Kathleen Franklin

14-38

On January 13, 2014, the Department assessed the Taxpayer for personal income tax, penalty, and interest, for the tax periods ending on December 31, 2010, 2011, and 2012.  On January 31, 2014, the Taxpayer filed a formal protest to the assessments.  On February 24, 2014, the Department assessed the Taxpayer for personal income tax, penalty, and interest for the tax period ending on December 31, 2009.  The Taxpayer filed a protest to this assessment and requested that the protest be consolidated with the previously filed protest.  For the tax years in question, the Taxpayer filed timely New Mexico personal income tax returns.  For each of these years, the Taxpayer claimed the exemption for active duty armed forces pay.  The Taxpayer was working as a commissioned officer with the United States Public Health Service, and was on active duty during the tax years at issue.  The Taxpayer was relying of the advice of her accountant in claiming this exemption.  The Public Health Service does not meet the definition of “armed forces” for purposes of the exemption.  The Taxpayer is liable for the assessed personal income tax and interest.  However, the Hearing Officer found that the Taxpayer was not negligent for purposes of penalty, as she relied on the advice of her accountant in claiming the exemption.  The penalty was ordered to be abated.  The Taxpayer’s protest was granted in part and denied in part.