2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 9 - Fraud Against Taxpayers Act
Section 44-9-12 - Limitation of actions; estoppel; standard of proof.

A. A civil action pursuant to the Fraud Against Taxpayers Act may be brought at any time. A civil action pursuant to the Fraud Against Taxpayers Act may be brought for conduct that occurred prior to the effective date of that act, but not for conduct that occurred prior to July 1, 1987.

B. Notwithstanding any other provision of law, a final judgment rendered in a criminal proceeding charging fraud or false statement, whether upon a guilty verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of a fraud against taxpayers action where the criminal proceeding concerns the same transaction that is the subject of the fraud against taxpayers action.

C. In an action brought pursuant to the Fraud Against Taxpayers Act, the state or political subdivision or the qui tam plaintiff shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

History: Laws 2007, ch. 40, § 12; 2015, ch. 128, § 10.

The 2015 amendment, effective June 19, 2015, included political subdivisions in the provision relating to the burden of proof and the standard of proof in civil actions brought pursuant to the Fraud Against Taxpayers Act; and in Subsection C, after "the state", added "or political subdivision".

The Fraud Against Taxpayers Act is predominantly remedial in nature. — The Fraud Against Taxpayers Act (FATA), 49-9-1 NMSA 1978 et seq., is predominantly remedial in nature; the specific legislative designation of FATA proceedings and penalties as "civil" indicate that the legislature intended to craft a civil statute, and not a single section of FATA specifies or punishes criminal conduct; the civil penalties and treble damages under FATA are predominantly compensatory and serve remedial purposes by encouraging qui tam plaintiffs to expose fraud and corruption in state government and by offsetting the costs incurred by the government. State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2015-NMSC-025, aff'g in part, rev'g in part, 2013-NMCA-043, 297 P.3d 357.

The retroactive application of the Fraud Against Taxpayers Act is constitutional. — Because the treble damages under The Fraud Against Taxpayers Act (FATA), 44-9-1 NMSA 1978 et seq., are predominantly compensatory and remedial in nature, they do not violate the ex post facto clause of the United States constitution or the New Mexico constitution and may be applied retroactively. The New Mexico supreme court declined to determine whether the civil penalties under FATA, although they possess predominantly compensatory purposes, may be applied retroactively because the district court had not yet awarded a definitive civil penalty. State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2015-NMSC-025, aff'g in part, rev'g in part, 2013-NMCA-043, 297 P.3d 357.

The Fraud Against Taxpayers Act is penal in nature. — The Fraud Against Taxpayers Act, Section 44-9-1 NMSA 1978 et seq., is penal in nature because the treble damages provision of the act has historically been regarded as punishment; a finding of scienter is an element of a violation of the act; the damages available to a plaintiff under the act involved promote retribution and deterrence, the traditional aims of punishment; the behavior sanctioned by the act is already considered a crime; and the penalty for a violation of the act is excessive when compared with its alternative regulatory and remedial purpose. State ex rel. Foy v. Austin Capital Mgmt. Ltd., 2013-NMCA-043, 297 P.3d 357, cert. granted, 2013-NMCERT-003.

Retroactive application the Fraud Against Taxpayers Act, Section 44-9-1 NMSA 1978 et seq., violates the ex post facto clause of the United States constitution and the New Mexico constitution because the act is punitive in nature and the qui tam component of the act created a new cause of action that is subject to the retroactivity prohibitions of the ex post facto clause. State ex rel. Foy v. Austin Capital Mgmt. Ltd., 2013-NMCA-043, 297 P.3d 357, cert. granted, 2013-NMCERT-003.

The retroactivity provision of the Fraud Against Taxpayers Act is severable. — The retroactivity provision in Subsection A of Section 44-9-12 NMSA 1978 may be severed from the Fraud Against Taxpayers Act, Section 44-9-1 NMSA 1978 et seq., so that the remainder of the act remains in full force and effect as applied prospectively. State ex rel. Foy v. Austin Capital Mgmt. Ltd., 2013-NMCA-043, 297 P.3d 357, cert. granted, 2013-NMCERT-003.