 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.

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

 7 NEW MEXICO TAXATION AND
 8 REVENUE DEPARTMENT,

 9          Plaintiff-Appellant,

10 v.                                                                          NO. 30,956

11 TERRY AND EVA CAPEHART,

12          Defendants-Appellees.

13 IN THE MATTER OF THE PROTEST OF
14 TERRY AND EVA CAPEHART.

15 APPEAL FROM THE TAXATION AND REVENUE DEPARTMENT
16 Sally Galanter, Hearing Officer

17   New Mexico Taxation and Revenue Department
18   Gary K. King, Attorney General
19   Amy Chavez-Romero, Special Assistant Attorney General
20   Santa Fe, NM

21 for Appellant

22 Terry Capehart
23 Eva Capehart
24 Apache Junction, AZ

25 Pro Se Appellees
 1                            MEMORANDUM OPINION

 2 WECHSLER, Judge.

 3        The Taxation and Revenue Department (Department) appeals from the order

 4 of its hearing officer concerning penalties due by Terry and Eva Capehart (Taxpayers)

 5 in connection with gross receipts taxes due in 2006. We reverse.

 6        Prior to January 1, 2008, NMSA 1978, Section 7-1-69(A) (2003) (amended

 7 2007) provided that a penalty of two percent per month or any fraction of a month

 8 would be added to the amount of an assessment if a taxpayer failed to file a tax return

 9 or to pay taxes when due because of negligence of disregard of Department rules or

10 regulations, but without intent to evade or defeat a tax. The statute then provided a

11 maximum penalty of ten percent. Section 7-1-69(A)(1) (2003). In 2007, the

12 Legislature amended Section 7-1-69 to increase the maximum penalty to twenty

13 percent effective January 1, 2008. 2007 N.M. Laws, ch. 45, §§ 4, 16; NMSA 1978,

14 § 7-1-69(A) (2007).

15        On May 6, 2009, the Department issued an assessment to Taxpayers for gross

16 receipts taxes due in 2006, including interest and a twenty percent penalty. Taxpayers

17 protested the interest and penalty. The hearing officer denied the protest, but reduced

18 the penalty to ten percent based on the 2007 amendment to Section 7-1-69.

19        The Department appealed and filed its brief in chief. After Taxpayers did not


                                              2
 1 file an answer brief, the Court notified Taxpayers that the case would be submitted to

 2 a panel for decision based on the brief in chief. Taxpayers sent a letter to the Court,

 3 which the Court will consider as Taxpayers’ answer brief.

 4        The Court has addressed the same issue raised in this appeal in GEA Integrated

 5 Cooling Technology v. New Mexico Taxation & Revenue Department, 2011-NMCA-

 6 __, __ N.M. __, __ P.3d __ (No. 30,790, filed Dec. 8, 2011), in which we considered

 7 the briefs of the parties as well as conducted oral argument. In GEA Integrated

 8 Cooling Technology, we held that the date of the assessment under Section 7-1-69

 9 determines the maximum penalty that the Department is to apply. GEA Integrated

10 Cooling Technology, 2011-NMCA__, ¶ 10. In that case, the department issued an

11 assessment in 2009 for gross receipts taxes due in 2006 and 2007. Id. ¶ 2. Thus, we

12 held that the 2007 amendment and the twenty percent maximum penalty applied to the

13 assessment. Id. ¶ 15. Based on GEA Integrated Cooling Technology, we reach the

14 same result in this case.

15 CONCLUSION

16        Because the Department issued its assessment after January 1, 2008, the 2007

17 amendment to Section 7-1-69 was in effect. The Department could impose a twenty

18 percent maximum penalty. We reverse the decision of the hearing officer to the extent

19 that it imposed the ten percent maximum penalty.


                                              3
1      IT IS SO ORDERED.



2                                       ________________________________
3                                       JAMES J. WECHSLER, Judge

4 WE CONCUR:



5 _______________________________
6 LINDA M. VANZI, Judge



7 _______________________________
8 TIMOTHY L. GARCIA, Judge




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