Nicholas J. Drobot

04-11

The taxpayer filed a written protest to the Department’s assessment of 1999 personal income tax, claiming that he was not a New Mexico resident during 1999.  The parties engaged in discovery and the hearing officer consulted with both parties to insure that they would be available on the day set for the administrative hearing.  Shortly before the scheduled hearing, the taxpayer sent a letter to the hearing officer, stating that he would be unable to attend the hearing because he had moved back to the State of New York.  The taxpayer’s letter included various documents he asked the hearing officer to consider in deciding the taxpayer’s protest.  The taxpayer’s protest was denied based on his failure to appear.  Section 7-1-17 NMSA 1978 provides that any assessment of taxes by the Department is presumed to be correct, and it is the taxpayer’s burden to provide evidence and legal argument to establish that he is entitled to an abatement.  Unsworn statements and documents submitted by mail are not sufficient to meet this burden.  Further, Section 7-1-16 provides that a taxpayer who elects not to appear for the administrative hearing becomes a delinquent taxpayer.  By failing to appear, the taxpayer effectively abandoned his protest and forfeited his right to contest his liability for the assessment.