Gencon Corporation

02-16

The Taxpayer is a commercial construction company that makes its monthly CRS tax payments by automated clearing house (ACH) transfer.  The Taxpayer’s payment of its October 2001 gross receipts tax was one day late due to its employees’ failure to initiate the ACH transfer in a timely manner. As a result of the late payment, the Department assessed the Taxpayer for penalty and interest pursuant to Sections 7- 1-67 and 7-1-69 NMSA 1978. The Taxpayer protested the assessment of penalty, arguing: (1) that it was misled by an employee of the clearing house; and (2) that it has an exemplary reporting history and has always made every effort to insure that its taxes are paid on time. Held: (1) the Taxpayer’s late payment was caused by its own errors in failing to initiate the ACH transfer in time; and (2) the Legislature has not granted the Department or its hearing officer authority to waive penalty based on equitable grounds, including a taxpayer’s past reporting history. Because the Taxpayer’s failure to make timely payment of its CRS taxes was negligent, penalty was properly assessed pursuant to Section 7-1-69 NMSA 1978.  Protest denied.