Fenner v. NM Taxation & Revenue Dep't
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 KEVIN DARRELL FENNER, 3 Protestant/Taxpayer-Appellant, 4 v. NO. 34,365 5 NEW MEXICO TAXATION & REVENUE 6 DEPARTMENT, 7 8 9 10 11 12 Respondent-Appellee. IN THE MATTER OF THE PROTEST OF KEVIN DARRELL FENNER TO ASSESSMENTS ISSUED UNDER ID#S: l0330070480, L1614874064, L0421194192, L1672247760, L1263204816, L1583610320, and L1321327232. 13 APPEAL FROM THE ADMINISTRATIVE HEARING OF THE TAXATION 14 & REVENUE DEPARTMENT OF THE STATE OF NEW MEXICO 15 Dee Dee Hoxie, Hearing Officer 16 Kevin Fenner 17 Kamuela, HI 18 Pro Se Appellant 19 New Mexico Taxation & Revenue Legal Services Bureau 20 Cordelia Anna Friedman, Special Assistant Attorney General 21 Santa Fe, NM 1 for Appellee 2 1 MEMORANDUM OPINION 2 VIGIL, Chief Judge. 3 {1} Appellant Kevin Fenner (Taxpayer) appeals in a self-represented capacity from 4 the hearing officer’s order affirming Appellee New Mexico Taxation and Revenue 5 Department’s (the Department) assessments of personal income taxes and penalties 6 for unpaid past tax years based on the determination that Taxpayer was a New 7 Mexico resident for those tax years and willfully evaded paying taxes. [RP 54] Our 8 notice proposed to affirm, and Taxpayer filed a memorandum in opposition and 9 motion to amend the docketing statement. We grant Taxpayer’s motion to amend, but 10 remain unpersuaded by Taxpayer’s arguments. We therefore affirm. Taxpayer’s 11 “amended memorandum in opposition to proposed summary disposition” is denied, 12 as our rules do not contemplate amendments to a memorandum in opposition. Even 13 if they did, however, the amended memorandum in opposition does not provide new 14 information or otherwise persuade us that reversal is merited. 15 {2} Taxpayer continues to argue: that he was not a legal New Mexico resident for 16 the 2003, 2005, 2006, 2007, 2008, 2009, and 2010 tax years for purposes of tax 17 liability [DS 11, 24; RP 68-74; MIO 5]; that he was wrongfully assessed penalties 18 based on willful intent to evade or defeat taxes for most of the disputed tax years [DS 3 1 25, 28; RP 75-79; MIO 8]; that his assessments were improper because they were not 2 made within three years of when the taxes were due [DS 27; RP 80; MIO 11]; that the 3 assessments, penalties, and interest were inaccurate as related to his federal tax 4 returns [DS 28; MIO 13]; that the Department waited too long to schedule a hearing 5 after Taxpayer filed a protest [DS 31-32; RP 81; MIO 13]; and that the hearing officer 6 made some improper evidentiary rulings relating to the admission of the Department’s 7 exhibits and admission of testimony. [DS 24; MIO 13] 8 {3} In response to our notice’s extensive discussion and proposed affirmance for 9 all of the foregoing issues, Taxpayer asserts generally that this Court misunderstood 10 or overlooked relevant facts and/or law, and for his continued argument for each issue 11 states the following: 12 13 14 15 16 These [facts or laws] are detailed in A: Facts Overlooked or Misunderstood by Court of Appeals; “EXHIBIT A” to this Memorandum; the Protestant/Taxpayer-Appellant Exhibits to the Record Proper; and the initial Docketing Statement. In addition, the Amended Docketing Statement will present other laws relevant to this issue. 17 As provided by Taxpayer, the referenced Exhibit A [Ct.App.File, green clip] is a copy 18 of his testimony that he provided to the Hearing Officer and read into the hearing 19 record. [MIO 3-4] We have fully considered the information provided in Exhibit A 20 when granting Taxpayer’s motion to amend, but it does not persuade us that our 21 proposed affirmance is incorrect. In doing so, we note that much of the same 4 1 information provided in Exhibit A was also referenced in Taxpayer’s closing 2 argument [RP 98-107], as well as set forth in the many exhibits introduced below, and 3 is generally duplicative of information in the docketing statement. Any additional 4 information does not persuade us that the hearing officer’s assessments are improper. 5 See generally Kewanee Indus., Inc. v. Reese, 1993-NMSC-006, ¶ 6, 114 N.M. 784, 6 845 P.2d 1238 (“If more than one inference can be drawn from the evidence[,] then 7 the inference drawn by the hearing officer is conclusive.”). Thus, for the reasons 8 extensively detailed in our initial notice, we affirm. 9 {4} IT IS SO ORDERED. 10 11 ______________________________ MICHAEL E. VIGIL, Chief Judge 12 WE CONCUR: 13 _________________________________ 14 MICHAEL D. BUSTAMANTE, Judge 15 _________________________________ 16 TIMOTHY L. GARCIA, Judge 5
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