TITLE
3: TAXATION
CHAPTER 1: TAX ADMINISTRATION
PART 4: FILING
3.1.4.1 ISSUING AGENCY: Taxation and Revenue Department,
Joseph M. Montoya Building, 1100 South St. Francis Drive, P.O. Box 630, Santa
Fe NM 87504-0630
[6/15/96; 3.1.4.1 NMAC - Rn, 3 NMAC 1.4.1, 12/29/00]
3.1.4.2 SCOPE: This part applies to all
taxpayers, their agents and representatives and all persons required to submit
a return or information to the taxation and revenue department under any tax,
tax act or other law administered and enforced pursuant to the Tax
Administration Act.
[6/15/96,
10/31/96; 3.1.4.2 NMAC - Rn, 3 NMAC 1.4.2, 12/29/00]
3.1.4.3 STATUTORY AUTHORITY: Section 9-11-6.2 NMSA 1978.
[6/15/96; 3.1.4.3 NMAC - Rn, 3 NMAC 1.4.3, 12/29/00]
3.1.4.4 DURATION: Permanent.
[6/15/96; 3.1.4.4 NMAC - Rn, 3 NMAC 1.4.4, 12/29/00]
3.1.4.5 EFFECTIVE DATE: 6/15/96, unless a later date is
cited at the end of a section, in which case the later date is the effective
date.
[6/15/96; 3.1.4.5 NMAC - Rn & A, 3 NMAC 1.4.5, 12/29/00]
3.1.4.6 OBJECTIVE: The objective of this part is to
interpret, exemplify, implement and enforce the provisions of the Tax
Administration Act.
[6/15/96; 3.1.4.6 NMAC - Rn, 3 NMAC 1.4.6, 12/29/00]
3.1.4.7 DEFINITIONS: As used in Part 3.1.4
NMAC, “CRS liability” means the total of state gross receipts tax due for a
period plus the amounts due for the same period for all other taxes collected
with the state gross receipts tax, such as local option gross receipts taxes,
governmental gross receipts tax, leased vehicle gross receipts tax, leased
vehicle surcharge, compensating tax and withholding tax.
[6/15/96,
6/15/98; 3.1.4.7 NMAC - Rn & A, 3 NMAC 1.4.7, 12/29/00]
3.1.4.8 FILING RETURNS - FORMS:
A. Information concerning the method of completing and
filing a return, the filing date and the due date for paying taxes administered
by the department may be found under the specific tax statutes, the secretary's
regulations thereunder, on the prescribed forms and on the instructions
accompanying the forms. Returns are considered complete and timely filed when
the requirements of these documents, including requirements on obtaining
extensions of time to file, are complied with by taxpayers.
B. Copies of return forms and instructions will be furnished
by the department to taxpayers and to those persons filing returns for the
purpose of securing refunds and rebates. The failure to receive a return form,
however, does not relieve taxpayers from their duty to report and pay taxes.
The forms and instructions may be obtained from the department and from
district offices.
[7/19/67,
11/5/85, 8/15/90, 12/13/91, 10/31/96; 3.1.4.8 NMAC -
Rn, 3 NMAC 1.4.8, 12/29/00]
3.1.4.9 THE REQUIREMENT OF A CORRECT
MAILING ADDRESS:
A. All notices, returns or applications required to be made
by the taxpayer must include the correct mailing address of the taxpayer and
the taxpayer must promptly advise the department in writing of any change in
mailing address. If the department has prescribed a form or format for
reporting a change of address, the form or format must be followed provided
that, if the required information is contained in a change of address form or
notice of the United States postal service, the United States postal service
change of address form or notice may be used in lieu of the department form.
B. If a taxpayer notifies the United States postal service
of a change in the taxpayer’s mailing address and this information is given by
the United States postal service to the department either voluntarily or upon
the department’s request, the taxpayer shall have fulfilled the taxpayer’s
obligation to notify the department of a change in mailing address. Unless the
taxpayer specifically notifies the department that the change of mailing
address does not apply to mailings from the department to the taxpayer, the
notice by the taxpayer to the United States postal service of a change in the
taxpayer’s mailing address and given by the United States postal service to the
department applies to mailings from the department.
[7/19/67,
11/5/85, 8/15/90, 10/31/96; 3.1.4.9 NMAC - Rn, 3 NMAC
1.4.9, 12/29/00; A, 12/15/11]
3.1.4.10 DUE DATES AND TIMELINESS
A. FILING RETURNS - DUE
DATE: A taxpayer becomes liable for tax as soon as the taxable event
occurs; payment is not due, however, until on and after the date established by
tax acts for the payment of tax. The statutory words “and after” used in the
preceding sentence mean that taxes remain due until paid. A taxpayer becomes
liable for interest if the tax is not paid when it becomes due. If the tax is not
paid when it becomes due or if a report is not filed when due because of
negligence of the taxpayer or taxpayer's representative, the taxpayer will also
become liable for penalty. The fact that a taxpayer has not registered as a
taxpayer is not material to the taxpayer's liability for payment of tax.
B. TIMELINESS OF
ELECTRONIC TRANSMISSIONS:
(1) Notices, returns and applications
authorized or required to be made or given by electronic transmission, are
timely if the notice, return or application is electronically transmitted to
the department and accepted on or before the last date prescribed for filing
the notice, return or application. Accordingly, the sender who relies upon the
applicability of Section 7-1-13 NMSA 1978 assumes the responsibility to provide
the department proof that the electronic transmission to the department was
initiated on or before the last date prescribed for filing the notice, return
or application.
(2) Returns required by regulation or statute
to be filed electronically shall not be considered filed until filed
electronically if filed by any means other than as specified in that regulation
or statute unless the taxpayer receives an exception or waiver to electronic
filing in writing from the department, and taxpayer will be subject to
penalties under Section 7-1-69 NMSA 1978 for a late filed return until an
electronic return is filed.
C. DETERMINATION OF
TIMELINESS:
(1) Notices, returns, applications and payments,
other than payments specified by Section 7-1-13.1 NMSA 1978, authorized or
required to be made or given by mail are timely if the postmark on the envelope
made by the United States postal service bears the date on or before the last
date prescribed for filing the notice, return or application or for making the
payment. The date affixed on an envelope by a postage meter stamp will be
considered the postmark date if it is not superseded by a postmark made by the
United States postal service. If the postmark does not bear a date on or before
the last date prescribed for filing the notice, return or application, or for
making the payment, the notice, return, application or payment will be presumed
to be late. Accordingly, the sender who relies upon the applicability of
Section 7-1-9 NMSA 1978 assumes the responsibility that the postmark will bear
a date on or before the last date prescribed for filing the notice, return or
application, or for making the payment.
(2) If a mailing is not received by the
department, the contents of the mailing are not timely. If an envelope is
improperly addressed and is returned to the sender by the post office, there
has been no timely mailing within the meaning of the statute. The postmark date
on the improperly addressed envelope will not be deemed the date of receipt by
the department.
(3) A facsimile transmittal of a notice,
return or application will be considered a timely filing of the notice, return
or application only if:
(a) the facsimile is received by the due date
for filing the notice, return or application; and
(b) the original is delivered by the due date
or, if mailed, postmarked on or before the due date.
D. ILLEGIBLE
POSTMARK:
(1) If the postmark on the envelope is not
legible and the contents are received by the department by the second business
day following the due date, filing of the return, payment or other action will
be deemed timely. If the contents are received by the department after the
second business day following the due date, the person who is required to file
notices, returns or applications, or make payments, has the burden of proving
the time when the postmark was made.
(2) The provisions of Subsection D of 3.1.4.10
NMAC apply only to actions required or permitted to be performed by mail.
(3) If the notice, return, application or
payment other than payments specified by Section 7-1-13.1 NMSA 1978 is sent or
delivered to the department by any means other than by mailing with the United
States postal service, it must be received by the department on or before the
due date for filing the notice, return or application or making the payment.
E. SATURDAY, SUNDAY OR
HOLIDAY DUE DATE:
(1) If the last date for filing notices,
returns or applications or for making payment of taxes falls on Saturday,
Sunday or a state of New Mexico or national holiday, the filing of notices,
returns and applications or the making of the payment of taxes, other than
payments specified by Section 7-1-13.1 NMSA 1978, shall be considered timely if
postmarked on the next succeeding day which is not a Saturday, Sunday or state
or national holiday.
(2) Example: The due date for taxpayers to
file gross receipts tax returns for April receipts is May 25. If May 25th is a
Saturday and the following Monday is Memorial Day, a legal holiday designated
in Section 12-5-2 NMSA 1978, the due date for filing the gross receipts tax
returns is Tuesday, May 28th. The first banking day preceding Tuesday, May 28th
is Friday, May 24th.
F. STATE OBSERVANCE OF
STATE HOLIDAY ON DAY OTHER THAN THAT DESIGNATED FOR PUBLIC OBSERVANCE:
(1) Whenever the New Mexico state government
and its employees are directed by competent authority to observe a state legal
public holiday on a day other than that specified in Section 12-5-2 NMSA 1978
for that holiday, the day upon which the holiday is observed by the New Mexico
state government is deemed to be a “legal state holiday” for the purposes of
the Tax Administration Act.
(2) Example:
Section 12-5-2 NMSA 1978 designates the third Monday in February as a
legal holiday, President's Day. Traditionally, state offices are open on the
third Monday in February and the holiday is observed by state government on the
Friday following Thanksgiving. Accordingly, when state government is closed on
the Friday after Thanksgiving in a delayed observance of President's Day, the
due date for any notices, returns, applications or payments to be made by
taxpayers on the Friday after Thanksgiving is the following Monday. For
purposes of making payment of tax in accordance with Section 7-1-13.1 NMSA 1978
in this situation, the first banking day preceding the due date is the Friday
after Thanksgiving. Because the third Monday in February is observed by the
United States postal service and by the national banks, any notices, returns,
applications or payments to be made by taxpayers on that date are due the
following day, even though state offices are open on President's Day.
G. “RECEIVED BY THE
DEPARTMENT” DEFINED:
(1) Unless the secretary by instruction or
other directive permits or requires otherwise, “received by the department” for
the purposes of Section 7-1-13.1 NMSA 1978
means received at the Santa Fe headquarters of the department during the
department's normal business hours.
(2) The secretary through instruction or other
directive may permit or require payment by check of taxes subject to the
provisions of Section 7-1-13.1 NMSA 1978 at any other location of the
department or at the location of the state fiscal agent or other agent of the
department or during times other than normal business hours of the department.
When the secretary has so permitted or required payment by check at such
locations or times, “received by the department” for the purposes of Section
7-1-13.1 NMSA 1978 includes such locations or times.
H. “BANKING DAY” DEFINED:
(1) A banking day is a day which is not a
Saturday, Sunday, national bank holiday or a day deemed by regulation of the
secretary to be a state legal holiday for purposes of making payment under
Subsection 7-1-13.1B NMSA 1978.
(2) Examples:
(a) When Memorial Day falls on Monday, May
27th, the preceding banking day is Friday, May 24th.
(b) The Wednesday immediately prior to
Thanksgiving is the first banking day preceding Thanksgiving.
I. TIMELINESS OF
ELECTRONIC PAYMENTS:
(1) Payments, other than payments specified by
Section 7-1-13.1 NMSA 1978, authorized or required to be made or given by
electronic payment, are timely if the payment is electronically transmitted to
the department and accepted, on or before the last date prescribed for making
the payment. Accordingly, the sender who relies upon the applicability of
Section 7-1-13.4 NMSA 1978 assumes the responsibility to provide the department
proof that the electronic transmission to the department was initiated on or
before the last date prescribed for making the payment.
(2)
Payments specified by Section 7-1-13.1 NMSA 1978, authorized or required
to be made or given by electronic payment, are timely if the result of the
electronic payment is that the funds are available to the state of New Mexico
on or before the last date prescribed for making the payment. The date that an
electronic payment was transmitted to the department is not an indicator of
whether the payment was timely. The sender who relies upon the applicability of
Section 7-1-13.4 NMSA 1978 assumes the responsibility that the funds were
available to the department on or before the last date prescribed for making
the payment.
[7/19/67,
9/9/71, 11/5/85, 8/15/90, 11/7/90, 12/13/91, 9/20/93, 10/31/96; 3.1.4.10 NMAC - Rn & A, 3 NMAC 1.4.10, 12/29/00;
A, 10/31/07; A, 6/30/10]
3.1.4.11 SEMIANNUAL OR QUARTERLY FILING
A. SEMIANNUAL OR
QUARTERLY REPORTING - RESOURCES EXCISE AND SEVERANCE TAXES:
(1) Persons who are liable for reporting taxes
under the Resources Excise Tax Act (Sections 7-25-1 to 7-25-9 NMSA 1978) or the
Severance Tax Act (Sections 7-26-1 to 7-26-8 NMSA 1978) and whose anticipated
aggregate tax liability for both of these taxes is less than $200 a month may
report and pay these taxes at quarterly or semiannual intervals if the taxpayer
applies for and obtains the prior approval of the secretary or secretary's
delegate. The semiannual reporting and payment intervals shall be only for the
periods of January through June and July through December of any calendar year
and the quarterly intervals shall be only for the three-month periods ending
March 31, June 30, September 30 and December 31 of any calendar year.
(2) The taxpayer may not change from one
reporting interval to another without the prior written approval of the
secretary or secretary's delegate.
(3) As a condition of approving semiannual or
quarterly reporting, the secretary may require the posting of a surety bond or
other acceptable security in an appropriate amount payable to the state of New
Mexico guaranteeing payment to the state of New Mexico of the taxpayer's tax
liability under the Resources Excise Tax Act or Severance Tax Act.
B. SEMIANNUAL OR
QUARTERLY REPORTING - CRS LIABILITY:
(1) Any taxpayer with an anticipated CRS
liability of less than $200 per month may report and pay these taxes at
quarterly or semiannual intervals if the taxpayer applies for and obtains the
prior approval of the secretary or secretary's delegate. Prior approval is also
required when a taxpayer, having received permission to file on a quarterly or
semiannual basis, wishes to change from quarterly to semiannual or semiannual
to quarterly. Quarterly reporting and payment intervals shall be only the
three-month periods ending March 31, June 30, September 30 and December 31.
Semiannual reporting and payment intervals shall be only for the reporting
periods of January through June and July through December. Approval, once
granted, applies only so long as the taxpayer’s actual average liability for
the reporting periods does not exceed $200 per month.
(2) Any taxpayer who is registered to report
and pay on a quarterly or semiannual basis and who subsequently has an average
CRS liability over any one-year period of two hundred dollars or more per month
must report and pay on a monthly basis, beginning with the first month
following the close of the last quarterly or semi-annual reporting period
within that year. In addition, when the department, upon examination of its
records, discovers a taxpayer who is registered to report and pay on a
quarterly or semiannual basis but who has an average monthly CRS liability of
two hundred dollars or more over a one-year period may withdraw its approval
and require the taxpayer to report and pay on a monthly basis, beginning with a
month selected by the department.
(3) The secretary shall furnish the necessary
forms to apply for filing tax returns at semiannual or quarterly intervals and to
change the reporting interval. A taxpayer may change from quarterly or
semiannual intervals to monthly without prior approval of the secretary or the
secretary’s delegate if the taxpayer begins monthly reporting with the first
month following the end of a quarter or semiannual period.
(4) Except as otherwise provided in Paragraphs
3.1.4.11B(2) and (3) NMAC, the taxpayer may not change from one reporting
interval to another without the prior written approval of the secretary or secretary's
delegate.
(5) As a condition of approving semiannual or
quarterly reporting, the secretary may require the posting of a surety bond or
other acceptable security in an appropriate amount payable to the state of New
Mexico guaranteeing payment to the state of New Mexico of the taxpayer's CRS
liability.
C. QUARTERLY OR
SEMIANNUAL REPORTING - WATER CONSERVATION FEE:
(1) Persons who are liable for reporting the
water conservation fee under Section 74-1-13 NMSA 1978 and whose anticipated
aggregate liability for the fee is less than $200 a month may report and pay
this fee at quarterly or semiannual intervals if the taxpayer applies for and
obtains the prior approval of the secretary or the secretary's delegate. The
semiannual reporting and payment intervals shall be only for the periods of
January through June and July through December of any calendar year. The
quarterly reporting and payment intervals shall be only for the three-month
periods ending March 31, June 30, September 30 and December 31 of any calendar
year.
(2) Persons who are liable for reporting the
water conservation fee may not change from one reporting interval to another
without the prior written approval of the secretary or the secretary's delegate
except that the person may change without prior approval from quarterly or
semiannual reporting to monthly if the person begins the monthly reporting with
either the January or July reporting period.
(3) As a condition of approving quarterly or
semiannual reporting, the secretary or the secretary's delegate may require the
posting of a security bond or other acceptable security in an appropriate
amount payable to the state of New Mexico guaranteeing payment to the state of
New Mexico of the person's water conservation fee liability.
D. FILING PERIODS FOR
ALTERNATIVE FUEL TAX DISTRIBUTORS:
(1) In anticipation that distributors who are
required to file and pay the alternative fuel excise tax will have a tax
liability of less than $200 per month, distributors are authorized to report
and pay this tax on a quarterly basis without advance approval of the
secretary. The quarterly reporting and payment intervals shall only be for the
three-month periods ending March 31, June 30, September 30 and December 31.
(2) After December 31, 1996, any distributor
reporting and paying on a quarterly basis whose alternative fuel excise tax
liability averages more than $200 per month during a calendar quarter will be
required to report and pay alternative fuel excise tax on a monthly basis.
After December 31, 1996, any distributor reporting on a monthly basis but whose
alternative fuel tax liability is less than $200 per month may report and pay
the alternative fuel excise tax on a quarterly basis if the distributor obtains
the prior approval of the secretary or the secretary's delegate.
(3) This regulation is retroactively
applicable to tax periods beginning on or after January 1, 1996.
E. QUARTERLY
REPORTING - WITHHOLDING BY FEDERAL AGENCIES: Agencies of the federal
government responsible for withholding and paying over state taxes pursuant to
federal law, the Withholding Tax Act or any voluntary agreement between the
agency and federal employees or retired federal employees may report and pay on
a quarterly basis, regardless of the dollar limitation set in Section 7-1-15
NMSA 1978 because of the provisions of the Constitution of the United States.
[5/15/70,
12/3/76, 11/5/85, 8/15/90, 6/28/91, 9/17/91, 9/20/93, 6/15/96, 10/31/96,
9/15/97, 6/15/98; 3.1.4.11 NMAC - Rn & A, 3 NMAC
1.4.11, 12/29/00]
3.1.4.12 EXTENSIONS
A. GOOD CAUSE FOR
EXTENSIONS:
(1) “Good cause” for which the secretary or
secretary's delegate may grant extensions is construed strictly. Such
extensions for no more than a total of 12 months will be granted only in
situations in which the taxpayer shows a good faith effort to comply with the
statute.
(2)
Example 1: If the taxpayer
operates a multistate business and the filing of returns for New Mexico taxes
at the statutory due date would cause the taxpayer unreasonable bookwork and
recordkeeping, an extension will be given favorable consideration by the
secretary or secretary's delegate.
(3) Example 2:
If the taxpayer is temporarily disabled because of injury or prolonged
illness and the taxpayer can show that the taxpayer is unable to procure the
services of a person to complete the taxpayer's return, an extension will be
given favorable consideration.
(4) Example 3:
If the conduct of the taxpayer's business has been substantially
impaired due to the disability of a principal officer of the taxpayer, physical
damage to the taxpayer's business or other similar impairments to the conduct
of the taxpayer's business causing the taxpayer an inability to compute taxes
before the due date, an extension of time will be given favorable
consideration.
(5) Example 4:
If the taxpayer's accountant has suddenly died or has become disabled
and unable to perform services for the taxpayer and the taxpayer can show that
the taxpayer is unable either to complete the return or to procure the services
of a person to complete the return before the due date, an extension will be
given favorable consideration.
(6) Example 5:
If the taxpayer is awaiting the outcome of a court or administrative
proceeding or the action of the internal revenue service on a federal tax
claim, an extension will be given favorable consideration provided that the
extension does not contravene the time limits established by this statute or
other New Mexico or federal statute.
B. PROCEDURE FOR OBTAINING
EXTENSIONS - PERIOD OF EXTENSION:
(1) The procedures in Subsection B of 3.1.4.12
NMAC apply only to extensions which the applicant must request; these
procedures do not apply to automatic extensions under Subsection E of 3.1.4.12
NMAC.
(2) Any taxpayer may request an extension of
time in which to file a tax return. Such a request must be in writing and must
be received by the department on or before the date that the tax is due. The
application for extension must clearly set forth:
(a) the tax or tax return to which the
extension, if granted, will apply;
(b) a clear statement of the reasons for the
requested extension; and
(c) the signature of the taxpayer or the
taxpayer's authorized representative.
(3) The extension will not be granted unless a
reason satisfactory to the secretary or secretary's delegate appears in the
request.
(4) An approved extension will ordinarily be
granted for a period of 30 days. A request for longer extensions must state the
reason why the 30 days is insufficient. Additional 30-day extensions or a
longer extension may be granted by the secretary or secretary's delegate for up
to a maximum aggregate extension of 12 months.
(5) Example 1: P is in the business of
preparing tax returns. P realizes that, because of the great volume of
business, P will be unable to complete all of P's customers' tax returns before
the due date. P submits to the secretary a request for an extension of time on
behalf of each customer whose return P is unable to complete. The request will
be denied. It is irrelevant to consider whether or not P's request states a
good cause because an extension will not be granted unless the taxpayer's
personal necessity is the basis of the request. In this case, each of the
taxpayers must request an extension and give “good cause” for this privilege.
(6) Example 2: On April 20, 20XX, T is granted
a 30-day extension for payment of March, 20XX, taxes due April 25, 20XX. On May
20, 20XX, T, showing good cause, requests a further extension of the March
taxes for 12 months. A 12-month extension will not be granted because the
payment or filing date for any tax liability may not be extended for more than
12 months after the date on which the taxes were due and no series of
extensions exceeding 12 months when aggregated will be granted to any taxpayer.
The maximum extension that could be granted to T is until April 25 of the year
following 20XX.
C. EXTENSIONS GRANTED
WHEN NO LIABILITY HAS ARISEN:
(1) An extension may be granted even though
the tax liability has not yet arisen. The following examples illustrate the
application of Subsection E of 7-1-13 NMSA 1978.
(2) Example 1:
B's business is destroyed by flood on June 1, 20XX. B, a cash-basis
taxpayer, is expecting to receive payment in July for items sold in May. In
June B requests a six-month extension for those taxes for which B will be
liable in July and which will become due August 25, 20XX. Upon a showing of
good cause, the request may be granted notwithstanding that the liability for
the tax has not yet arisen.
(3) Example 2:
Under the same facts as in Example 1, in January of the following year,
B, showing good cause, requests a further extension of the July, 20XX taxes for
a period of nine months to September 25 of the year following 20XX. The
nine-month extension will not be granted because the reporting period for any
tax liability may not be extended for an aggregate period of more than 12
months after the date the taxes were due. The maximum extension which could
have been granted was until August 25 of the year following 20XX.
D. AUTOMATIC EXTENSION
FOR REPORT OF FEDERAL FORM 990-T
INCOME: A taxpayer who is required to file a New Mexico corporate income
and franchise tax return to report taxable income from unrelated activities
included in a federal Form 990-T is hereby granted an automatic extension to
the 15th day of the fifth month following the close of the taxable year to file
a return reporting that income. Interest will accrue during the period of the
automatic extension.
E. AUTOMATIC FEDERAL
INCOME TAX EXTENSIONS - GENERAL:
(1) An automatic extension of time to file a
federal income tax return as provided in the Internal Revenue Code shall be
considered to be an approved federal extension of time and shall be sufficient
to extend the time for filing the New Mexico income tax return. If it is
necessary to submit a form to the internal revenue service to claim an
automatic extension for filing the federal income tax return, then a copy of
the federal form claiming the automatic extension for federal tax purposes
shall be attached to the taxpayer's New Mexico income tax return and shall
serve as the basis for extending the time for filing the New Mexico return to
the date of filing the federal return under the automatic extension provided by
the Internal Revenue Code. If it is not necessary to submit a form to the
internal revenue service to claim an automatic extension for filing the federal
income tax return, then the due date for filing the New Mexico income tax
return shall be extended automatically to the same date as the extension for
the federal return unless the federal extended date is more than six months
from the original due date, in which case the extended due date for the New
Mexico return shall be six months after the original due date.
(2) If the taxpayer desires additional time
beyond the automatic extension for filing the New Mexico income tax return, a
written request for the additional time must be made by the taxpayer prior to
the expiration of the extended federal date. If it is necessary to submit a
form to the internal revenue service to claim an automatic extension for filing
the federal return, then a copy of the federal form requesting the automatic
extension for filing the federal return must accompany the taxpayer's request
for additional time to file the New Mexico income tax return beyond the
extended federal date. The total combined extension for filing the New Mexico
return shall not exceed 12 months beyond the actual due date for that return.
F. INVALIDATION OF
FEDERAL EXTENSION: If an extension of time to file a federal income tax
return is invalidated for any reason for federal income tax purposes, it is
also invalidated for New Mexico income tax purposes.
G. FAILURE TO FILE,
PAY OR PROTEST BY EXTENDED DUE DATE:
(1) The term “extended due date” means:
(a) for income tax returns, the latest date to
which the due date for filing the New Mexico income tax return has been
extended by either an extension granted by the internal revenue service with
respect to the taxpayer's federal income tax return or by an extension granted
by the department; and
(b)
for all other tax returns, the latest date to which the due date for
filing the tax return has been extended by the department.
(2) A taxpayer becomes a delinquent taxpayer
if the taxpayer fails by the extended due date either to file the required
return and, if a tax is due, to pay the tax due or to protest in accordance
with Section 7-1-24 NMSA 1978 the payment or filing requirement.
H. AUTOMATIC
EXTENSION FOR CERTAIN INFORMATION RETURNS: The due date for Form 1099-MISC
or pro forma 1099-MISC information
returns that are required to be electronically filed pursuant to 3.3.5.19 NMAC
is automatically extended to the first day of April of the year following the
year for which the statement is made. This extended due date conforms to the
federal due date for electronic filings of Form 1099-MISC.
[7/19/67,
11/5/85, 3/31/86, 8/22/88, 8/15/90, 12/13/91, 9/20/93, 10/31/96; 3.1.4.12 NMAC - Rn & A, 3 NMAC 1.4.12, 12/29/00;
A, 12/30/03; A, 10/31/07; A, 6/28/13]
3.1.4.13 REPORTING
ACCORDING TO BUSINESS LOCATION
A. REPORTING ACCORDING TO
BUSINESS LOCATION - GENERAL:
(1) Any person maintaining more than one place
of business in New Mexico and reporting under one identification number is
required to report the taxable gross receipts for each location on a single
CRS-1 form. Receipts from locations in each municipality or in each county
outside a municipality where a place or places of business are maintained must
be indicated separately on the CRS-1 form.
(2) A person who maintains multiple places of
business in a single municipality or multiple places of business not within a
municipality but within a single county and who reports under one
identification number is required to combine the taxable gross receipts from
these places of business, indicating the total taxable gross receipts derived
from all locations in each municipality or county on the CRS-1 form.
(3) For persons engaged in the construction
business, “place of business” includes each place where construction is
performed.
(4) The “place of business” of a person who
has no other place of business in New Mexico, but who has sales personnel who
reside in New Mexico, includes each place where such personnel reside. Such
persons are required to report gross receipts in the manner provided in
Paragraphs (1) and (2) of Subsection A of 3.1.4.13 NMAC. The place of business of a person who has no
other place of business and does not have sales personnel who reside in New
Mexico but who does have service technicians who perform service calls in New
Mexico is “out of state”, whether the service technicians live in New Mexico or
elsewhere. For the purposes of Paragraph (4) of Subsection A of 3.1.4.13 NMAC,
a “service technician” is an employee whose primary work responsibility is the
repair, servicing and maintenance of the products sold or serviced by the
employer and whose sales activities are at most incidental.
(5) A
person who is liable for the gross receipts tax and who has no “place of
business” or resident sales personnel in New Mexico is required to indicate on
the CRS-1 form that the business location is “out-of-state”.
(6) A person is required to report receipts
for the location where the place of business is maintained even though the sale
or delivery of goods or services was not performed at or from the place of
business, except as provided in Subsection J of this section. It should be
noted, however, that each construction site, as indicated in Paragraph (3) of
Subsection A of 3.1.4.13 NMAC, is a “place of business” for this purpose.
(7) If a person has more than one place of
business in New Mexico, the department will accept, on audit, this person's
method of crediting sales to each place of business, provided the method of
crediting is in accordance with the person's regular accounting practice and
contains no obvious distortion.
(8) Example 1:
The X company maintains its only place of business in Roswell, but sends
its sales personnel to different cities in New Mexico to solicit sales and take
orders. X is not required to report its gross receipts for each municipality in
which its sales personnel are operating. X reports its gross receipts only for
Roswell because its sole place of business is Roswell.
(9) Example 2:
The Z company maintains its only place of business in Grants. It makes
deliveries in its own trucks to customers in various other cities within New
Mexico. Z is not required to report its gross receipts for each municipality in
which it makes deliveries. Z reports its gross receipts only for Grants. It is
not maintaining a place of business in municipalities outside Grants solely
because of its deliveries.
(10) Example 3:
The W furniture company maintains its only office and showroom inside
the city limits of Carrizozo. W's furniture warehouse is located outside the
Carrizozo city limits. Furniture sold by W is, for the most part, delivered
from its warehouse. W's “place of business” is in Carrizozo and it must report
all its gross receipts for that municipality, regardless of the location of its
warehouse.
(11)
Example 4: The X appliance
company maintains offices and showrooms in both Truth or Consequences and Las
Cruces. The Truth or Consequences place of business initiates a sale of a
refrigerator. The refrigerator is delivered from stock held in the Las Cruces
place of business. X's place of business to which it credits the sale will be
accepted on audit, if the crediting is in accordance with X's method of
crediting sales in its regular accounting practice and contains no obvious
distortion. If X credits the sale to its Truth or Consequences place of
business, the department will accept Truth or Consequences as the location of
the sale. The same result will occur if X credits the sale to its Las Cruces
place of business.
B. REPORTING ACCORDING TO
BUSINESS LOCATION - UTILITIES:
(1) Each municipality and the portion of each
county outside a municipality in which customers of a utility are located
constitute separate places of business. The physical location of the customer’s
premises or other place to which the utility’s product or service is delivered
to the customer is a business location of the utility.
(2) The department will accept, on audit, a
utility's method of crediting its sales to its places of business, provided the
method of crediting is based on the location of its customers as business
locations and the method of crediting contains no obvious distortion.
(3) For the purposes of 3.1.4.13 NMAC,
“utility” means a public utility or any other person selling and delivering or
causing to be delivered to the customer’s residence or place of business water
via pipeline, electricity, natural gas or propane, butane, heating oil or
similar fuel or providing cable television service, telephone service or
internet access service to the customer’s residence or place of business.
C. REPORTING BY PERSONS
ENGAGED IN THE LEASING BUSINESS: A person from out of state who is engaged
in the business of leasing as defined in Subsection E of Section 7-9-3 NMSA
1978 and who has no place of business or resident sales personnel in New Mexico
is required to indicate “out-of-state” on the CRS-1 report form and to
calculate gross receipts tax due using the tax rate for the state. An
out-of-state person engaged in the business of leasing who has a place of
business or resident sales personnel in New Mexico is required to report gross
receipts for each municipality or area within a county outside of any
municipalities in which the person maintains a place of business or resident
sales personnel. An in-state person engaged in the business of leasing with
more than one place of business is required to report gross receipts for each
municipality or area within a county outside of any municipality in which the
person maintains a place of business.
D. REPORTING TAXABLE
GROSS RECEIPTS BY A PERSON MAINTAINING A BUSINESS OUTSIDE THE BOUNDARIES OF A
MUNICIPALITY ON LAND OWNED BY THAT MUNICIPALITY: For the purpose of
distribution of the amount provided in Section 7-1-6.4 NMSA 1978, persons
maintaining a place of business outside the boundaries of a municipality on
land owned by that municipality are required to report their gross receipts for
that location. For the purpose of calculating the amount of state and local
gross receipts tax due, such persons shall use the sum of the gross receipts
tax rate for the state plus all applicable tax rates for county-imposed taxes
administered at the same time and in the same manner as the gross receipts tax.
E. ITINERANT PEDDLERS -
TEMPORARY BUSINESS LOCATIONS:
(1) An itinerant peddler is a person who sells
from a nonreserved location chosen for temporary periods on a first-come,
first-served basis. An itinerant peddler does no advertising or soliciting, has
no one employed to sell and is not employed as a salesperson.
(2) An itinerant peddler shall report taxable
gross receipts by the municipality or the area of a county outside any
municipality where the peddler maintains a place of business. If the itinerant
peddler sells from only one location, that location shall be the place of
business. If an individual peddler has no set sales location, the place of
business shall be the peddler's temporary or permanent residence within New Mexico.
(3) Example:
X occasionally places a blanket on a sidewalk in a town wherever X can
find space for the blanket and sells homemade pies. X is an itinerant peddler
because the space is not reserved specifically for X, it is chosen for
temporary periods, and X is not employed nor does X have employees.
Additionally, because X cannot be expected to be found regularly carrying on
business at the same sidewalk location every day, X's place of business, for
reporting purposes, is X's residence.
(4) Any person who pays a fee to occupy a
particular location or space for a determined period of time and who sells any
item or performs any service at that location is not an itinerant peddler and
shall report that location as a place of business.
(5) Example:
X pays fifty dollars $50.00 to rent a space for a booth for two days
during a festival. X is not an itinerant peddler because the space was
assigned, and during the festival X could normally be expected to be found
carrying on business at that place. X must therefore report the gross receipts
from sales made during the festival to the location of the space.
(6) Any person who, in advance, advertises
through print or broadcast media or otherwise represents to the public that the
person will be at a particular location for a specified period of time and who
sells property or performs service at that location shall report that location
as a place of business.
(7) Example:
X sells fish from a truck in a shopping center parking lot. X places an
advertisement in the local paper informing the public where X will be located
and the dates when X will sell fish at that location. X is not an itinerant peddler
because X advertises and solicits business, and X can normally be expected to
be found at that location during the time designated in the advertisement. The
shopping center is X's place of business and X must report all activity
occurring there to that location.
F. OBVIOUS DISTORTION:
For purposes of 3.1.4.13 NMAC, obvious distortion shall be presumed whenever
the method used to credit sales to a place of business treats similar
transactions inconsistently. Any method which intentionally credits sales to a
location with a lower combined tax rate primarily for the purpose of reducing
the taxpayer's total tax liability shall be presumed to contain obvious
distortion, shall not be allowed and may be the basis of establishing intent to
evade or defeat tax under the provisions of Section 7-1-72 NMSA 1978.
G. SPACE PROVIDED BY
CLIENT CONSTITUTES BUSINESS LOCATION:
(1) Except as provided otherwise in Paragraph
(6) of Subsection G of 3.1.4.13 NMAC, any person performing a service who occupies
space provided by the purchaser of the service being performed has established
a business location if the following conditions are present:
(a) the space is occupied by the provider of
the service for a period of six consecutive months or longer;
(b) the provider or employees of the provider
of the service are expected, by the purchaser of the services or
representatives of the purchaser, to be available at that location during established
times; and
(c) critical elements of the service are
performed at, managed or coordinated from the purchaser's location.
(2) The following indicia will be considered
in determining if the above conditions are present:
(a) the provider of the service has assigned
employees to the client's location as a condition of employment;
(b) telephone is assigned for the exclusive
use by the service provider;
(c) the space has been designated for the use
of the service provider;
(d) the space contains office furniture or
equipment furnished by either the client or the service provider for the sole
use of the service provider;
(e) the service provider is identified by
business name on a sign located in or adjacent to the provided space;
(f) the client or other persons can expect to
communicate, either in person or by telephone, with the service provider or
employees or representatives of the service provider at the space provided by
the client; and
(g) the contract between the client and the
service provider requires the client to provide space to the service provider.
(3) Any person meeting the three conditions as
evidenced by the listed indicia must report the receipts derived from the
performance of the service at the client's location to the municipality or
county in which the furnished space is located.
(4) Example 1: X has entered into a contract
to perform research and development services for the army at a location on White
Sands missile range within Doña Ana county. The term of the contract is one
year and is renewable annually. X is required by the contract to assign
employees to the project at White Sands missile base on a full-time basis. The
assigned employees consider White Sands as their place of employment. The army
furnishes X with office and shop space as well as furniture and equipment. The
space is identified as X's location by a sign containing X's business name at
the main entrance to the assigned space. A specific telephone number has been
assigned for X's exclusive use during the term of the contract. X shall report
the receipts from services performed at the White Sands location under this
contract using Doña Ana county as the location of business for gross receipts
tax purposes.
(5) Example 2: Y has entered into a
maintenance contract with a state agency to maintain and repair computer
equipment. The state agency provides storage facilities to Y for the storage of
equipment and parts which will be used by Y in the maintenance and repair of
computer equipment. Y's employees are present at the location of the state
agency only when required to repair the computers. The agency contacts Y at Y's
regular place of business to report equipment problems and to request necessary
repairs. On receipt of a request from the agency, Y dispatches an employee to
the agency's location to repair the equipment. The location of the state agency
does not constitute a separate business location for Y. Y shall report its
receipts from the state agency under this contract to the location where Y
maintains a regular place of business.
(6) The provisions of Subsection G of 3.1.4.13
NMAC do not apply when:
(a) the provider of the service is a
co-employer or joint employer with the client of the employees at the client's
location or has entered into a contract to provide temporary employees to work
at the client's facilities under the client's supervision and control; and
(b) the provider of the service has no
employees at the client's location other than employees described in
Subparagraph (a) of Paragraph (6) of Subsection G of 3.1.4.13 NMAC above.
H. REPORTING ACCORDING TO
BUSINESS LOCATION - PERSONS SUBJECT TO INTERSTATE TELECOMMUNICATIONS GROSS
RECEIPTS TAX ACT:
(1) Each municipality and the portion of each
county outside all municipalities in which customers of a person who is
engaging in an interstate telecommunications business and who is subject to the
interstate telecommunications gross receipts tax are located constitute
separate places of business. Except for commercial mobile radio service as
defined by 47 C.F.R. 20.3, the location of the person's customer is the
location of the telephone sets, other receiving devices or other points of
delivery of the interstate telecommunications service.
(2) The department will accept, on audit, the
person's method of crediting its sales to its places of business, provided the
method of crediting is based on the location of its customers as business
locations and the method of crediting contains no obvious distortion.
(3) This version of Subsection H of 3.1.4.13
NMAC applies to all interstate telecommunications gross receipts tax returns
due after January 1, 2000.
I. REPORTING
ACCORDING TO BUSINESS LOCATION - COMMERCIAL MOBILE RADIO SERVICE PROVIDERS:
For interstate telecommunications gross receipts tax returns due after January
1, 2000, each municipality and the portion of each county outside all
municipalities in which customers of the provider of a commercial mobile radio
service as defined by 47 C.F.R. 20.3 are located constitute separate places of
business. With respect to the provision of commercial mobile radio service, the
business location of a customer will be determined by the customer’s service
location. A customer’s service location is determined first by the customer’s
billing address within the licensed service area. If the customer does not have
a billing address within the licensed service area or if the customer’s billing
address is a post office box or mail-drop, then the customer’s service location
is the street or rural address of the customer’s residence or business facility
within that service area.
J. TRANSACTIONS ON
TRIBAL TERRITORY: A person selling or delivering goods or performing
services on the tribal land of a tribe or pueblo that has entered into a gross
receipts tax cooperative agreement with the state of New Mexico pursuant to
Section 9-11-12.1 NMSA 1978 is required to report those receipts based on the
tribal location of the sale or delivery of the goods or performance of the
service rather than the person’s business location.
[3/5/70,
7/6/79, 11/20/79, 4/11/83, 11/5/85, 1/4/88, 8/22/88, 12/29/89, 8/15/90, 9/3/92,
2/22/95, 10/31/96, 7/30/99, 10/29/99; 3.1.4.13 NMAC -
Rn & A, 3 NMAC 1.4.13, 12/29/00; A, 12/30/03; A, 1/17/06; A,
4/30/07; A, 12/15/11]
3.1.4.14 PRESCRIBED FORMAT OF NON-PAPER
RETURNS MUST BE FOLLOWED:
Whenever the secretary permits or requires returns to be filed electronically
or in electromagnetic media, such as tapes or disks, the return information
must be in the format prescribed by the department. Failure to follow the
prescribed format may result in non-acceptance of an attempted filing. If a
return is not accepted because of formatting errors and re-submission of the
return occurs after the due date, the return has not been timely filed.
[4/30/97; 3.1.4.14 NMAC - Rn, 3 NMAC 1.4.14, 12/29/00]
3.1.4.15 REPORTING PERIOD - PERMISSION REQUIRED FOR
USE OF NON-STANDARD “MONTH”: For purposes of reporting taxes due on a
monthly basis, the reporting period is a calendar month unless the taxpayer has
obtained the secretary's permission to use another period, such as reporting
based on standardized calendar quarters of 4 weeks, 4 weeks and 5 weeks or
thirteen months of 4 weeks. Because of complications introduced by deviations
from the calendar month reporting, the secretary may require substantial
justification before approving any significant departure from the calendar
month reporting cycle.
[12/31/97; 3.1.4.15 NMAC - Rn, 3 NMAC 1.4.15 12/29/00]
3.1.4.16 PRIVATE DELIVERY SERVICE POSTMARKS:
Delivery to a private delivery service designated by the secretary of the
treasury under 26 USCA 7502 during the time the designation is in effect will
be considered a timely mailing for purposes of the Tax Administration Act if
the date recorded or marked by the private delivery service is on or before the
date by which mailing is required. Section 3.1.4.16 NMAC applies to deliveries
to a designated private delivery service after June 30, 1999.
[8/16/99; 3.1.4.16 NMAC - Rn & A, 3 NMAC 1.4.16, 12/29/00]
3.1.4.17 APPROVED ELECTRONIC MEDIA: Department
approved electronic media includes:
A. an electronic transmission of the personal income tax
return data submitted in an approved format using a computer language
designated by the department, or
B. a paper return with a PDF 2D barcode printed on the form,
which contains the tax return information in a department approved format.
[3.1.4.17
NMAC - N, 1/31/08]
3.1.4.18 ELECTRONIC FILING:
A. This regulation is adopted pursuant to the secretary’s
authority in Section 9-11-6.4 NMSA 1978.
B. For returns due after August 1, 2010, the returns and
reports for the following taxes must be filed electronically using approved
electronic media on or before the due date of the return or report:
(1) taxes due under the Gross Receipts and
Compensating Tax Act, local options gross receipts tax acts, Leased Vehicle
Gross Receipts Tax Act, and Interstate Telecommunication Gross Receipts Tax Act
and taxes due under the Withholding Tax Act which are due at the same time as
gross receipts tax, if the taxpayer’s average monthly tax payment for this
group of taxes during the preceding calendar year equaled or exceeded twenty
thousand dollars ($20,000); and
(2) weight distance tax if the taxpayer must
pay taxes for two or more trucks.
C. For returns due after January 1, 2011, the returns for
taxes due under the Gross Receipts and Compensating Tax Act, local options gross receipts tax acts, Leased
Vehicle Gross Receipts Tax Act, and Interstate Telecommunication Gross Receipts
Tax Act and taxes due under the Withholding Tax Act which are due at the same
time as gross receipts tax, if the taxpayer’s average monthly tax payment for
this group of taxes during the preceding calendar year equaled or exceeded ten
thousand dollars ($10,000) must be filed electronically on or before the due
date of the return.
D. For returns due after July 1, 2011, the returns for taxes
due under the Gross Receipts and Compensating Tax Act, local options gross
receipts tax acts, Leased Vehicle Gross Receipts Tax Act, and Interstate
Telecommunication Gross Receipts Tax Act and taxes due under the Withholding
Tax Act which are due at the same time as gross receipts tax, if the taxpayer’s
average monthly tax liability for this group of taxes during the preceding
calendar year equaled or exceeded one thousand dollars ($1,000), must be filed
electronically on or before the due date of the return.
E. Confirmation of electronic filing of a return must
accompany payment of taxes by taxpayer.
If taxpayer does not have confirmation of electronic filing when the
taxpayer submits payment to the department, taxpayer must ensure that
taxpayer’s tax identification number is on the payment. Payments without
confirmation or tax identification number may not be properly applied to the
taxpayer’s account and interest and penalty may be assessed.
F. Once a taxpayer is required to file returns
electronically pursuant to this regulation, the taxpayer may not file future
returns by mail or any method other than electronically.
G. For the purposes of this section, “average monthly tax
payment” means the total amount of taxes paid with respect to a group of taxes
under Paragraph (1) of Subsection B, Subsection C or Subsection D of this
section during a calendar year divided by the number of months in that calendar
year containing a due date on which the taxpayer was required to pay one or
more taxes in the group.
H. A taxpayer may request an exception to the requirement of
electronic filing. The request must be in writing, addressed to the secretary
of the taxation and revenue department and must be received by the department
at least 30 days before the taxpayer’s electronic return is due. Exceptions
will be granted in writing and only upon a showing of hardship including that
there is no reasonable access to the internet in taxpayer’s community. The
taxpayer must also show a good faith effort to comply with the electronic
filing requirements before an exception will be considered. The request for an
exception must include the tax or tax return to which the exception if granted
will apply; a clear statement of the reasons for the exception; and the
signature of the taxpayer.
I. A taxpayer may be granted a waiver to the requirement of
electronic filing for a single tax return.
The request for a waiver must be in writing and received by the
department on or before the date that the tax return is due and must include
the tax or tax return to which the waiver if granted will apply, a clear
statement of the reasons for the waiver, and the signature of the taxpayer. A
waiver may be granted for the following reasons:
(1) if the taxpayer is temporarily disabled
because of injury or prolonged illness and the taxpayer can show that the
taxpayer is unable to procure the services of a person to complete the
taxpayer's return and file it electronically;
(2) if the conduct of the taxpayer's business
has been substantially impaired due to the disability of a principal officer of
the taxpayer, physical damage to the taxpayer's business or other similar
impairments to the conduct of the taxpayer's business causing the taxpayer an
inability to electronically file; or
(3) if the taxpayer's accountant or other
agent or employee who routinely electronically files for taxpayer has suddenly
died or has become disabled and unable to perform services for the taxpayer and
the taxpayer can show that the taxpayer is unable either to electronically file
the return or to procure the services of a person to electronically file the
return before the due date.
J. If a taxpayer is granted an exception or waiver, the
taxpayer must file a paper return in a timely fashion unless an extension
pursuant to 3.1.4.12 NMAC has been granted. If a paper return is not timely
filed, interest will be due even if an extension is granted.
[3.1.4.18
NMAC - N, 6/30/10; A, 1/17/12]
3.1.4.19 ELECTRONIC Filing
OF INFORMATION RETURNS AND REPORTS:
A. Annual income and withholding information returns, federal
Form 1099-MISC, pro forma 1099-MISC
or successor forms must be filed with the department using a
department-approved electronic medium if a pass-through entity has more than
fifty (50) New Mexico payees in a tax year, unless the pass-through entity
obtains an exception pursuant to Subsection C of 3.1.4.19 NMAC.
B. The annual income and withholding detail report of
pass-through entity allocable net income must be filed using a
department-approved electronic medium if the pass-through entity has more than fifty
New Mexico payees in a tax year, unless the pass-through entity obtains an
exception pursuant to Subsection C of 3.1.4.19 NMAC.
C. A taxpayer may request an exception to the requirement of
electronic filing. The request must be in writing, addressed to the secretary
of the taxation and revenue department and must be received by the department
at least thirty (30) days before the taxpayer’s electronic information return
or report is due. Exceptions will be granted in writing and only upon a showing
of hardship including that there is no reasonable access to the internet in
taxpayer’s community. The taxpayer must also show a good faith effort to comply
with the electronic filing requirements before an exception will be considered.
The request for an exception must include the information return or report to
which the exception if granted will apply; a clear statement of the reasons for
the exception; and the signature of the taxpayer.
D. If a pass-through entity is required by regulation or
statute to file information returns or reports electronically, the information
return or report shall not be considered filed until filed electronically if
filed by any means other than as specified in that regulation or statute.
[3.1.4.19
NMAC - N, 6/28/13]
HISTORY
OF 3.1.4 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the State Records Center:
BOR
67-1, Tax Administration Act, 7/19/67, filed 7/28/67.
R.D./OGAD
Rule No. 1985, Regulations Pertaining to the Tax Administration Act, filed
11/5/85.
TRD Rule
TA-90, Regulations Pertaining to the Tax Administration Act, Sections 7-1-1 to
7-1-82 NMSA 1978, filed 8/15/90.
History
of Repealed Material: [RESERVED]
NMAC
History:
3 NMAC
1.4, Tax Administration - Filing, filed 6/3/96.
3.1.4
NMAC, Tax Administration - Filing, filed 12/15/2000.
