Stella Owens

03-07

The Taxpayer is a Texas resident employed by the United States Customs Service at the Santa Teresa Port of Entry in southern New Mexico. In February 2002, the Taxpayer filed a New Mexico personal income tax return claiming a refund of the entire amount of New Mexico personal income tax withheld by her employer. In May 2002, the Department denied the Taxpayer’s claim for refund.  The Taxpayer protested the denial, arguing that New Mexico is prohibited from taxing the wages of nonresident federal employees working within the state. Held:  In Lung v. O’Chesky, 94 N.M. 802, 617 P.2d 1317 (1980), appeal dismissed, 450 U.S. 961 (1981), the New Mexico Supreme Court upheld New Mexico’s right to tax the wages of nonresident federal employees working on federal property within the state, and this decision is binding precedent in New Mexico. The Taxpayer is deriving income from services performed for her employer within the State of New Mexico and is subject to New Mexico personal income tax on that income.  The Taxpayer is not entitled to a refund of New Mexico income tax withheld from her wages during 2001.  Protest denied.