The Taxpayer, a provider of health care insurance services, filed the protest in response to the Department’s denial of its claim for refund of insurance premium tax in 2019. The Department explained that the refund had been denied because the medical insurance pool credit the Taxpayer claimed was more than the amount of its insurance premium tax due in that year and because the credit could not be refunded but only applied to tax due. The Department made this determination relying on guidance found in a bulletin issued by the Superintendent of Insurance, which had previously administered insurance premium tax. The Office of the Superintendent of Insurance had, however, issued other bulletins that had reversed this guidance. The Taxpayer presented evidence showing how it had claimed the credit in 2018 and 2019 consistent with the New Mexico medical insurance pool assessments it had paid. In examining the statute, the Hearing Officer determined that the credit was based entirely on a percentage of the insurer’s medical insurance pool assessments and that the statute stated nothing about restricting the amount of the credit based on the amount of premium tax liability. The bulletin the Office of the Superintendent of Insurance had issued, and which the Department had relied upon in its decision to deny the credit, added requirements that did not exist in law. The role of a bulletin was to explain and interpret what was stated in the statute and could not create new law. Based on the statute, and the agency’s history of administering the credit, there was also nothing to suggest that the credit could not be refunded when there was an overpayment. This having been decided, the protest was granted, and the Hearing Officer ordered the refunds for both years paid.
