Chan v. Montoya

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 17:22:40 2011.07.14
Certiorari Denied, May 25, 2011, No. 32,990

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-072

Filing Date: April 1, 2011

Docket No. 29,142 consolidated with No. 29,760

TONY Q. CHAN and
CAROLYN HONG,
Trustees,

Plaintiffs-Appellees,

v.

KAREN L. MONTOYA,
BERNALILLO COUNTY ASSESSOR,

Defendant-Appellant,

and

FIRST BAPTIST CHURCH OF NEW MEXICO,
a New Mexico non-profit corporation,

Plaintiff-Appellee,

v.

KAREN L. MONTOYA,
BERNALILLO COUNTY ASSESSOR,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District Judge

Keleher & McLeod, P.A.
Jeffrey A. Dahl
Javier F. Junco
Albuquerque, NM

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for Appellees Tony Q. Chan and Carolyn Hong

James T. Roach
Albuquerque, NM

for Appellee First Baptist Church of New Mexico

Jeffrey S. Landers, Bernalillo County Attorney
M. David Chacon, II, Assistant Bernalillo County Attorney
Albuquerque, NM

for Appellant

OPINION

VIGIL, Judge.

{1} The question presented in these cases is whether the statutory time limit for filing a
property tax refund complaint, under NMSA 1978, Section 7-38-40 (2003) of the Property
Tax Code, begins to run on the date the tax payment is due, or on the date the payment
becomes delinquent. We conclude that the time begins on the due date. We therefore hold
that the district court erred in denying Defendant’s motions to dismiss on grounds that the
complaints were untimely, and reverse.

I. BACKGROUND

{2} In the first case, Taxpayers, as trustees for property located in Albuquerque, New
Mexico, were mailed a property tax bill for the 2007 tax year. In the second case, Taxpayer
also received its 2007 property tax bill for property it owns in Albuquerque, New Mexico.
(Hereinafter, “Taxpayers” refers to both sets of Taxpayers.) Each of the tax bills stated that
the first of two installments of the annual tax payment was due on November 10, 2007, and
that the first installment payment would become delinquent on December 10, 2007.

{3} After making the installment payments, Taxpayers each filed a complaint for
property tax refund in February 2008, approximately ninety days after the November 10 due
date. Pursuant to Section 7-38-40(A)(1), claims for refund must be filed as a civil action in
district court “no later than the sixtieth day after the first installment of the property tax for
which a claim for refund is made is due[.]” According to Taxpayers, the statutory time limit
for filing their complaint did not begin to run until the delinquency date.

{4} Asserting that the complaints were untimely, the Bernalillo County Assessor
(Assessor) moved to dismiss. In response, Taxpayers argued that the common understanding
among taxpayers and tax authorities is that the first installment payment is not due until the

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delinquency date and, therefore, Section 7-38-40(A)(1) should be interpreted to favor public
convenience and not to prejudice the public interest. Taxpayers further argued that if the
filing time limit begins to run on the statutory due date, the result is an unreasonably short
time frame for taxpayers to file a tax refund complaint, rendering the filing time limit
unconstitutional as a violation of due process. After hearings in each case, the district court
denied the motions to dismiss, concluding the tax refund complaints may be filed within
sixty days of the delinquency date. Stipulated judgments were entered in each case, which
allowed Assessor to appeal the district court determination that each complaint was timely
filed, and Assessor appealed in both cases. We consolidated the two cases since the appeals
raise an identical issue.

II. DISCUSSION

A. Standard of Review

{5} We review the district court interpretation of the Property Tax Code de novo. See
Sonic Indus. v. State, 2006-NMSC-038, ¶ 7, 140 N.M. 212, 141 P.3d 1266 (stating that
questions of statutory interpretation are questions of law that are reviewed de novo).
Taxpayers also raise questions concerning the constitutionality of Section 7-38-40, which
we also review de novo. See Manning v. N.M. Energy, Minerals, & Natural Res. Dep’t,
2006-NMSC-027, ¶ 9, 140 N.M. 528, 144 P.3d 87 (reviewing constitutional question under
de novo standard).

B. The Language of the Property Tax Code Requires a Tax Refund Complaint to
be Filed Within Sixty Days of the Statutory Due Date

{6} When interpreting statutes, our guiding principle is to determine and give effect to
legislative intent. Pub. Serv. Co. of N.M. v. N.M. Pub. Util. Comm’n, 1999-NMSC-040, ¶
18, 128 N.M. 309, 992 P.2d 860. In ascertaining the intent of the Legislature, we are
assisted by classic canons of statutory construction. Id. The first of these is that a court is
required to give effect to the statute’s language and refrain from further interpretation when
the language is clear and unambiguous. Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618,
930 P.2d 153; Bd. of Comm’rs of Doña Ana Cnty. v. Las Cruces Sun-News, 2003-NMCA-
102, ¶ 19, 134 N.M. 283, 76 P.3d 36 (noting that where language is clear, appellate courts
“give the statute its plain and ordinary meaning and refrain from further interpretation”).

{7} NMSA 1978, Section 7-38-38(A) (1987) provides that the first installment of two
property tax payments is due on November 10 of the year in which the tax bill was prepared
and mailed. If taxpayers believe they have been excessively taxed and want to file a tax
refund complaint, Section 7-38-40(A)(1) directs: “Claims for refund shall be filed by the
property owner as a civil action in the district court . . . and shall be filed no later than the
sixtieth day after the first installment of the property tax for which a claim for refund is made
is due[.]” Since Section 7-38-40 clearly and unambiguously directs that a tax refund
complaint must be filed within sixty days of the due date, the statutory time limit for filing
a complaint began to run on the due date of November 10. Taxpayers’ complaints, which
were filed more than sixty days later, were untimely under the plain language of the statute.

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C. The Common Usage of the Word “Due” Does Not Alter the Plain Meaning of
the Statute

{8} Although Section 7-38-40 provides that the first installment of a tax payment is due
on November 10, NMSA 1978, Section 7-38-46 (2003) provides that the payment does not
become delinquent so as to incur a penalty for being late until thirty days after the statutory
due date or, in other words, by December 10. Taxpayers argue that the common usage and
understanding among taxpayers of their tax bill notices is that the first installment of the tax
payment is not actually “due” until the statutory delinquency date. To support this
contention, Taxpayers cite dictionary definitions of the word “due.” These definitions state
that the word “due” means “having reached the date at which payment is required” and
“required or expected in the prescribed, normal, or logical course of events.” Merriam-
Webster Online Dictionary, http://www.merriam-webster.com/dictionary/due. As such,
Taxpayers contend that payment is not “required” or “due” until a penalty is to be assessed
on the delinquency date. Taxpayers assert that it is not common to believe that tax payments
are “past due” before the delinquency date and urge that we construe the word “due” with
this ordinary meaning. Tafoya v. N.M. State Police Bd., 81 N.M. 710, 714, 472 P.2d 973,
977 (1970) (stating that where there is no clearly expressed legislative intent providing
otherwise, “the word is to be given its usual, ordinary meaning”). Thus, based on the
asserted common understanding that a payment is not actually due until the date on which
a penalty will be assessed, Taxpayers contend that the statutory time limit for filing tax
refund complaints should not begin to run until one day after the delinquency date. We
disagree.

{9} First, Taxpayers have provided no facts or evidence to support this argument. “It is
not our practice to rely on assertions of counsel unaccompanied by support in the record.
The mere assertions and arguments of counsel are not evidence.” Muse v. Muse, 2009-
NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104. In addition, this common usage argument
does not alter the plain language of the Property Tax Code itself. Reading “delinquent” as
synonymous with “due” does not comport with the Legislature’s use of two, distinct
statutory definitions of the two words. The “due” date is a statutorily fixed date of
November 10, and the “delinquency” date is a separate date, thirty days later. See § 7-38-40;
§ 7-38-46(A). Because the legislative intent is clear that the due date is a different date from
the delinquency date, we decline Taxpayers’ invitation to alter the most logical reading of
the word “due” as it is used in the Property Tax Code.

{10} Our conclusion is further supported by the way the Legislature requires tax bills to
be worded. NMSA 1978, Section 7-38-37(B) (2008), states that “[e]ach property tax bill
shall . . . contain at least the following: . . . the amount of property taxes due on each
installment, the due dates of the installments and the dates on which taxes become
delinquent[.]” (Emphasis added). As Taxpayers concede, they received appropriately
worded tax bills informing them that the first installment of their annual tax payment was
due on November 10 and that payment would become delinquent on December 10.
Therefore, it follows that if “delinquent” were meant to be one and the same with “due” than

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such a distinction between the words would not have been made in Taxpayers’ bills as
required by Section 7-38-37.

D. The Practical Implications of the Property Tax Code Do Not Alter the Plain
Meaning of the Statute

{11} NMSA 1978, Section 7-38-39 (2003) states that “[a]fter receiving his property tax
bill and after making payment prior to the delinquency date of all property taxes due in
accordance with the bill, a property owner may protest the value . . . for his property.” Thus,
it is payment that creates the right of action. Taxpayers contend that Section 7-38-39
supports their argument that the due date of the first installment is actually the delinquency
date because to hold otherwise would have the practical result of allowing the statutory time
limit to begin to run before payment is actually made and, thus, before the taxpayer’s cause
of action for a claim for refund arises. Thus, a taxpayer who makes payment on December
9, the day before the delinquency date, will only have thirty days to file a tax refund
complaint before the sixty-day filing time limit expires. Taxpayers contend that such a result
makes an interpretation of Section 7-38-40, which requires the time limit for filing a tax
refund complaint to begin to run on November 10, unreasonable. Taxpayers argue that a
more reasonable reading would be that the time limit begins to run on December 10, so all
taxpayers who make payment prior to the delinquency date have the full sixty days to bring
their claims for refund. We are not persuaded.

{12} Section 7-38-39 sets forth who has the right to file a complaint for a tax refund. It
provides that if a taxpayer has (1) received his or her property tax bill and (2) has made
payment prior to the delinquency date of all property taxes due in accordance with the bill,
then the taxpayer may elect to file a claim for refund. Section 7-38-40 dictates when a
taxpayer may file a tax refund claim. A taxpayer cannot assert a right to file a refund claim
until making a payment before the delinquency date of the first installment. However, the
taxpayer must also abide by the separate procedural filing deadline for filing a claim in
district court within sixty days of the due date of the first installment. Hence, the two
sections serve different functions. One purpose of Section 7-38-39 is to ensure that only
taxpayers who are not delinquent in their tax payment may file a tax refund complaint. On
the other hand, Section 7-38-40 is a statute of repose, which begins to run from the
statutorily determined tax payment due date without regard to when the tax is actually paid.
See Garcia v. La Farge, 119 N.M. 532, 537, 893 P.2d 428, 433 (1995) (stating that
“[s]tatutes of repose begin to run from a statutorily determined time defined without regard
to when the underlying cause of action accrues and without regard to the discovery of injury
or damages”). As such, it is the nature of a statute of repose to begin to run before a cause
of action accrues in some circumstances.

E. Taxpayers Must Make Payment of Property Taxes Due on the First Installment
Due Date

{13} In the alternative, Taxpayers argue that their complaints were timely because a
taxpayer may file a complaint any time before any delinquency date shown on the tax bill.
Since their tax bills stated that the second installment of the annual tax payment was not

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delinquent until April 10, they assert that their complaints were timely filed because the
complaints were filed prior to April 10. They base their argument on language of Section
7-38-39 that the right to file a claim for refund arises when payment is made “prior to the
delinquency date of all property taxes due in accordance with the bill[.]” (Emphasis added.)
Therefore, Taxpayers contend that taxpayers have until April 10 to file a complaint for
refund. In essence, Taxpayers’ argument requests us to look solely at Section 7-38-39 and
disregard the requirements articulated in Section 7-38-40. However, we decline to do so.
Section 7-38-40 plainly dictates that filing must take place sixty days from the first
installment due date. Therefore, a taxpayer must make payment of all property taxes due as
of the first installment due date in order to preserve his or her right to file a tax complaint.

F. The Sixty-Day Period for Bringing Suit Does Not Violate Due Process

{14} Taxpayers argue that our interpretation of Section 70-38-40 creates a time limit for
filing suit that is too short for purposes of due process under the federal and state
constitutions. Taxpayers’ main contention is that if the sixty-day time limit begins to run on
the due date of November 10, then the statute begins to run even before the cause of action
accrues because payment, which creates the right of action, does not become delinquent until
December 10. Therefore, taxpayers will have only between thirty and sixty days to file tax
refund claims, depending on when they make their payments.

{15} We agree with Taxpayers that for a statute of repose to be constitutional, the time
frame to pursue a remedy cannot be unreasonably short. See Terry v. N.M. State Highway
Comm’n, 98 N.M. 119, 122, 645 P.2d 1375, 1379 (1982) (holding that the constitutionality
of statutory time limits has “hinged on the reasonableness of the time provided to pursue a
remedy”). However, we do not agree that the time frame provided in these cases is
unnecessarily short.

{16} Taxpayers rely on Terry and Garcia to support their argument that the sixty-day
statute of repose provided in Section 7-38-40 is unreasonably short and, therefore, violates
due process. In Terry, the relevant statute provided that wrongful death actions against
engineers or contractors that arise out of an unsafe condition of a physical improvement to
real property must be brought within ten years of the date of substantial completion of the
improvement. 98 N.M. at 120, 645 P.2d at 1376. The decedents in Terry were killed in a
car accident on a state highway built by the contractor and engineer defendants three months
before the ten-year filing time limit ended. Id. Our Supreme Court held that three months
was not a constitutionally reasonable amount of time to give the plaintiffs time to pursue
their claim. Id. at 123, 645 P.2d at 1379. In Garcia, our Supreme Court considered the
three-year statute of repose in the Medical Malpractice Act. Garcia, 119 N.M. at 534, 893
P.2d at 430. The plaintiff’s medical malpractice cause of action arose after a cardiac arrest,
which occurred eighty-five days before the statute of repose expired. Id. at 542, 893 P.2d
at 438. The court held that eighty-five days was an unreasonably short amount of time to
require the plaintiff to file his malpractice claim. Id. In both Terry and Garcia, the due
process inquiry hinged on the reasonableness of the time limit as applied to the particular
facts of those cases.

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{17} The tax situation in this case is dissimilar. In both Terry and Garcia, application of
the statutes was unconstitutional because the cause of action had arisen, or an injury had
been discovered, near the expiration of the statutory time limit. We have no such facts in
this case. Moreover, unlike situations involving accidents or illness, which are unpredictable
and generally cannot be anticipated, taxpayers are aware that they will be required to pay
taxes every year on particular dates. Furthermore, taxpayers have notice each year as of
April 1 of the actual property valuations on which their claims for refund will necessarily
be based. See NMSA 1978, § 7-38-20(A) (2001) (“By April 1 of each year, the county
assessor shall mail a notice to each property owner informing him of the net taxable value
of his property that has been valued for property taxation purposes by the assessor.”).
Taxpayers may pursue redress by either protesting the property valuation with the county
assessor, or electing to protest the property valuation by filing a claim for refund after
payment of taxes. See NMSA 1978, § 7-38-21(A) (2001). As such, taxpayers have notice
almost nine months in advance of the district court filing deadline and, therefore, almost nine
months in which to pursue an alternate remedy or wait to file a tax refund complaint after
payment. Thus, the time period provided in Section 7-38-40 for which to file tax refund
complaints is reasonable and does not violate due process.

III. CONCLUSION

{18} We hold that the Legislature meant for Section 7-38-40 to begin to run on the
statutory due date and that Taxpayers’ complaints for refund were untimely filed. We
therefore reverse the district court orders denying Assessor’s motions to dismiss Taxpayers’
untimely complaints seeking claims for refund.

{19} IT IS SO ORDERED.

______________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

______________________________________
JAMES J. WECHSLER, Judge

______________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for Chan v. Montoya, Docket Nos. 29,142/29,760

AE APPEAL AND ERROR
AE-SR Standard of Review

CP CIVIL PROCEDURE
CP-MD Motion to Dismiss

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CT CONSTITUTIONAL LAW
CT-DP Due Process

ST STATUTES
ST-IP Interpretation

TX TAXATION
TX-PT Property Tax
TX-RF Refund
TX-TM Time Limitations
TX-VL Valuation

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