March 8, 2021- Mosaic Potash Carlsbad Inc. v. New Mexico Taxation & Revenue Department, No. A-1-CA-37303

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: March 8, 2021	3
NO. A-1-CA-37231	4
PAR FIVE SERVICES, LLC,	5
Protestant-Appellee/Cross-Appellant,	6
v.	7
NEW MEXICO TAXATION & REVENUE	8
DEPARTMENT,	9
Respondent-Appellant/Cross-Appellee.	10
APPEAL FROM THE ADMINISTRATIVE HEARINGS OFFICE	11
Dee Dee Hoxie, Hearing Officer	12
and	13
No. A-1-CA-37303	14
MOSAIC POTASH CARLSBAD INC.,	15
Protestant-Appellant,	16
v.	17
NEW MEXICO TAXATION & REVENUE	18
DEPARTMENT,	19
Respondent-Appellee.	20
APPEAL FROM THE ADMINISTRATIVE HEARINGS OFFICE	21
Chris Romero, Hearing Officer	22
Court of Appeals of New Mexico
Filed 3/8/2021 1:16 PM

Sanchez, Mowrer & Desiderio, P.C.	1
Robert J. Desiderio	2
Isaac S. Emmanuel	3
Albuquerque, NM	4
Betzer, Roybal & Eisenberg, P.C.	5
Benjamin C. Roybal	6
Albuquerque, NM	7
for Appellee Par Five Energy Services, LLC and Appellant Mosaic Potash Carlsbad,	8
Inc.	9
Hector H. Balderas, Attorney General	10
Timothy J. Williams, Staff Attorney, Legal Services Bureau	11
Tonya Noonan Herring, Special Assistant Attorney General	12
Marek Grabowski, Special Assistant Attorney General	13
Santa Fe, NM	14
for New Mexico Taxation & Revenue Department	15

OPINION	1
B. ZAMORA, Judge.	2
{1} 	This opinion addresses two separate appeals.1 Mosaic Potash Carlsbad, Inc.	3
and Par Five Energy Services, LLC (collectively, Taxpayers), appeal from the	4
administrative hearing officers’ decisions upholding partial denials by the New	5
Mexico Department of Taxation and Revenue (Department) of applications for the	6
New Mexico High-Wage Jobs Tax Credit (HWJTC), NMSA 1978, § 7-9G-1 (2013,	7
amended 2019).2 The Department also appeals the hearing officer’s allowance of the	8
HWJTC for one of Par Five’s employees. The central issue in both appeals is the	9
definition and effect of the statutory term “new job” for purposes of the HWJTC.	10
We hold that a “new job” is brought into being for purposes of the HWJTC when a	11
new job position that did not previously exist is created. We affirm the findings of	12
1 Because the appeals raise substantially similar issues, we exercise our
discretion to consolidate them for decision. See Rule 12-317(B) NMRA (allowing
an appellate court to consolidate appeals for decision); accord Belen Consol. Sch.
Dist. v. Cnty. of Valencia, 2019-NMCA-044, ¶ 1, 447 P.3d 1154, cert. granted,
2019-NMCERT-___ (Nos. S-1-SC-37692, S-1-SC-37778, Aug. 9, 2019), aff’d sub
nom. Nash v. Bd. of Cnty. Comm’rs of Catron Cnty., Nos. S-1-SC-37692, S-1-SC-
37778, 	2020 	WL 	6144594, 	___-NMSC-___, 	___ 	P.3d 	___ 	(Oct. 	19, 	2020)
(consolidating appeals raising “substantially similar issues”).
2 Although the HWJTC has been amended since 2013, the parties in both
consolidated cases agree that 	the 2013 version of the statute governs these
proceedings because it was the version in force at the time Taxpayers filed their
applications for credit. All citations to the HWJTC in this opinion reference the 2013
version of the statute unless otherwise indicated.

2
the hearing officer who presided over the Mosaic case, and affirm in part and reverse	1
in part, the findings of the hearing officer who presided over the Par Five case.	2
BACKGROUND	3
I. 	The HWJTC and Departmental Methodologies	4
{2} 	The HWJTC provides an eligible employer with a tax credit for each “new	5
high-wage economic-based 	job” for 	three 	consecutive qualifying 	periods 	the	6
employer creates and fills with an eligible employee. Section 7-9G-l(D). Relevant to	7
this appeal, the Department employs two different methodologies known as the	8
“replacement analysis” and the “career path promotion analysis” to determine	9
whether Taxpayers have created a “new job” for purposes of the HWJTC. When a	10
new employee is hired, the Department utilizes the replacement analysis to	11
determine whether a “new job” has been created. In contrast, when an existing	12
employee is promoted to a different position, the Department utilizes the career path	13
promotion analysis to determine whether a “new job” has been created.	14
II. 	The Tax Protests	15
{3} 	In December 2015, Par Five filed an application for credit under the HWJTC	16
for qualifying periods occurring between January 2011 and July 2015. As relevant	17
to this appeal, the Department, employing the replacement analysis, denied the	18
HWJTC with respect to six employees over seven qualifying periods, on the basis	19
that such employees “were hired to fill preexisting jobs, not new jobs.” The hearing	20

3
officer upheld the Department’s denial.3 In addition, Par Five promoted an existing	1
employee to a higher paying position and claimed that the promotion created a “new	2
job.” Employing the career path promotion analysis, the Department denied the	3
HWJTC after determining that Par Five had not created a new position, but instead	4
had simply promoted the employee into a higher paying position. The hearing officer	5
reversed the Department’s denial, finding that there was no dispute that the	6
promotion was actually a new job and concluding that the criteria the Department	7
used under the career path promotion analysis to determine whether the position was	8
new were not supported by the HWJTC statute. Par Five appeals the hearing officer’s	9
decision and order upholding the Department’s denials of credit pursuant to the	10
replacement analysis, and the Department appeals the hearing officer’s decision and	11
order reversing the Department’s denial, pursuant to the career path promotion	12
analysis.	13
{4} 	Similarly, in December 2015 Mosaic filed an application for credit for the	14
period of January 2010 through February 2015. As relevant to this appeal, the	15
Department, applying the replacement analysis, denied the HWJTC for sixty	16
employees over ninety-two qualifying periods on the basis that the hiring of these	17
employees did not create “new jobs” because the hired employees merely filled	18
3The hearing officer found that Par Five met all other eligibility requirements
for the credits in question.

4
vacancies left by employees who had previously held the same job positions. The	1
hearing officer upheld the denial based on a finding that Mosaic had “failed to	2
substantiate that the jobs claimed were newly created[.]”4 The hearing officer also	3
rejected Mosaic’s claim that the Department mechanically denied credit for certain	4
qualifying periods based on the Department’s prior denial of a previous HWJTC	5
application submitted by Mosaic. Mosaic appeals the hearing officer’s decision and	6
order upholding the Department’s denials of credit pursuant to the replacement	7
analysis. 	In 	addition, 	Mosaic 	appeals 	the 	hearing 	officer’s 	finding 	that 	the	8
Department fully reviewed and analyzed Mosaic’s application materials and did not	9
mechanically 	deny 	credit 	for 	any 	qualifying 	periods 	claimed 	in 	the 	present	10
application based on the Department’s denial of Mosaic’s prior application.	11
DISCUSSION	12
{5} 	The parties raise the following issues on appeal: (1) Taxpayers allege that the	13
hearing officers erred in upholding the Department’s interpretation of the statutory	14
term “new job” as requiring the creation of a new position; (2) Taxpayers contend	15
that the hearing officer erred in upholding the Department’s denials of credit under	16
the replacement analysis; (3) the Department alleges that the hearing officer in the	17
Par Five case erred by finding that Par Five was entitled to the HWJTC for	18
4The hearing officer found that Mosaic met all other eligibility requirements
for the credits in question.

5
promoting one of its existing employees; and (4) Mosaic argues that substantial	1
evidence does not support the hearing officer’s denial of the HWJTC.	2
I. 	Standard of Review	3
{6} 	On 	appeal, 	a 	decision 	and 	order 	issued 	by 	a 	hearing 	officer 	for 	an	4
administrative agency will only be set aside if it is “(1) arbitrary, capricious or an	5
abuse of discretion; (2) not supported by substantial evidence in the record; or (3)	6
otherwise not in accordance with the law.” Team Specialty Prods., Inc. v. N.M. Tax’n	7
& Revenue Dep’t, 2005-NMCA-020, ¶ 8, 137 N.M. 50, 107 P.3d 4 (internal	8
quotation marks and citation omitted). We review a hearing officer’s “interpretation	9
of the statutory and regulatory language de novo.” Giant Cab, Inc. v. CT Towing,	10
Inc., 2019-NMCA-072, ¶ 6, 453 P.3d 466.	11
II. 	For Purposes of the HWJTC a “New Job” Means the Creation of a Job	12
Position That Did Not Previously Exist	13
{7} 	We begin by clarifying the definition of the statutory term “new job” for	14
purposes of the HWJTC because the parties’ competing interpretations of this term	15
underpin their contrasting positions with respect to the propriety of the replacement	16
and career path promotion analyses utilized by the Department. Taxpayers contend	17
that a “new job” is created for the purposes of the HWJTC when an employer hires	18
a new employee. In contrast, the Department argues that creating a “new job” means	19
creating a job position that did not previously exist. We agree with the Department.	20

6
{8} 	Interpretation of a statute is a question of law which an appellate court reviews	1
de novo. See Morgan Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124	2
N.M. 405, 951 P.2d 1066. In construing a statute, our primary goal is “to give effect	3
to the intent of the [L]egislature.” Dell Catalog Sales L.P. v. N.M. Tax’n & Revenue	4
Dep’t, 2009-NMCA-001, ¶ 19, 145 N.M. 419, 199 P.3d 863 (internal quotation	5
marks and citation omitted). In discerning legislative intent, “we look first to the	6
plain language of the statute, giving the words their ordinary meaning[.]” Flores v.	7
Herrera, 2016-NMSC-033, ¶ 8, 384 P.3d 1070 (internal quotation marks and	8
citation omitted). If the plain language of the statute is clear, we refrain from further	9
interpretation. Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 46, 333	10
P.3d 947 (Vigil, C.J., dissenting). “A fundamental rule of statutory construction is	11
that all provisions of a statute, together with other statutes in pari materia, must be	12
read together to ascertain the legislative intent.” Roth v. Thompson, 1992-NMSC-	13
011, ¶ 15, 113 N.M. 331, 825 P.2d 1241.	14
{9} 	The term “new high-wage economic-based job” is defined under the HWJTC	15
as “a new job created in New Mexico by an eligible employer . . . that is occupied	16
for at least forty-eight weeks of a qualifying period by an eligible employee[.]”	17
Section 7-9G-1(M)(5) (emphasis added). The term “new job” is not further defined	18
by the 2013 version of the HWJTC or by regulation. The hearing officers in both	19
cases looked to dictionary definitions to elucidate the meaning of the term. They	20

7
found that the word “new” means “recently come into being,” and that the word	1
“create” means “to bring into existence[.]” New, Black’s Law Dictionary (11th ed.	2
2019); 	Create, 	Merriam-Webster 	Online 	Dictionary, 	http://www.merriam-	3
webster.com/dictionary/create 	(last 	visited 	Feb. 	24, 	2021). 	Based 	on 	these	4
definitions, the hearing officers concluded that “a new job is one that recently came	5
into being and did not exist at an earlier time.” On appeal, Taxpayers note that the	6
hearing officers did not define the crucial term “job” within the phrase “new job.”	7
Taxpayers offer the definition “the regular work that a person does to earn money,”	8
in support of their contention that “new job” means “new employee.” Job, Cambridge Online	9
Dictionary, https://dictionary.cambridge.org/us/dictionary/english/job (last visited Feb. 24,	10
2021). Ostensibly, Taxpayers offer this definition because it specifically references a	11
“person”—implying that the “person” doing “the regular work” is an integral	12
component of what constitutes a “job.” However, “job” is also defined as “a regular	13
remunerative position,” “a specific duty, role, or function[.]” Job, Merriam-Webster	14
Online 	Dictionary, 	http://www.merriamwebster.com/dictionary/job 	(last 	visited	15
Feb. 24, 2021) (emphasis added). These latter definitions support the Department’s	16
argument that the word “job” is synonymous with the word “position.”	17
{10} 	Reading Section 7-9G-1(M)(5) together with the other provisions in the	18
HWJTC statute, we find further support for the Department’s interpretation that	19
“new job” means “new position.” See Roth, 1992-NMSC-011, ¶ 15 (instructing that	20

8
statutes are to be read together with other statutes in pari materia). Section 7-9G-	1
1(D) states the HWJTC “may be claimed by an eligible employer for each new high-	2
wage economic-based job performed for the year in which the new high-wage	3
economic-based job is created and for the three consecutive qualifying periods.”	4
(Emphasis added.) In our view, the explicit limitation allowing credit beginning “the	5
year in which the new high-wage economic-based job is created,” id., lends support	6
to the Department’s interpretation of “new job” as equivalent to “new position”; it	7
is the creation of the job position, and not the hiring of an employee, which allows	8
the taxpayer to claim the credit. Similarly, the HWJTC statute draws distinctions	9
between the creation of job positions and the hiring of employees to fill them. See,	10
e.g., § 7-9G-1(E) (providing that a new job “shall not be eligible for . . . credit . . .	11
unless the eligible employer’s total number of employees with . . . jobs . . . is at least	12
one more than the number on the day prior to the date the new high-wage economic-	13
based job was created” (emphasis added)). Reading the statute in its entirety and	14
construing the language in accordance with its plain meaning, we agree with the	15
Department and conclude that a “new job” for purposes of Section 7-9G-1(M)(5) is	16
brought into being by the creation of a new position that did not previously exist.	17

9
III. 	The Department Has the Authority to Implement the Replacement and	1
Career Path Promotion Analyses	2
{11} 	In light of our holding that creation of a “new job” requires the creation of a	3
new position that did not previously exist, we now consider whether (1) the	4
Department has the authority to implement methodologies like the career path	5
promotion and replacement analyses; and (2) whether the Department was required	6
to reduce the analyses to writing.	7
{12} 	Taxpayers argue that the Department lacks the authority to employ the	8
replacement and career path promotion analyses because the analyses create	9
arbitrary requirements and distinctions that are not found within or supported by the	10
language of the statute. We disagree. Our Supreme Court has held that an	11
administrative agency has the authority to reasonably interpret the statute which it is	12
charged with enforcing. See State ex rel. Helman v. Gallegos, 1994-NMSC-023,	13
¶ 39, 	117 	N.M. 	346, 	871 	P.2d 	1352 	(affirming 	an 	administrative 	agency’s	14
interpretation of an ambiguous statute because it was “empowered to interpret” the	15
statute). In this case, the Department is specifically charged with the “administration	16
and enforcement of . . . [the HWJTC].” See NMSA 1978, § 7-1-2(A)(16) (2019). In	17
addition, Section 7-9G-l(J) of the HWJTC provides that “an eligible employer shall	18
apply to the taxation and revenue department on forms and in the manner prescribed	19
by the department.” While we agree with Taxpayers that none of the Department’s	20
rules, regulations, or statutory authority explicitly set forth the requirements of the	21

10
replacement and career path promotion analyses, we are nevertheless persuaded by	1
the Department’s assertion that it has the authority to devise means and methods to	2
evaluate whether a taxpayer is entitled to a credit because such powers arise from	3
the statutory language by fair and necessary implication. See Howell v. Heim, 1994-	4
NMSC-103, ¶ 8, 118 N.M. 500, 882 P.2d 541 (“The agency’s authority is not limited	5
to the express powers granted by statute, but also includes those powers that arise	6
from the statutory language by fair and necessary implication.”).	7
{13} 	Taxpayers point out that the Department has not promulgated any written	8
public 	guidance, 	rules, 	or 	regulations, 	that 	set 	forth 	the 	parameters 	of 	the	9
replacement and career path promotion analyses, and argue that the Department	10
lacks the authority to interpret statutory terms without providing notice or written	11
guidance to the public. We are not persuaded. The Department’s enabling powers	12
specifically allow it to interpret a tax statute without adopting a rule or regulation	13
related to that statute. See NMSA 1978, § 9-11-6.2 (2015) (allowing the department	14
to interpret statutory law through rulings and orders as well as through instructions	15
and regulations). In addition, precedent provides that administrative agencies may	16
apply unwritten rules and methodologies so long as they are reasonably consistent	17
with their statutory mandates. See, e.g., In re Rates & Charges of US W. Commc’ns,	18
Inc., 1993-NMSC-074, ¶ 16, 116 N.M. 548, 865 P.2d 1192 (holding that the state	19
corporation commission had inherent power under its grant of authority to suspend	20

11
proceedings and retroactively defer ruling on a telephone company’s rate change	1
application even in the absence of a rule allowing the commission to take this action	2
and reasoning that the “[c]ommission should have the flexibility to apply its rules	3
and exercise its authority”); Phelps Dodge Tyrone, Inc. v. N.M. Water Quality	4
Control Comm’n, 2006-NMCA-115, ¶¶ 21-24, 140 N.M. 464, 143 P.3d 502 (holding	5
that the 	New Mexico Environment 	Department 	has 	the authority to impose	6
reasonable conditions on discharge closeout permits to meet water quality standards	7
where regulations and statutory authority do not dictate a specific method to be	8
used); Saiz v. Barham, 1983-NMCA-132, ¶ 11, 100 N.M. 596, 673 P.2d 1329	9
(holding that the medical review commission’s regular practice of mailing by	10
certified mail, final results of medical-legal panels, was neither impermissible, nor a	11
rule within the meaning of the state rules act such that it was required to be reduced	12
to writing). We decline to overturn the replacement and career path promotion	13
analyses solely because they have not been reduced to writing.5 Cf. N.M. Dep’t of	14
5Taxpayers also argue that the lack of written regulations and rules and lack
of public guidance violates the Taxpayer Bill of Rights. NMSA 1978, Section 7-1-
4.2(A) (2017) (providing that the rights afforded New Mexico taxpayers include “the
right to available public information”). While we decline to declare the replacement
analysis void pursuant to this argument, we note that agencies should strive to
provide clear and comprehensive guidance to the public. Accordingly, we adopt the
course of action taken by our Supreme Court and “strongly suggest that the
[Department] promulgate rules that set out what is required” of Taxpayers who wish
to claim the HWJTC. US W. Commc’ns, Inc., 1993-NMSC-074, ¶ 11n.1.

12
Labor v. Echostar Commc’ns Corp., 2006-NMCA-047, ¶ 14, 139 N.M. 493, 134	1
P.3d 780 (“If, when we agreed with an agency’s application of a controlling law, we	2
nevertheless rejected that application simply because the agency failed to comply	3
with required administrative procedures, then we would undermine the legal force	4
of the controlling law.” (alteration, internal quotation marks, and citation omitted)).	5
IV. 	The 	Replacement 	and 	Career 	Path 	Promotion 	Analyses 	Are 	Not	6
Unreasonable	7
{14} 	Having held that the Department had the authority to develop the replacement	8
and career path promotion analyses and was not required to reduce them to writing,	9
the only remaining inquiry is whether such analyses are reasonable. See N.M. Att’y	10
Gen. v. N.M. Pub. Regul. Comm’n, 2013-NMSC-042, ¶ 12, 309 P.3d 89 (holding	11
that an agency is not entitled to deference if its “interpretation of a law is	12
unreasonable or unlawful” (internal quotation marks and citation omitted)). We	13
examine each analysis in turn.	14
A. 	The Hearing Officers Did Not Err in Upholding the Department’s	15
Denials of Credit Under the Replacement Analysis	16
{15} 	The Department applies the replacement analysis when a taxpayer hires a new	17
employee, in order to ascertain whether the hiring of that employee created a “new	18
job,” or whether a taxpayer merely filled a vacant preexisting position. If a newly	19
hired employee is placed in the same job position as an employee that previously	20
left the company, the Department classifies that hire as a mere “replacement” of the	21

13
prior employee, rather than a newly created position or “new job.” Because an	1
eligible employer is allowed to claim the HWJTC for each new high-wage job in the	2
year the new job is created and the three consecutive qualifying periods, see Section	3
7-9G-l(D), if a position is vacated and filled by another employee, the Department	4
will allow the employer to continue to claim any remaining qualifying periods.	5
However, the Department will not allow the employer to claim a new set of four	6
qualifying periods when a new employee is hired to fill a previously vacated	7
position.	8
{16} 	With respect to Par Five, the Department denied credit for six employees over	9
seven qualifying periods, on the basis that such employees “were hired to fill	10
preexisting jobs, not new jobs.” With respect to Mosaic, the Department disallowed	11
sixty employees over ninety-two qualifying periods on the basis that the hiring of	12
these employees did not create “new jobs” because the hired employees merely filled	13
vacancies left by employees who had previously held the same job positions. The	14
hearing officers in both cases upheld the denials.	15
{17} 	Taxpayers 	contend 	that 	the 	hearing 	officers 	erred 	in 	upholding 	the	16
Department’s denials of credit under the replacement analysis because the analysis	17
is unreasonable. We start with the notion that an administrative agency has	18
“considerable discretion” in applying its statutory powers to effect the intent of the	19
Legislature as set forth by statute. See OS Farms, Inc. v. N.M. Am. Water Co., 2009-	20

14
NMCA-113, ¶ 33, 147 N.M. 221, 218 P.3d 1269 (reviewing the New Mexico Public	1
Regulation Commission’s interpretation of utility rates); see also Howell, 1994-	2
NMSC-103, ¶ 8 (“The agency’s authority is not limited to the express powers	3
granted by statute, but also includes those powers that arise from the statutory	4
language 	by 	fair 	and 	necessary 	implication.”). 	However, 	we 	recognize 	that	5
“although courts may afford a degree of deference to an agency’s interpretation of a	6
statute the agency is charged with administering, such deference does not give the	7
[Department] the authority to pour any meaning it desires into the statute.” OS	8
Farms, 	Inc., 	2009-NMCA-113, 	¶ 33 (internal 	quotation 	marks 	and 	citations	9
omitted). For this reason, an agency is not entitled to deference if its “interpretation	10
of a law is unreasonable or unlawful.” N.M. Att’y Gen., 2013-NMSC-042, ¶ 12	11
(internal quotation marks and citation omitted). Finally, we note that “tax credits are	12
strictly matters of legislative grace and are to be construed against the taxpayer.”	13
Team Specialty Prods., Inc., 2005-NMCA-020, ¶ 9 (alteration, internal quotation	14
marks, and citation omitted). In the context of deductions and exemptions, which are	15
also matters of legislative grace, see Tucson Elec. Power Co. v. Tax’n & Revenue	16
Dep’t, 2020-NMCA-011, ¶ 14, 456 P.3d 1085, we have held that such exemptions	17
or deductions “must be clearly and unambiguously expressed in the statute, and must	18
be clearly established by the taxpayer claiming the right thereto.” Pub. Serv. Co. of	19

15
N.M. v. N.M. Tax’n & Revenue Dep’t, 2007-NMCA-050, ¶ 32, 141 N.M. 520, 157	1
P.3d 85 (internal quotation marks and citation omitted).	2
{18} 	While Taxpayers contend that one consequence of the replacement analysis is	3
to prevent employers who have previously downsized from taking advantage of the	4
HWJTC when rehiring employees to fill vacated positions, we are not persuaded that	5
this consequence is averse to the legislative purpose of the HWJTC. As the	6
Department persuasively argues, the replacement analysis prevents employers “from	7
churning the HWJTC by hiring employees for new positions, receiving the HWJTC	8
for all or a portion of the four qualifying periods and then laying off employees or	9
downsizing, and later rehiring new workers in those same positions to claim the	10
credit again for another four qualifying periods.” In other words, the replacement	11
analysis is congruent with the legislative purpose of the HWJTC in that it guards	12
against potential abuse while simultaneously serving as an aid to determine whether	13
a job position is truly “new.” See § 7-9G-l(D) (explaining that the HWJTC may only	14
be “claimed by an eligible employer for each new high-wage economic-based job	15
performed for the year in which the new high-wage economic-based job is created	16
and for the three following qualifying periods” (emphasis added)). Taxpayers have	17
not shown that the Department’s use of the replacement analysis is unreasonable or	18
unlawful. See N.M. Att’y Gen., 2013-NMSC-042, ¶ 12 (holding that an agency is not	19
entitled to deference if its “interpretation of a law is unreasonable or unlawful”	20

16
(internal quotation marks and citation omitted)); Team Specialty Prods., Inc., 2005-	1
NMCA-020, ¶ 9 (“[T]ax credits are strictly matters of legislative grace and are to be	2
construed against the taxpayer.” (internal quotation marks and citation omitted)).	3
Accordingly, we hold that the replacement analysis is not unreasonable, and because	4
the Department is entitled to deference, we affirm the hearing officers’ decisions and	5
orders in both cases denying the HWJTC, pursuant to the replacement analysis.	6
B. 	The Hearing Officer Erred in Reversing the Department’s Denial of	7
Credit, Pursuant to the Career Path Promotion Analysis	8
{19} 	The Department employs the career path promotion analysis when a taxpayer	9
promotes an existing employee, to determine whether the taxpayer created a new	10
position or “new job.” The Department does not classify a job as “new” if the	11
employee is internally promoted into a higher paying position. Relevant to this	12
appeal, in determining whether a new position was created, the Department	13
considers, (1) whether the claimed promotion position was advertised to other New	14
Mexico residents using a competitive hiring and interview process; and (2) whether	15
a different eligible employee was hired to fill the position vacated by the promoted	16
employee. If these requirements are met, then the employer can claim the remaining	17
qualifying periods (if any) for the vacated position and may claim qualifying periods	18
for the promotion position.	19
{20} 	In 2011, Par Five created a new high-wage job and hired an eligible employee,	20
Travis Kelsey, as a pump operator. The Department allowed Par Five to claim the	21

17
HWJTC for the first qualifying period while Kelsey was employed as a pump	1
operator. Then Par Five promoted Kelsey to a higher-paying “service operator”	2
position and claimed that Kelsey now occupied a new high wage job and that his	3
salary was again subject to the HWJTC for four additional qualifying periods,	4
pursuant to Section 7-9G-l(D). During the protest hearing, Department auditor	5
Steven Valenzuela testified that he denied credit under the career path promotion	6
analysis with respect to Kelsey because Par Five did not establish that the claimed	7
position was a new position. First, the service operator position was not advertised	8
as a new position or made available to other New Mexicans through a competitive	9
hiring process. Further, Valenzuela testified that the taxpayer failed to submit	10
documentation to the Department confirming that an employee was hired to replace	11
Kelsey’s vacated position. The hearing officer reversed the Department’s denial of	12
credit, finding that “[t]here was no dispute that the promotion was actually a new	13
job[,]” that the Department “denied the credit as to the promotion solely because the	14
position was not publicly advertised” and that “[t]here is no requirement that a job	15
previously filled by one employee must be filled by a new employee before the first	16
employee’s movement to a new job will qualify.”6
17
6We note that the hearing officer found that the Department “denied the credit
as to the promotion solely because the position was not publicly advertised and made
available 	to 	competing 	candidates.” 	However, 	the 	record 	reflects 	that 	the
Department also determined that Kelsey’s vacated position was not filled. Par Five
contends that the position was in fact filled and cites to the contact log as evidence.

18
{21} 	On appeal, the Department alleges that the hearing officer in the Par Five case	1
erred by reversing the Department’s denial of the HWJTC under the career path	2
promotion analysis. We note again that an administrative agency has the authority	3
to reasonably interpret the statute which it is charged with enforcing, Helman, 1994-	4
NMSC-023, ¶ 39, and when an agency that is governed by a particular statute	5
construes or applies that statute, “we will accord some deference to the agency’s	6
interpretation.” N.M. Att’y Gen. v. N.M. Pub. Regul. Comm’n, 2015-NMSC-032,	7
¶ 24, 359 P.3d 133 (alterations, internal quotation marks, and citation omitted). In	8
addition, tax credits are matters of legislative grace, and accordingly Taxpayers bear	9
the burden of proving that the Department’s use of the career path promotion is	10
unreasonable. See Team Specialty Prods., Inc., 2005-NMCA-020, ¶ 9.	11
{22} 	Because the Department’s use of the career path promotion analysis is not	12
unreasonable or unlawful, we defer to it and reverse the hearing officer’s decision in	13
this regard. See N.M. Att’y Gen., 2013-NMSC-042, ¶ 11 (holding that an agency is	14
not entitled to deference if its “interpretation of a law is unreasonable or unlawful”	15
(internal quotation marks and citation omitted)). According to the Department, the	16
career path promotion analysis aims to ascertain whether a claimed “new job” is	17
The referenced communication however is an email from Par Five’s representative
attempting to convince the Department that Kelsey’s former position “was filled
almost immediately” and is not in and of itself documentation that Par Five filled the
position. In addition, Taxpayer did not provide documentation showing that the
claimed promotion position was made available to other New Mexico residents.

19
actually a new position, and to prevent employers from abusing the statutory scheme	1
to 	generate 	tax 	credit 	awards 	not 	contemplated 	by 	the 	Legislature. 	As 	the	2
Department explains, “[a]llowing employers to re-start the four-year limitation on	3
qualifying periods circumvents the limitations intended by the [L]egislature. Taken	4
to its logical conclusion, an employer could hire one new employee each qualifying	5
period, (to satisfy the headcount requirement of Section 7-9G-l(E) . . ., but then	6
‘promote’ all existing high-wage employees after claiming four qualifying periods	7
and have a continuous flow of ‘new’ high-wage jobs, but in fact have offered few	8
‘new’ jobs to New Mexico residents.” We agree that requiring Taxpayers to fill a	9
position vacated by the promoted employee is consistent with the purpose of the	10
HWJTC and with the Department’s statutory duty to determine whether a job is truly	11
new. See § 7-9G-l(B) (providing that the purpose of the HWJTC is to “provide an	12
incentive for . . . businesses to create and fill new high-wage jobs in New Mexico”).	13
Moreover, the 2019 amendment to the HWJTC clarifying that “new job” “means a	14
job that is occupied by an employee who has not been employed in New Mexico by	15
the eligible employer in the three years prior to the date of hire[,]” NMSA 1978, §	16
7-9G-1(Q)(9) (2019) (emphasis added), now explicitly prohibits taxpayers from	17
seeking credit for existing employees who are placed in alternate job positions.	18
While we acknowledge that the 2019 version of the HWJTC is not controlling in this	19
case because the statute was amended after taxpayers filed their applications for the	20

20
HWJTC, we may nevertheless infer legislative intent from such an amendment.	1
See N.M. Real Estate Comm’n v. Barger, 2012-NMCA-081, ¶ 18, 284 P.3d 1112	2
(explaining that courts may look to later amendments of statutes to aid in interpreting	3
their meaning). For the foregoing reasons, we reverse the Par Five hearing officer’s	4
decision overturning the Department’s denial under the career path promotion	5
analysis.	6
V. 	The Hearing Officer’s Finding That the Department Fully Reviewed and	7
Analyzed Mosaic’s Application Materials Is Supported by Substantial	8
Evidence	9
{23} 	Finally, we turn to Mosaic’s contention that the hearing officer’s finding that	10
the Department fully reviewed and analyzed Mosaic’s application materials is not	11
supported by substantial evidence. Mosaic contends that the narrative written by the	12
auditor who evaluated Mosaic’s application explicitly states that the auditor	13
disallowed certain credits because “they were disallowed on the prior claim.”	14
(Emphasis omitted.)	15
{24} 	“To conclude that substantial evidence exists to support an administrative	16
decision we need only find that there is credible evidence for a reasonable mind to	17
accept as adequate the result reached by the agency.” Las Cruces Pro. Fire Fighters	18
& Int’l Ass’n of Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123	19
N.M. 329, 940 P.2d 177. “The question is not whether substantial evidence exists to	20
support the opposite result, but rather whether such evidence supports the result	21

21
reached.” N.M. Tax’n & Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 20,	1
336 P.3d 436 (internal quotation marks and citation omitted). “[W]e will not	2
substitute our judgment for that of the agency; although the evidence may support	3
inconsistent findings, we will not disturb the agency’s finding if supported by	4
substantial evidence on the record as a whole.” Rodriguez v. Permian Drilling Corp.,	5
2011-NMSC-032, ¶ 7, 150 N.M. 164, 258 P.3d 443 (alteration, omission, internal	6
quotation marks, and citation omitted).	7
{25} 	The hearing officer found that “no period was mechanically denied purely	8
because it was denied in the [p]revious [a]pplication[, but i]nstead, periods were	9
denied because [Mosaic] once again failed to establish entitlement to the credit.”	10
Our review of the record confirms that finding. In 2013, the Department denied	11
Mosaic’s previous application in part because Mosaic failed to provide a complete	12
employee listing, which precluded the Department from evaluating whether the jobs	13
for which credit was claimed were newly created under the replacement analysis.	14
Mosaic and the Department eventually reached a settlement—leaving undecided, the	15
issue of whether Mosaic had established that such jobs were new within the meaning	16
of the HWJTC. Mosaic then submitted its current application in December 2015,	17
and the application was partially denied. At the 2017 hearing, auditor Joan Wittig	18
testified that with respect to the current application, the Department fully reviewed	19
the materials provided by Mosaic and denied credit either because Mosaic did not	20

22
provide any additional information from what had been provided in the previous	1
application, or alternatively, because the Department did not receive sufficiently	2
accurate new information that allowed it to determine that a given job was not new.	3
The hearing officer found that “Wittig credibly testified that the Department	4
performed a full review of the new [a]pplication, evaluating every claimed period	5
against every criteria in the statute, and that no period was mechanically denied	6
purely because it was denied in the [p]revious [a]pplication.” “It is for the trier of	7
fact to weigh the evidence, determine the credibility of witnesses, reconcile	8
inconsistent statements of the witnesses, and determine where the truth lies.” Jaynes	9
v. Wal-Mart Store No. 824, 1988-NMCA-076, ¶ 8, 107 N.M. 648, 763 P.2d 82. For	10
this reason, “[w]e will not reweigh the evidence nor substitute our judgment for that	11
of the fact[-]finder.” Clark v. Clark, 2014-NMCA-030, ¶ 26, 320 P.3d 991 (internal	12
quotation marks and citation omitted). Accordingly, we hold that the hearing	13
officer’s finding that “periods were denied because [Mosaic] once again failed to	14
establish entitlement to” the HWJTC was supported by substantial evidence and	15
therefore, affirm the hearing officer’s decision.	16
CONCLUSION	17
{26} 	We reverse the hearing officer’s decision and order in the Par Five case with	18
respect to the Department’s denial of credit under the career path promotion analysis,	19

23
but otherwise affirm. We affirm the hearing officer’s decision and order in the	1
Mosaic case.	2
{27} 	IT IS SO ORDERED.	3
_____________________________	4
BRIANA H. ZAMORA, Judge	5
WE CONCUR:	6
___________________________________	7
JENNIFER L. ATTREP, Judge	8
___________________________________	9
ZACHARY A. IVES, Judge	10