(specially concurring).
Because the facts dispose of this appeal I do not reach the question of the meaning of the income tax instructions, I do not give any effect to the grasping attitude of the Bureau that is revealed by the facts, and I do not consider the cost to the State of the pursuit of this taxpayer through an audit, an administrative hearing and this appeal.
The Bureau contends that § 7-2-15, N.M. S.A. 1978 is the applicable statute. The applicable portion of that statute authorizes a tax credit of:
(2) four percent of the gross amount of expenditures in New Mexico for medical and dental expenses allowable in computing the deductible medical and dental expenses for federal income tax purposes, excluding from the allowable deductions amounts paid for hospital services not subject to the Gross Receipts and Compensating Tax Act and health and accident insurance premium costs.
It is not disputed that the taxpayer had medical expenses of $5,793. The portion of these expenses “paid for hospital services not subject to the Gross Receipts and Compensating Tax Act” are excluded in reckoning the amount of the deduction for medical expenses. Whether any of the undisputed medical expenses was a payment for hospital services was a question of fact.
It is undisputed that the medical expenses were incurred by the taxpayer for medical services furnished to the taxpayer as an outpatient of the Lovelace Clinic in Albuquerque. On the basis that the Lovelace Clinic is a part of the Lovelace Medical Foundation, and on the basis that another part of the Foundation is a hospital, the Bureau contended, and the hearing officer agreed, that taxpayer’s payments were payments for hospital services.
This approach disregards what the taxpayer in fact paid for and makes the deduction depend on the legal structure of the organization receiving payment. This approach disregards the language of the statute, which is worded in terms of payment for hospital services. The Bureau’s authority to exclude medical expenses is statutory. Rainbo Baking Co. of El Paso v. Commissioner of Rev., 84 N.M. 303, 502 P.2d 406 (Ct.App.1972). It had no authority to exclude medical expenses on the basis of the legal status of the Medical Foundation; its authority to exclude depends on whether, as a matter of fact, the medical expense was a payment for hospital services.
The only evidence of what was paid for was presented by the taxpayer. She testified that she was never hospitalized; that the $5,793 expense represented the charges of the Lovelace Clinic for one physician; that no tests or X-rays were involved; that the services were received at the clinic and not at the hospital; that she would make an appointment to see the doctor; that the appointment would be kept at the doctor’s office in the clinic and, at the conclusion of this office visit, she left; that at the time these services were rendered the clinic occupied one building completely and shared the occupancy of another building with the hospital.
The only inference from this evidence is that none of the medical expenses were in payment for hospital services. On this basis, I concur in the result reached by Judge Sutin.
ANDREWS, J., concurs.