{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 ease, 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
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,
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,
{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.
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
{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,
{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 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 7-38^10, 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
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 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 70-38410 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,
{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.
{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.