A. Every employer who deducts and withholds a portion of an employee's wages for payment of income tax under the provisions of the Internal Revenue Code shall deduct and withhold an amount for each payroll period computed from a state withholding tax table furnished by the department; provided:

(1) if the employee instructs the employer to withhold a greater amount, the employer shall deduct and withhold the greater amount;

(2) if the employee is not a resident of New Mexico and is to perform services in New Mexico for fifteen or fewer days cumulatively during the calendar year, the employer is not required to deduct and withhold an amount from that employee's wages; and

(3) if the aggregate monthly amount withheld under this section would be less than one dollar ($1.00) for an employee, the employer shall not be required to deduct and withhold wages in regard to that employee.

B. The department shall devise and furnish a state withholding tax table based on statutes made and provided to employers required to withhold amounts under this section. This table shall be devised to provide for a yearly aggregate withholding that will approximate the state income tax liability of average taxpayers in each exemption category.

C. If an individual requests in writing that the payor deduct and withhold an amount from the amount of the pension or annuity due the individual, the payor making payment of a pension or annuity to an individual domiciled in New Mexico shall deduct and withhold the amount requested to be deducted and withheld, provided that the payor is not required to deduct and withhold any amount less than ten dollars ($10.00) per payment. The written request shall include the payee's name, current address, taxpayer identification number and, if applicable, the contract, policy or account number to which the request applies.

D. Every person in New Mexico who is required by the provisions of the Internal Revenue Code to deduct and withhold federal tax from payment of winnings that are subject to withholding shall deduct and withhold from such payment a tax in an amount equal to six percent of the winnings, except that an Indian nation, tribe or pueblo or an agency, department, subdivision or instrumentality thereof is not required to deduct or withhold from payments made to members or spouses of members of that Indian nation, tribe or pueblo.

History: 1953 Comp., § 72-15-51, enacted by Laws 1961, ch. 243, § 3; 1990, ch. 64, § 2; 1995, ch. 11, § 9; 1996, ch. 16, § 4.

Cross references. — For the Internal Revenue Code, see 26 U.S.C. § 1 et seq.

The 1996 amendment, effective April 1, 1996, added Subsection D.

The 1995 amendment, effective July 1, 1995, designated the first sentence of Subsection A as Paragraph A(1) and added Paragraphs A(2) and A(3); designated the former second sentence of Subsection A as Subsection B and deleted a proviso at the end thereof which read "Provided that if that aggregate monthly amount withheld under this section would be less one dollar ($1.00) for an employee, the employer shall not be required to deduct and withhold wages in regard to that employee"; and redesignated former Subsection B as Subsection C and made a stylistic change therein.

The 1990 amendment, effective July 1, 1990, designated the former section as Subsection A; added Subsection B; and, in present Subsection A, substituted "department, provided that, if the employee instructs the employer to withhold a greater amount, the employer shall deduct and withhold the greater amount" for "bureau of revenue" at the end of the first sentence, substituted "department" for "bureau" in the second sentence, and substituted "one dollar ($1.00)" for "fifty cents ($.50)" in the fourth sentence.

New Mexico may not tax income and gross receipts of Indians residing on reservation when the income and gross receipts involved are derived solely from activities within the reservation. Hunt v. O'Cheskey, 1973-NMCA-026, 85 N.M. 381, 512 P.2d 954, cert. quashed, 85 N.M. 388, 512 P.2d 961. See also case notes to 7-2-3 NMSA 1978.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 71 Am. Jur. 2d State and Local Taxation § 602.

85 C.J.S. Taxation §§ 1701 to 1705, 1721 to 1735.