A. In response to a written protest against an assessment, submitted in accordance with the provisions of Section 7-1-24 NMSA 1978, but before any court acquires jurisdiction of the matter, or when a "notice of assessment of taxes" is incorrect, the secretary or the secretary's delegate may abate any part of an assessment determined by the secretary or the secretary's delegate to have been incorrectly, erroneously or illegally made. An abatement in the amount of twenty thousand dollars ($20,000) or more shall be made with the prior approval of the attorney general; except that the secretary or the secretary's delegate may make abatements with respect to the Oil and Gas Severance Tax Act [Chapter 7, Article 29 NMSA 1978], the Oil and Gas Conservation Tax Act [Chapter 7, Article 30 NMSA 1978], the Oil and Gas Emergency School Tax Act [Chapter 7, Article 31 NMSA 1978], the Oil and Gas Ad Valorem Production Tax Act [Chapter 7, Article 32 NMSA 1978], the Natural Gas Processors Tax Act [Chapter 7, Article 33 NMSA 1978] or the Oil and Gas Production Equipment Ad Valorem Tax Act [Chapter 7, Article 34 NMSA 1978], abatements of gasoline tax made under Section 7-13-17 NMSA 1978 and abatements of cigarette tax made under the Cigarette Tax Act [Chapter 7, Article 12 NMSA 1978] without the prior approval of the attorney general regardless of the amount.

B. Pursuant to the final order of the district court, the court of appeals, the supreme court of New Mexico or any federal court, from which order, appeal or review is not successfully taken by the department, adjudging that any person is not required to pay any portion of tax assessed to that person, the secretary or the secretary's delegate shall cause that amount of the assessment to be abated.

C. Pursuant to a compromise of taxes agreed to by the secretary and according to the terms of the closing agreement formalizing the compromise, the secretary or the secretary's delegate shall cause the abatement of the appropriate amount of any assessment of tax.

D. The secretary or the secretary's delegate shall cause the abatement of the amount of an assessment of tax that is equal to the amount of fee paid to or retained by an out-of-state attorney or collection agency from a judgment or the amount collected by the attorney or collection agency pursuant to Section 7-1-58 NMSA 1978.

E. Records of abatements made in excess of ten thousand dollars ($10,000) shall be available for inspection by the public. The department shall keep such records for a minimum of three years from the date of the abatement.

F. In response to a timely protest pursuant to Section 7-1-24 NMSA 1978 of an assessment by the department and notwithstanding any other provision of the Tax Administration Act, the secretary or the secretary's delegate may abate that portion of an assessment of tax, including applicable penalties and interest, representing the amount of tax previously paid by another person on behalf of the taxpayer on the same transaction; provided that the requirements of equitable recoupment are met. For purposes of this subsection, the protest pursuant to Section 7-1-24 NMSA 1978 of the department's assessment may be made by the taxpayer to whom the assessment was issued or by the other person who claims to have previously paid the tax on behalf of the taxpayer.

History: 1953 Comp., § 72-13-42, enacted by Laws 1965, ch. 248, § 30; 1966, ch. 30, § 6; 1971, ch. 32, § 1; 1975, ch. 116, § 2; 1977, ch. 297, § 1; 1979, ch. 144, § 26; 1986, ch. 20, § 18; 1996, ch. 15, § 5; 2000, ch. 28, § 10; 2003, ch. 439, § 3; 2013, ch. 27, § 9.

Cross references. — For compromises of taxes and closing agreements, see 7-1-20 NMSA 1978.

The 2013 amendment, effective July 1, 2013, required the attorney general to approve only abatements of twenty thousand dollars or more; provided for abatement of tax that was paid by a person on behalf of the taxpayer; in Subsection A, in the first sentence, after "the secretary's delegate", deleted "with prior written approval of the attorney general" and added the second sentence; deleted former Paragraph (2) of Subsection A, which required attorney general approval of abatements under the General Income and Franchise Tax Act of amounts of twenty thousand dollars or more; deleted former Paragraph (3) of Subsection A, which required attorney general approval of abatements of ten thousand dollars or more; in Subsection B, after "district court", deleted "for Santa Fe county"; and added Subsection F.

The 2003 amendment, effective July 1, 2003, increased the dollar amount in Paragraph A(3) and Subsection E from $5,000 to $10,000.

The 2000 amendment, effective July 1, 2000, in the introductory paragraph of Subsection A, inserted "prior" preceding "written approval" and deleted "Notwithstanding the above, abatements of assessments incorrectly, erroneously or illegally made to one person amounting to less than five thousand dollars ($5,000) in one calendar year may be made without the prior written approval of the attorney general" preceding "except that"; substituted "Section 7-13-17" for "Sections 7-13-13 through 7-13-15" in Subsection A(1); added Subsection A(3); and deleted "or assessments" preceding "of tax" in Subsection C.

The 1996 amendment, effective July 1, 1996, added "except that:" at the end of the introductory paragraph of Subsection A and made related changes in that subsection, added Paragraphs A(1) and (2), substituted "five thousand dollars ($5,000)" for "one thousand dollars ($1,000)" in Subsection E, and made a minor stylistic change in Subsection D.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 72 Am. Jur. 2d State and Local Taxation §§ 795 to 816.

84 C.J.S. Taxation §§ 805-823; 85 C.J.S. Taxation § 1762 et seq.