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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 JACOB and JEANNE KURIYAN,

 3          Protestants-Appellants,

 4 v.                                                                                   No. 35,282

 5 NEW MEXICO TAXATION and
 6 REVENUE DEPARTMENT,

 7          Respondent-Appellee,

 8   IN THE MATTER OF THE PROTEST
 9   OF JACOB & JEANNE KURIYAN TO
10   DEPARTMENT’S DENIAL OF REFUND
11   ISSUED UNDER LETTER ID NO. L1600681936.

12 APPEAL FROM THE TAX ADMINISTRATIVE HEARINGS OFFICE
13 Brian VanDenzen, Interim Chief Hearing Officer

14   Barnett Law Firm PA
15   Colin Hunter
16   Jordy L. Stern
17   Albuquerque, NM

18 for Appellants

19 NM Department of Taxation & Revenue
20 Cordelia Anna Friedman
21 Albuquerque, NM

22 for Appellee
 1                            MEMORANDUM OPINION

 2 VIGIL, Chief Judge.

 3   {1}   Protestants Jacob and Jeanne Kuriyan appeal from the decision and order,

 4 entered by the New Mexico Taxation and Revenue Department (the Department)

 5 hearing officer on December 17, 2015. [DS 1; RP 1] In this Court’s notice of proposed

 6 disposition, we proposed to summarily affirm. Protestants filed a memorandum in

 7 opposition (MIO) and supplemental docketing statement (SDS), which we have duly

 8 considered. Remaining unpersuaded, we affirm.

 9   {2}   We note as an initial matter that the issues in Protestants’ memorandum in

10 opposition are not phrased as the same issues that were raised in Protestants’ original

11 docketing statement. Thus, to the extent Protestants have not responded to our notice

12 of proposed disposition on any of the issues raised in their docketing statement, such

13 issues are deemed abandoned. See State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M.

14 356, 758 P.2d 306 (stating that when a case is decided on the summary calendar, an

15 issue is deemed abandoned where a party fails to respond to the proposed disposition

16 of the issue).

17   {3}   Motion to Amend: We further note as a preliminary matter that, to the extent



                                              2
 1 the issues that Protestants have asserted in their memorandum in opposition were not

 2 raised in Protestants’ original docketing statement, we construe the introduction of

 3 such issues as a motion to amend the docketing statement. See Rule12-208(F) NMRA.

 4 In order for this Court to grant a motion to amend the docketing statement, the movant

 5 must meet certain criteria that establishes good cause for our allowance of such

 6 amendment. See State v. Moore, 1989-NMCA-073, ¶¶ 41–42, 109 N.M. 119, 782 P.2d

 7 91, overruled on other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M.

 8 537, 817 P.2d 730; State v. Rael, 1983-NMCA-081, ¶¶ 15–16, 100 N.M. 193, 668

 9 P.2d 309. “The essential requirements to show good cause for our allowance of an

10 amendment to an appellant’s docketing statement are that (1) the motion be timely,

11 (2) the new issue sought to be raised was either (a) properly preserved below or (b)

12 allowed to be raised for the first time on appeal, and (3) the issues raised are viable.”

13 Moore, 1989-NMCA-073, ¶ 42. For the reasons discussed below, we are unpersuaded

14 by Protestants’ arguments regarding equitable estoppel and due process and thus

15 consider such issues non-viable. See id. ¶¶ 42–43. As such, we deny Protestants’

16 motion to amend.

17   {4}   Equitable Estoppel: In their memorandum in opposition, Protestants argue that

18 the Department “should have been equitably estopped from arguing that [Protestants]

19 missed the 210-day deadline with which to file a civil action or protest the



                                               3
 1 Department’s inaction of [their] tax refund request.” [MIO 2] Protestants contend that

 2 all of the requirements for equitable estoppel have been met in the present case

 3 because (1) the Department was aware of all the facts regarding Protestants’ refund

 4 request; (2) the Department intended its conduct to be acted upon or so acted that

 5 Protestants had the right to believe it was so intended—here, that the basis for the

 6 denial was that the Department did not receive the correct form by the three-year

 7 statute of limitations deadline; (3) Protestants must have been ignorant of the true

 8 facts—here, that the basis for denial was the failure to comply with the 210-day

 9 deadline; and (4) Protestants reasonably relied on the Department’s conduct which led

10 to their injury—here, that Protestants were unaware of the 210-day deadline issue and

11 did not retain counsel to properly argue in their favor. [MIO 3–4] See Kilmer v.

12 Goodwin (In re Protest of Kilmer), 2004-NMCA-122, ¶ 27, 136 N.M. 440, 99 P.3d

13 690 (setting forth the four elements required to establish equitable estoppel against the

14 government, as indicated above).

15   {5}   The relevant facts are as follows and were identified in the hearing officer’s

16 decision and order as presented at the protest hearing through witnesses and exhibits.

17 [See RP 1] On or about October 13, 2010, Protestants submitted their 2009 New

18 Mexico PIT-1 personal income tax return and claimed a refund in overpayment of tax.

19 [RP 3 (¶¶ 15–16)] Protestants requested that a portion of their refund be applied to



                                               4
 1 their estimated 2010 personal income taxes, with the remainder to be refunded to

 2 them. [RP 3 (¶ 16)] The Department received the tax return form on October 14, 2010.

 3 [RP 3 (¶ 17)] The Department took no action to approve or deny the claim for refund

 4 by February 11, 2011, which was 120 days after Protestants’ filing. [RP 3 (¶ 18)]

 5 Protestants did not initiate a civil action in district court or file a protest with the

 6 Department by May 12, 2011, which was 210 days after the filing of their 2009 tax

 7 return. [RP 3 (¶ 19)]

 8   {6}   Nearly two years later, around April 2013, Protestants realized they had not

 9 received their requested claim for refund of their 2009 taxes, so they contacted their

10 accountant to determine what happened. [RP 4 (¶¶ 20–21)] Apparently around this

11 same time, the Department determined that it had never received Protestants’ 2008

12 income tax return and communicated that fact with Protestants’ accountant. [RP 4

13 (¶ 22)] The Department suggested at the protest hearing that its failure to take action

14 on the 2009 return stemmed from the absence of Protestants’ 2008 tax return, which

15 effectively placed Protestants’ account on hold. [RP 4 (¶ 23)] Accordingly, on April

16 17, 2013, Protestants resubmitted their 2008 personal income tax return. [RP 4 (¶ 24)]

17   {7}   Between April and November 2013, Protestants’ accountant called the

18 Department three to four times to check on the status, and he apparently received

19 verbal confirmation that all previous returns had been filed and that there were no



                                              5
 1 filing deficiencies in prior returns. [RP 4 (¶ 25)] The accountant was also never

 2 informed of the need to file an application for refund of the 2009 personal income tax.

 3 [RP 4 (¶ 25)] Sometime in December 2013, Protestants received a letter from the

 4 Department containing applications to request refunds for three separate years,

 5 including 2009. [RP 5 (¶ 26)] Protestants completed all three applications and mailed

 6 them to the Department before the end of the year. [RP 5 (¶ 27)] Protestants received

 7 refund checks for two of their applications, but did not receive a check for their

 8 application for 2009. [RP 5 (¶ 28)] The hearing officer was convinced that Protestants

 9 submitted the application for refund for 2009 before the December 31, 2013 statute

10 of limitations expired. [RP 5 (¶ 29)] See NMSA 1978, § 7-1-26(D) (2015).

11   {8}   Nonetheless, the Department took no action to approve or deny Protestants’

12 application for refund within 120 days, which would have been April 23, 2014. [RP

13 5 (¶ 30)] See § 7-1-26(B)(2), (C) (stating in pertinent part that, “[i]f the department has

14 neither granted nor denied any portion of a claim for refund within [120] days of the

15 date the claim was mailed or delivered to the department, the person may refile it

16 within the time limits set forth in Subsection D of this section or may within [90] days

17 elect to pursue one, but only one, of the remedies in Subsection C of this section,”

18 which includes commencing a civil action in district court)] Despite the Department’s

19 failure to act, Protestants did not initiate a civil action in district court or file a protest



                                                  6
 1 within 210 days, or before July 22, 2014. [RP 5 (¶ 31)] See id. (stating in pertinent

 2 part that, “[a]fter the expiration of the [210] days from the date the claim was mailed

 3 or delivered to the department, the department may not approve or disapprove the

 4 claim unless the person has pursued one of the remedies under Subsection C of this

 5 section,” which includes directing a written protest to the secretary or filing a civil

 6 action in district court). (emphasis added). Rather, it was not until January 13, 2015,

 7 that the Department denied Protestants’ claim for a refund of 2009 personal income

 8 tax, claiming as a reason that the claim was not filed within the 3-year statute of

 9 limitations. [RP 1 (¶ 1)] Thereafter, on April 9, 2015, Protestants submitted a protest

10 to the denial, and, on April 22, 2015, the Department acknowledged receipt of such

11 protest. [RP 2 (¶¶ 2–3)]

12   {9}   As acknowledged by the hearing officer, Protestants complied with the statute

13 of limitations for filing a claim for refund for their 2009 taxes. [RP 6] However, the

14 Department failed to take action on a claim for refund within 120 days from the claim.

15 [RP 6–7] In such a case, as indicated above, Section 7-1-26(B)(2) provides a taxpayer

16 90 days within which to either file a protest or commence a civil action in district

17 court. [RP 7] See § 7-1-26(B)(2). As explained by the hearing officer, “[i]n other

18 words, in the face of Department inaction, a taxpayer has 210-days from the original

19 filing date of the claim for refund to preserve their [sic] claim by either filing a protest



                                                7
 1 or a civil action.” [RP 7] See Unisys Corp. v. N.M. Taxation & Revenue Dep’t, 1994-

 2 NMCA-059, ¶ 15, 117 N.M. 609, 874 P.2d 1273 (stating that Section 7-1-26 provides

 3 the taxpayer with a method to force action and obtain a timely final resolution of the

 4 claim). If the statute of limitations had not yet run, Protestants may have also been

 5 able to file another application for refund, but it was too late to refile once the 210

 6 days had expired. See Kilmer, 2004-NMCA-122, ¶ 15 (stating that, when the

 7 Department fails to act within 120 days, “the onus [is] on [the t]axpayers . . . to either

 8 file a protest or an action in district court,” and if the taxpayers do neither, as in that

 9 case, it may be too late to refile).

10   {10}   As this Court explained in Kilmer,

11          [t]he purpose of the time deadline in Section 7-1-26 is to avoid stale
12          claims, which protects the Department’s ability to stabilize and predict,
13          with some degree of certainty, the funds it collects and manages. The
14          time deadline places the burden of maintaining an active claim on the
15          taxpayer and makes it the taxpayer’s responsibility to confront the
16          Department inaction. The [L]egislature has apparently allocated that
17          responsibility to the taxpayer because it is the taxpayer who can more
18          easily keep track of the status of a refund claim.

19 Id. ¶ 16 (emphasis added). We rejected the argument of the taxpayers in Kilmer that

20 the 90-day deadline is counted from when the Department denies the claim for refund,

21 stating that such interpretation is contrary to the plain language of the statute and

22 legislative intent. Id. ¶¶ 17–20; see also id. ¶ 21 (providing an alternative explanation

23 as to why such interpretation is untenable). We additionally held that the Department


                                                 8
 1 has no implied authority to allow claims after 210 days, explaining that “an

 2 administrative agency may not exercise authority beyond the powers that have been

 3 granted[.]” Id. ¶ 24. In the present case, the Department likewise had no authority to

 4 allow Protestants’ claim after the expiration of the 210 days. See id.

 5   {11}   We nonetheless consider Protestants’ estoppel argument. Kilmer makes clear

 6 that “[e]stoppel will not be applied against a state governmental entity unless there is

 7 a shocking degree of aggravated and overreaching conduct or where right and justice

 8 demand it.” Id. ¶ 26 (internal quotation marks and citation omitted). Indeed, “[i]n

 9 cases involving assessment and collection of taxes, the state will be held estopped

10 only rarely [and e]stoppel cannot lie against the state when the act sought would be

11 contrary to the requirements expressed by statute.” Id. (emphasis added) (internal

12 quotation marks and citation omitted). Moreover, we have not been inclined to grant

13 estoppel when the party relies on oral representations of the agency. See id. ¶ 28.

14   {12}   In Kilmer, we held that oral statements typically do not provide a basis to apply

15 estoppel against an agency and that a letter from the Department correctly explaining

16 that the denial of the application was based on the fact that the statute of limitations

17 had expired and allowing the taxpayers to protest does not provide a basis for

18 estoppel. See id. ¶¶ 42, 43; see also id. ¶¶ 28–41 (further discussion). In the present

19 case, there is evidence that Protestants’ accountant may have followed up with the



                                                9
 1 Department over the phone about the refund claim prior to the expiration of the statute

 2 of limitations and prior to Protestants’ filing their 2013 application for refund. [See

 3 RP 4 (¶ 25), 8] We agree with the hearing officer that “none of these statements arise

 4 to a promise or suggestion that the Department would approve the specific claim for

 5 refund[.]” [RP 10] Thus, like the taxpayers in Kilmer, such statements do not give rise

 6 to estoppel. See id. ¶¶ 39–40. Additionally, the Department’s letter to Protestants

 7 indicating that the denial of the 2009 refund was based on the expiration of the statute

 8 of limitations does not provide a basis for estoppel because, like in Kilmer, the

 9 Department correctly explained the basis for the denial at that time.

10   {13}   We additionally note that, also similar to the taxpayers in Kilmer, Protestants

11 were represented by an accountant. See id. ¶ 41. Although Protestants claim that they

12 were ignorant regarding the 210-day deadline, the fact that they were represented by

13 an accountant mitigates such purported ignorance. As we explained in Kilmer, the fact

14 that the accountant was “a professional, capable of performing her own research” who

15 was “able to find Section 7-1-26 and consider that Department inaction for 120 days

16 might require her to respond to the Department’s inaction,” meant that the taxpayers

17 could not rely on estoppel against the Department. See id. We explained that, in

18 balancing the equities required under the doctrine of estoppel, it was not reasonable

19 for the accountant to assume that she would not need to do anything further except



                                              10
 1 wait for the claim to be denied. See id.

 2   {14}   Accordingly, we hold that the Department was not permitted under statute to

 3 allow the refund after the expiration of the 210-day time frame had expired, and the

 4 limited oral statements made by the Department, prior to the Protestants’ 2013 filing,

 5 do not provide a basis for estoppel. Additionally, we hold that the Department’s letter

 6 of denial, which identified the statute of limitations as the basis for its denial, does not

 7 provide a basis for estoppel, particularly in light of Protestants’ representation in the

 8 matter by an accountant. Moreover, as in Kilmer, estoppel simply “cannot lie against

 9 the state when the act sought would be contrary to the requirements expressed by

10 statute.” Id. ¶ 26

11   {15}   Due Process: Protestants additionally argue in their memorandum in opposition

12 that the introduction of the 210-day deadline argument was a denial of their due

13 process rights and the New Mexico Taxpayer Bill of Rights because the taxpayer is

14 entitled to an explanation of the basis for denials of refunds. [MIO 4–5] Protestants

15 contend that the introduction of certain exhibits, coupled with the introduction of the

16 210-day deadline argument, violated their due process rights. [MIO 5] “We review the

17 constitutional claim of denial of due process de novo.” State ex rel., Children, Youth

18 & Families Dep’t v. Pamela R.D.G., 2006-NMSC-019, ¶ 10, 139 N.M. 459, 134 P.3d

19 746.



                                                11
 1   {16}   The Taxpayer Bill of Rights states, inter alia, that taxpayers have “the right to

 2 be provided with an explanation of the . . . basis for . . . denials of refunds[.]” NMSA

 3 1978, § 7-1-4.2(F) (2003). Similarly,

 4          [d]ue process requires timely notice reasonably calculated to inform the
 5          person concerning the subject and issues involved in the proceeding; a
 6          reasonable opportunity to refute or defend against a charge or accusation;
 7          a reasonable opportunity to confront and cross-examine adverse
 8          witnesses and present evidence on the charge or accusation;
 9          representation by counsel, when such representation is required by
10          constitution or statute; and a hearing before an impartial decisionmaker.

11 In re Pamela R.D.G., 2006-NMSC-019, ¶ 12 (internal quotation marks and citation

12 omitted). Protestants allege their due process rights were violated because they were

13 not provided timely notice of the subject and issues involved in the proceeding. [See

14 MIO 5–6]

15   {17}   We briefly address the exhibits first. According to the decision and order,

16 Protestants sought to exclude the Department’s exhibits of Protestants’ 2008, 2010,

17 and 2011 returns because the Department did not provide copies of such exhibits to

18 Protestants prior to the hearing. [RP 13] As the hearing officer explained, however,

19 the exhibits are Protestants own tax returns in the years surrounding the claimed

20 refund, which Protestants prepared, perhaps through an accountant, and of which

21 Protestants presumably possessed copies. [Id.] Moreover, the introduction of such

22 exhibits was not prejudicial to Protestants in light of the fact that they were only



                                               12
 1 admitted to support the Department’s contention regarding why it did not act on the

 2 2009 claim for refund. As Protestants have provided no explanation in their

 3 memorandum in opposition as to why the admission of Protestants’ own tax refunds

 4 was actually prejudicial, we find no error. See State v. Jose S., 2007-NMCA-146, ¶ 20,

 5 142 N.M. 829, 171 P.3d 768 (“In the absence of prejudice, there is no reversible

 6 error.” (internal quotation marks and citation omitted)).

 7   {18}   We therefore turn to Protestants’ argument that the introduction of the 210-day

 8 deadline argument at the hearing constitutes a violation of their due process.

 9 Protestants contend that the second factor in the balancing test from Mathews v.

10 Eldridge, 424 U.S. 319 (1976), is relevant. [MIO 6] “We weigh three factors under

11 the Mathews test: (1) the [taxpayer’s] interest, (2) the risk to the [taxpayer] of an

12 erroneous deprivation in light of the probable value of additional or substitute

13 procedures as safeguards, and (3) the government’s interest.” State ex rel Children,

14 Youth & Families Dep’t v. Steve C., 2012-NMCA-045, ¶ 13, 277 P.3d 484. We

15 therefore consider the risk to Protestants of an erroneous deprivation in light of the

16 probable value of additional or substitute procedures as safeguard. See id.

17   {19}   As acknowledged by Protestants, they were initially informed that the denial

18 of their 2009 tax refund was based on the untimeliness of their claim pursuant to

19 Section 7-1-26. [See DS 6-7; see also RP 14] As indicated above, Section 7-1-26



                                              13
 1 includes both the statute of limitations for such claims and the statutory provision that,

 2 upon the Department’s inaction on a claim for refund, if the taxpayer chooses not to

 3 refile a refund or if the time limits within which to do so have expired, a taxpayer

 4 may, within ninety days, choose to protest the inaction or file a civil action. See § 7-1-

 5 26(B)(2), (D). As such, the risk of deprivation to Protestants was relatively small

 6 based on the Department’s purported failure to reference the 210-day deadline

 7 because, not only did our Legislature allocate the responsibility of maintaining an

 8 active claim on the taxpayer, see Kilmer, 2004-NMCA-122, ¶ 16, and not only is

 9 “ignorance of the law . . . no excuse” and “[e]very person is presumed to know the

10 law,” see State v. Tower, 2002-NMCA-109, ¶ 9, 133 N.M. 32, 59 P.3d 1264,

11 overruled on other grounds by State v. Archuleta, 2015-NMCA-037, 346 P.3d 390,

12 but Protestants were specifically directed to the statute that contains the relevant

13 information. Moreover, as discussed above, Section 7-1-26 provides the Department

14 with no authority to allow Protestants’ claim after the expiration of the 210 days. See

15 Kilmer, 2004-NMCA-122, ¶ 24. As Protestants were directed to Section 7-1-26, we

16 are unpersuaded that the Department’s letter violated Protestants’ right to due process.

17   {20}   We additionally note that Protestants argue throughout their memorandum in

18 opposition that, had they been given specific notice of the 210-day deadline argument

19 prior to the protest hearing, they would have retained legal counsel to dispute the issue



                                               14
 1 and argue that the deadline did not apply in their case. [See, e.g., MIO 7] However,

 2 as discussed at length above, the Department had no express or implied authority to

 3 allow Protestants’ claim after the expiration of the 210 days and estoppel “cannot lie

 4 against the state when the act sought would be contrary to the requirements expressed

 5 by statute.” Kilmer, 2004-NMCA-122, ¶¶ 24, 26. As such, we are unpersuaded that

 6 Protestants would have been able to effectively argue against the applicability of the

 7 210-day deadline and, accordingly, “the probable value of additional or substitute

 8 procedures as safeguard” are de minimus. See Steve C., 2012-NMCA-045, ¶ 13. We

 9 therefore hold that Protestants were not denied their right to due process when the

10 Department raised the 210-day statutory deadline at the protest hearing.

11   {21}   Accordingly, for the reasons stated in our notice of proposed disposition and

12 herein, we affirm.

13   {22}   IT IS SO ORDERED.


14                                          _________________________________
15                                          MICHAEL E. VIGIL, Chief Judge




                                              15
1 WE CONCUR:


2 ___________________________
3 JONATHAN B. SUTIN, Judge


4 ___________________________
5 STEPHEN G. FRENCH, Judge




                                16
