpayers and tax authorities is that the first installment payment
is not due until the delinquency date and, therefore, Section 7-38-40(A) (1) should be
interpreted to favor public convenience and not to prejudice the public interest.
Taxpayers further argued that if the filing time limit begins to run on the statutory due
date, the result is an unreasonably short time frame for taxpayers to file a tax refund
complaint, rendering the filing time limit unconstitutional as a violation of due
process. After hearings in each case, the district court denied the motions to dismiss,
concluding the tax refund complaints may be filed within sixty days of the
delinquency date. 	Stipulated judgments were entered in each case, which allowed
Assessor to appeal the district court determination that each complaint was timely
filed, and Assessor appealed in both cases. We consolidated the two cases since the
appeals raise an identical issue.

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II. 	DISCUSSION
A. 	Standard of Review
{5} 	We review the district court interpretation of the Property Tax Code de novo.
See Sonic Indus. v. State, 2006-NMSC-038, ¶ 7, 140 N.M. 212, 141 P.3d 1266 (stating
that questions of statutory interpretation are questions of law that are reviewed de
novo). Taxpayers also raise questions concerning the constitutionality of Section 7-
38-40, which we also review de novo. 	See Manning v. N.M. Energy, Minerals, &
Natural Res. Dep’t, 2006-NMSC-027, ¶ 9, 140 N.M. 528, 144 P.3d 87 (reviewing
constitutional question under de novo standard).
B. 	The Language of the Property Tax Code Requires a Tax Refund
Complaint to be Filed Within Sixty Days of the Statutory Due Date
{6} 	When interpreting statutes, our guiding principle is to determine and give effect
to legislative intent. Pub. Serv. Co. of N.M. v. N.M. Pub. Util. Comm’n, 1999-NMSC-
040, ¶ 18, 128 N.M. 309, 992 P.2d 860. In ascertaining the intent of the Legislature,
we are assisted by classic canons of statutory construction. Id. The first of these is
that a court is required to give effect to the statute’s language and refrain from further
interpretation when the language is clear and unambiguous. 	Sims v. Sims, 1996-
NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153; Bd. of Comm’rs of Doña Ana Cnty.
v. Las Cruces Sun-News, 2003-NMCA-102, ¶ 19, 134 N.M. 283, 76 P.3d 36 (noting

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that where language is clear, appellate courts “give the statute its plain and ordinary
meaning and refrain from further interpretation”).
{7} 	NMSA 1978, Section 7-38-38(A) (1987) provides that the first installment of
two property tax payments is due on November 10 of the year in which the tax bill
was prepared and mailed. If taxpayers believe they have been excessively taxed and
want to file a tax refund complaint, Section 7-38-40(A)(1) directs: “Claims for refund
shall be filed by the property owner as a civil action in the district court . . . and shall
be filed no later than the sixtieth day after the first installment of the property tax for
which a claim for refund is made is due[.]” 	Since Section 7-38-40 clearly and
unambiguously directs that a tax refund complaint must be filed within sixty days of
the due date, the statutory time limit for filing a complaint began to run on the due
date of November 10. Taxpayers’ complaints, which were filed more than sixty days
later, were untimely under the plain language of the statute.
C. 	The Common Usage of the Word “Due” Does Not Alter the Plain Meaning
of the Statute
{8} 	Although Section 7-38-40 provides that the first installment of a tax payment
is due on November 10, NMSA 1978, Section 7-38-46 (2003) provides that the
payment does not become delinquent so as to incur a penalty for being late until thirty
days after the statutory due date or, in other words, by December 10. Taxpayers argue
that the common usage and understanding among taxpayers of their tax bill notices

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is that the first installment of the tax payment is not actually “due” until the statutory
delinquency date. To support this contention, Taxpayers cite dictionary definitions
of the word “due.” These definitions state that the word “due” means “having reached
the date at which payment is required” and “required or expected in the prescribed,
normal, 	or 	logical 	course 	of 	events.” 	Merriam-Webster 	Online 	Dictionary,
http://www.merriam-webster.com/ dictionary/due. As such, Taxpayers contend that
payment is not “required” or “due” until a penalty is to be assessed on the delinquency
date. Taxpayers assert that it is not common to believe that tax payments are “past
due” before the delinquency date and urge that we construe the word “due” with this
ordinary meaning. Tafoya v. N.M. State Police Bd., 81 N.M. 710, 714, 472 P.2d 973,
977 (1970) (stating that where there is no clearly expressed legislative intent providing
otherwise, “the word is to be given its usual, ordinary meaning”). Thus, based on the
asserted common understanding that a payment is not actually due until the date on
which a penalty will be assessed, Taxpayers contend that the statutory time limit for
filing tax refund complaints should not begin to run until one day after the
delinquency date. We disagree.
{9} 	First, Taxpayers have provided no facts or evidence to support this argument.
“It is not our practice to rely on assertions of counsel unaccompanied by support in

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the record. The mere assertions and arguments of counsel are not evidence.” Muse
v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104. 	In addition, this
common usage argument does not alter the plain language of the Property Tax Code
itself. Reading “delinquent” as synonymous with “due” does not comport with the
Legislature’s use of two, distinct statutory definitions of the two words. The “due”
date is a statutorily fixed date of November 10, and the “delinquency” date is a
separate date, thirty days later. See § 7-38-40; § 7-38-46(A). Because the legislative
intent is clear that the due date is a different date from the delinquency date, we
decline Taxpayers’ invitation to alter the most logical reading of the word “due” as it
is used in the Property Tax Code.
{10} 	Our conclusion is further supported by the way the Legislature requires tax bills
to be worded. NMSA 1978, Section 7-38-37(B) (2008), states that “[e]ach property
tax bill shall . . . contain at least the following: . . . the amount of property taxes due
on each installment, the due dates of the installments and the dates on which taxes
become delinquent[.]” 	(Emphasis added). 	As Taxpayers concede, they received
appropriately worded tax bills informing them that the first installment of their annual
tax payment was due on November 10 and that payment would become delinquent on
December 10. Therefore, it follows that if “delinquent” were meant to be one and the

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same with “due” than such a distinction between the words would not have been made
in Taxpayers’ bills as required by Section 7-38-37.
D. 	The Practical Implications of the Property Tax Code Do Not Alter the
Plain Meaning of the Statute
{11} 	NMSA 1978, Section 7-38-39 (2003) states that “[a]fter receiving his property
tax bill and after making payment prior to the delinquency date of all property taxes
due in accordance with the bill, a property owner may protest the value . . . for his
property.” Thus, it is payment that creates the right of action. Taxpayers contend that
Section 7-38-39 supports their argument that the due date of the first installment is
actually the delinquency date because to hold otherwise would have the practical
result of allowing the statutory time limit to begin to run before payment is actually
made and, thus, before the taxpayer’s cause of action for a claim for refund arises.
Thus, a taxpayer who makes payment on December 9, the day before the delinquency
date, will only have thirty days to file a tax refund complaint before the sixty-day
filing time limit expires. Taxpayers contend that such a result makes an interpretation
of Section 7-38-40, which requires the time limit for filing a tax refund complaint to
begin to run on November 10, unreasonable. Taxpayers argue that a more reasonable
reading would be that the time limit begins to run on December 10, so all taxpayers
who make payment prior to the delinquency date have the full sixty days to bring their
claims for refund. We are not persuaded.

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{12} 	Section 7-38-39 sets forth who has the right to file a complaint for a tax refund.
It provides that if a taxpayer has (1) received his or her property tax bill and (2) has
made payment prior to the delinquency date of all property taxes due in accordance
with the bill, then the taxpayer may elect to file a claim for refund. Section 7-38-40
dictates when a taxpayer may file a tax refund claim. A taxpayer cannot assert a right
to file a refund claim until making a payment before the delinquency date of the first
installment. However, the taxpayer must also abide by the separate procedural filing
deadline for filing a claim in district court within sixty days of the due date of the first
installment. 	Hence, the two sections serve different functions. 	One purpose of
Section 7-38-39 is to ensure that only taxpayers who are not delinquent in their tax
payment may file a tax refund complaint. On the other hand, Section 7-38-40 is a
statute of repose, which begins to run from the statutorily determined tax payment due
date without regard to when the tax is actually paid. 	See Garcia v. La Farge, 119
N.M. 532, 537, 893 P.2d 428, 433 (1995) (stating that “[s]tatutes of repose begin to
run from a statutorily determined time defined without regard to when the underlying
cause of action accrues and without regard to the discovery of injury or damages”).
As such, it is the nature of a statute of repose to begin to run before a cause of action
accrues in some circumstances.

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E. 	Taxpayers Must Make Payment of Property Taxes Due on the First
Installment Due Date
{13} 	In the alternative, Taxpayers argue that their complaints were timely because
a taxpayer may file a complaint any time before any delinquency date shown on the
tax bill. 	Since their tax bills stated that the second installment of the annual tax
payment was not delinquent until April 10, they assert that their complaints were
timely filed because the complaints were filed prior to April 10. 	They base their
argument on language of Section 7-38-39 that the right to file a claim for refund arises
when payment is made “prior to the delinquency date of all property taxes due in
accordance with the bill[.]” (Emphasis added.) Therefore, Taxpayers contend that
taxpayers have until April 10 to file a complaint for refund. In essence, Taxpayers’
argument requests us to look solely at Section 7-38-39 and disregard the requirements
articulated in Section 7-38-40. 	However, we decline to do so. 	Section 7-38-40
plainly dictates that filing must take place sixty days from the first installment due
date. Therefore, a taxpayer must make payment of all property taxes due as of the
first installment due date in order to preserve his or her right to file a tax complaint.
F. 	The Sixty-Day Period for Bringing Suit Does Not Violate Due Process
{14} 	Taxpayers argue that our interpretation of Section 70-38-40 creates a time limit
for filing suit that is too short for purposes of due process under the federal and state
constitutions. Taxpayers’ main contention is that if the sixty-day time limit begins to

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run on the due date of November 10, then the statute begins to run even before the
cause of action accrues because payment, which creates the right of action, does not
become delinquent until December 10. Therefore, taxpayers will have only between
thirty and sixty days to file tax refund claims, depending on when they make their
payments.
{15} 	We agree with Taxpayers that for a statute of repose to be constitutional, the
time frame to pursue a remedy cannot be unreasonably short. See Terry v. N.M. State
Highway Comm’n, 98 N.M. 119, 122, 645 P.2d 1375, 1379 (1982) (holding that the
constitutionality of statutory time limits has “hinged on the reasonableness of the time
provided to pursue a remedy”). 	However, we do not agree that the time frame
provided in these cases is unnecessarily short.
{16} 	Taxpayers rely on Terry and Garcia to support their argument that the sixty-day
statute of repose provided in Section 7-38-40 is unreasonably short and, therefore,
violates due process. 	In Terry, the relevant statute provided that wrongful death
actions against engineers or contractors that arise out of an unsafe condition of a
physical improvement to real property must be brought within ten years of the date of
substantial completion of the improvement. 98 N.M. at 120, 645 P.2d at 1376. The
decedents in Terry were killed in a car accident on a state highway built by the
contractor and engineer defendants three months before the ten-year filing time limit

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ended. 	Id. 	Our Supreme Court held that three months was not a constitutionally
reasonable amount of time to give the plaintiffs time to pursue their claim. Id. at 123,
645 P.2d at 1379. In Garcia, our Supreme Court considered the three-year statute of
repose in the Medical Malpractice Act. 	Garcia, 119 N.M. at 534, 893 P.2d at 430.
The plaintiff’s medical malpractice cause of action arose after a cardiac arrest, which
occurred eighty-five days before the statute of repose expired. Id. at 542, 893 P.2d at
438. The court held that eighty-five days was an unreasonably short amount of time
to require the plaintiff to file his malpractice claim. Id. In both Terry and Garcia, the
due process inquiry hinged on the reasonableness of the time limit as applied to the
particular facts of those cases.
{17} 	The tax situation in this case is dissimilar. 	In both Terry and Garcia,
application of the statutes was unconstitutional because the cause of action had arisen,
or an injury had been discovered, near the expiration of the statutory time limit. We
have no such facts in this case. Moreover, unlike situations involving accidents or
illness, which are unpredictable and generally cannot be anticipated, taxpayers are
aware that they will be required to pay taxes every year on particular dates.
Furthermore, taxpayers have notice each year as of April 1 of the actual property
valuations on which their claims for refund will necessarily be based. 	See NMSA
1978, § 7-38-20(A) (2001) (“By April 1 of each year, the county assessor shall mail

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a notice to each property owner informing him of the net taxable value of his property
that has been valued for property taxation purposes by the assessor.”). Taxpayers may
pursue redress by either protesting the property valuation with the county assessor, or
electing to protest the property valuation by filing a claim for refund after payment of
taxes. See NMSA 1978, § 7-38-21(A) (2001). As such, taxpayers have notice almost
nine months in advance of the district court filing deadline and, therefore, almost nine
months in which to pursue an alternate remedy or wait to file a tax refund complaint
after payment. Thus, the time period provided in Section 7-38-40 for which to file tax
refund complaints is reasonable and does not violate due process.
III. 	CONCLUSION
{18} 	We hold that the Legislature meant for Section 7-38-40 to begin to run on the
statutory due date and that Taxpayers’ complaints for refund were untimely filed. We
therefore reverse the district court orders denying Assessor’s motions to dismiss
Taxpayers’ untimely complaints seeking claims for refund.
{19} 	IT IS SO ORDERED.
___________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

MICHAEL D. BUSTAMANTE, Judge

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