Irasema Cervantes Pettibone

15-38  

On July 7, 2015, the Taxpayer submitted a protest to the Department seeking approval for a claim for refund of 2008 personal income tax, a claim on which the Department never took any action to grant or deny.  The Taxpayer submitted her 2008 personal income tax return, which included a claim for refund, to the Department on December 24, 2012.  The Department took no action to grant or deny the claim by April 22, 2013, within 120-days of December 24, 2012.  The Taxpayer did not file a civil action or protest against the Department’s inaction by July 21, 2013, or 90-days after the Department’s failure to act and 210-days after the Taxpayer’s filing of her 2008 personal income tax return.  At some point in 2014, the Taxpayer refiled her 2008 personal income tax return.  By this point, the statute of limitations for a claim for refund of 2008 personal income tax had lapsed.  When the Department still took no action on the claim for refund, the Taxpayer then filed her protest.  The Taxpayer submitted a statement from her doctor that she had a medical condition for 12 months that prevented her from managing her financial affairs, but the statement did not specify when the condition was diagnosed.  The Taxpayer offered no explanation as to why her 2008 personal income tax return was filed on December 24, 2012.  The Taxpayer argued that since she initially filed her return within the three-year period allowed, and the Department did not inform her of her obligations to challenge its inaction, the refund should be granted.   Under Section 7-1-26(D) NMSA 1978, no refund can be granted unless the claim is made within three years of the end of the calendar year in which the tax was due, which would be December 31, 2012 in this situation.  The Taxpayer did initially file within this time but, when the Department takes no action, Section 7-1-26(B) gives the Taxpayer 90-days to file a protest or civil action when the Department takes no action within 120-days.  By taking no action, the Taxpayer abandoned her December 24, 2012 claim for refund.  The Taxpayer’s 2014 resubmission of her 2008 personal income tax return was made after the expiration of the statute of limitations, and the Department has no authority to grant a claim for refund.  The Taxpayer’s protest was denied.