1. A. A person who believes that an amount of tax has been paid by or withheld from that person in excess of that for which the person was liable, who has been denied a rebate claimed or who claims a prior right to property in the possession of the department pursuant to a levy made pursuant to the authority of Sections 7-1-31 through 7-1-34 NMSA 1978 may claim a refund by directing to the secretary, within the time limitations provided by Subsections F and G of this section, a written claim for refund that, except as provided in Subsection K of this section, includes:

   1. (1) the taxpayer's name, address and identification number;
   2. (2) the type of tax for which a refund is being claimed, the rebate denied or the property levied upon;
   3. (3) the sum of money or other property being claimed;
   4. (4) with respect to a refund, the period for which overpayment was made;
   5. (5) a brief statement of the facts and the law on which the claim is based, which may be referred to as the "basis for the refund", which may include documentation that substantiates the written claim and supports the taxpayer's basis for the refund; and
   6. (6) if applicable, a copy of an amended return for each tax period for which the refund is claimed.
2. B. A claim for refund that meets the requirements of Subsection A of this section and that is filed within the time limitations provided by Subsections F and G of this section is deemed to be properly before the department for consideration, regardless of whether the department requests additional documentation after receipt of the claim for refund.
3. C. If the department requests additional relevant documentation from a taxpayer who has submitted a claim for refund, the claim for refund shall not be considered incomplete provided the taxpayer submits sufficient information for the department to make a determination.

4. D. The secretary or the secretary's delegate may allow the claim in whole or in part or may deny the claim. If the:

   1. (1) claim is denied in whole or in part in writing, the person shall not refile the denied claim, but the person, within ninety days after either the mailing or delivery of the denial of all or any part of the claim, may elect to pursue only one of the remedies provided in Subsection E of this section; and
   2. (2) department has neither granted nor denied any portion of a complete claim for refund within one hundred eighty days after the claim was mailed or otherwise delivered to the department, the person may elect to treat the claim as denied and elect to pursue only one of the remedies provided in Subsection E of this section.

5. E. A person may elect to pursue only one of the remedies provided in this subsection. A person who timely pursues more than one remedy is deemed to have elected the first. The person may:

   1. (1) direct to the secretary, pursuant to the provisions of Section 7-1-24 NMSA 1978, a written protest that sets forth:

      1. (a) the circumstances of: 1) an alleged overpayment; 2) a denied rebate; or 3) a denial of a prior right to property levied upon by the department;
      2. (b) an allegation that, because of that overpayment or denial, the state is indebted to the taxpayer for a specified amount, including any allowed interest, or for the property;
      3. (c) a demand for the refund to the taxpayer of that amount or that property; and
      4. (d) a recitation of the facts of the claim for refund; or
   2. (2) commence a civil action in the district court for Santa Fe county by filing a complaint setting forth the circumstance of the claimed overpayment, denied rebate or denial of a prior right to property levied upon by the department alleging that on account thereof the state is indebted to the plaintiff in the amount or property stated, together with any interest allowable, demanding the refund to the plaintiff of that amount or property and reciting the facts of the claim for refund. The plaintiff or the secretary may appeal from any final decision or order of the district court to the court of appeals.

6. F. Except as otherwise provided in Subsection G of this section, a refund of any amount of overpaid tax, penalty or interest may be allowed or made to a person if a claim is properly filed:

   1. (1) only within three years after the end of the calendar year in which the applicable event occurs:

      1. (a) in the case of tax paid with an original or amended state return, the date the related tax was originally due;
      2. (b) in the case of tax paid in response to an assessment by the department pursuant to Section 7-1-17 NMSA 1978, the date the tax was paid;
      3. (c) in the case of tax with respect to which a net-negative federal adjustment, as that term is used in Section 7-1-13 NMSA 1978, relates, the final determination date of that federal adjustment, as provided in Section 7-1-13 NMSA 1978;
      4. (d) the final determination of value occurs with respect to any overpayment that resulted from a disapproval by any agency of the United States or the state of New Mexico or any court of increase in value of a product subject to taxation pursuant to the Oil and Gas Severance Tax Act [Chapter 7, Article 29 NMSA 1978], the Oil and Gas Conservation Tax Act [Chapter 7, Article 30 NMSA 1978], the Oil and Gas Emergency School Tax Act [Chapter 7, Article 31 NMSA 1978], the Oil and Gas Ad Valorem Production Tax Act [Chapter 7, Article 32 NMSA 1978] or the Natural Gas Processors Tax Act [Chapter 7, Article 33 NMSA 1978]; or
      5. (e) in the case of a claim related to property taken by levy, the date the property was levied upon as provided in the Tax Administration Act;
   2. (2) in the case of a taxpayer under audit by the department who has signed a waiver of the limitation on assessments pursuant to Subsection F of Section 7-1-18 NMSA 1978, only for a refund of the same tax paid for the same period for which the waiver was given, and only until a date one year after the later of the date of the mailing of an assessment issued pursuant to the audit, the date of the mailing of final audit findings to the taxpayer or the date a proceeding is begun in court by the department with respect to the same tax and the same period;
   3. (3) in the case of a payment of an amount of tax not made within three years of the end of the calendar year in which the original due date of the tax or date of the assessment of the department occurred, only for a claim for refund of that amount of tax and only within one year of the date on which the tax was paid; or
   4. (4) in the case of a taxpayer who has been assessed a tax pursuant to Subsection B, C or D of Section 7-1-18 NMSA 1978 and an assessment that applies to a period ending at least three years prior to the beginning of the year in which the assessment was made, only for a refund for the same tax for the period of the assessment or for any period following that period within one year of the date of the assessment unless a longer period for claiming a refund is provided in this section.
7. G. No refund shall be allowed or made to a person claiming a refund of gasoline tax pursuant to Section 7-13-11 NMSA 1978 unless notice of the destruction of the gasoline was given to the department within thirty days of the actual destruction and the claim for refund is made within six months of the date of destruction. No refund shall be allowed or made to a person claiming a refund of gasoline tax pursuant to Section 7-13-17 NMSA 1978 unless the refund is claimed within six months of the date of purchase of the gasoline and the gasoline has been used at the time the claim for refund is made.
8. H. If, as a result of an audit by the department or a managed audit covering multiple periods, an overpayment of tax is found in any period under the audit and if the taxpayer files a claim for refund for the overpayments identified in the audit, that overpayment may be credited against an underpayment of the same tax found in another period under audit pursuant to Section 7-1-29 NMSA 1978.
9. I. A refund of tax paid under any tax or tax act administered pursuant to Subsection B of Section 7-1-2 NMSA 1978 may be made, at the discretion of the department, in the form of credit against future tax payments if future tax liabilities in an amount at least equal to the credit amount reasonably may be expected to become due.
10. J. For the purposes of this section, "oil and gas tax return" means a return reporting tax due with respect to oil, natural gas, liquid hydrocarbons, carbon dioxide, helium or nonhydrocarbon gas pursuant to the Oil and Gas Severance Tax Act, the Oil and Gas Conservation Tax Act, the Oil and Gas Emergency School Tax Act, the Oil and Gas Ad Valorem Production Tax Act, the Natural Gas Processors Tax Act or the Oil and Gas Production Equipment Ad Valorem Tax Act [Chapter 7, Article 34 NMSA 1978].
11. K. The filing of a fully completed original income tax return, corporate income tax return, corporate income and franchise tax return, estate tax return or annual insurance premium tax return that shows a balance due the taxpayer or a fully completed amended income tax return, an amended corporate income tax return, an amended corporate income and franchise tax return, an amended estate tax return, an amended oil and gas tax return or an amended insurance premium tax return that shows a lesser tax liability than the original return constitutes the filing of a claim for refund for the difference in tax due shown on the original and amended returns.
12. L. The department may allow a completed return and an amended return to constitute the filing of a claim for refund.
13. M. In no case may a refund be claimed if the related federal adjustment is taken into account by a partnership in the partnership's tax return for the adjustment year and allocated to the partners in a manner similar to other partnership tax items.

History: 1953 Comp., § 72-13-40, enacted by Laws 1965, ch. 248, § 28; 1966, ch. 30, § 4; 1971, ch. 276, § 9; 1974, ch. 32, § 1; 1975, ch. 213, § 2; 1979, ch. 144, § 25; 1982, ch. 18, § 11; 1983, ch. 211, § 27; 1985, ch. 65, § 16; 1986, ch. 20, § 17; 1989, ch. 325, § 8; 1990, ch. 86, § 7; 1993, ch. 5, § 9; 1994, ch. 51, § 5; 1996, ch. 15, § 4; 1997, ch. 67, § 3; 1999, ch. 84, § 2; 2000, ch. 28, § 9; 2001, ch. 16, § 5; 2003, ch. 398, § 9; 2007, ch. 275, § 2; 2013, ch. 27, § 8; 2015, ch. 73, § 17; 2017, ch. 63, § 26; 2019, ch. 157, § 4; 2021, ch. 83, § 3; 2023, ch. 85, § 5; 2025, ch. 130, § 29.

ANNOTATIONS

Cross references. — For managed audit, see 7-1-11.1 NMSA 1978.

For allowance of interest on overpayments, see 7-1-68 NMSA 1978.

For the Internal Revenue Code, see 26 U.S.C. § 1 et seq.

The 2025 amendment, effective July 1, 2025, allowed an amended return that shows overpayment of tax to constitute a refund claim for any tax program allowed by the taxation and revenue department, and removed language regarding the ability of taxpayers to dispute the denial of a credit; in the section heading, and throughout the section, deleted "credit" preceding "rebate"; in Subsection E, Subparagraph E(1)(a), deleted Item B(1)(a)2), and item designation "3)" and redesignated Item B(1)(a)4) as Item B(1)(a)3); in Subsection F, in the introductory clause, deleted "credit or" preceding "refund" and deleted former Paragraph F(2) and redesignated former Paragraphs F(3) through F(5) as Paragraphs F(2) through F(4), respectively, in Paragraph F(2), after "assessments" deleted "on or after July 1, 1993", in Paragraph F(4), after "assessed a tax" deleted "on or after July 1, 1993"; in Subsection G, after each occurrence of "No" deleted "credit or"; in Subsection K, after "estate tax return" deleted "special fuel excise tax return", and after "amended estate tax return" deleted "an amended special fuel excise tax return"; added new Subsection L and redesignated former Subsection L as Subsection M; and in Subsection M, deleted "credit or" preceding "refund".

The 2023 amendment, effective July 1, 2023, included "annual insurance premium tax returns" and "amended insurance premium tax returns" in an existing provision related to filing a claim for refund; and in Subsection K, after "special fuel excise tax return", added "or annual insurance premium tax return", and after "amended oil and gas tax return", added "or an amended insurance premium tax return".

The 2021 amendment, effective June 18, 2021, amended sections of the tax administration act to address federal partnership audit or adjustment requests resulting in underpayment or overpayment of state taxes; in Subsection F, after "any amount", added "of overpaid tax, penalty or interest", and after "person", added "if a claim is properly filed", in Paragraph F(1), after "year in which", added "the applicable event occurs", in Subparagraph F(1)(a), deleted "the payment was originally due or the overpayment resulted from an assessment by the department as provided in Section 7-1-17 NMSA 1978, whichever is later" and added "in the case of tax paid with an original or amended state return, the date the related tax was originally due", added new Subparagraphs F(1)(b) and F(1)(c) and redesignated former Subparagraphs F(1)(b) and F(1)(c) as Subparagraphs F(1)(d) and F(1)(e), respectively, in Subparagraph F(1)(e), added "in the case of a claim related to property taken by levy, the date the", deleted former Subparagraph F(1)(d); and added Subsection L.

The 2019 amendment, effective June 14, 2019, clarified certain provisions related to making a claim for a tax refund on a disputed tax liability; in Subsection B, after "Subsection A of this section", deleted "shall be" and added "and that is filed within the time limitations provided by Subsections F and G of this section is", and after "receipt of the claim for refund", deleted "provided that the claim for refund is filed within the time limitations provided in Subsections F and G of this section"; in Subsection C, after "shall not be considered", deleted "complete until the taxpayer provides the requested documentation. The provisions of Paragraph (2) of Subsection D of this section and of Section 7-1-68 NMSA 1978 do not apply until a refund claim is complete" and added "incomplete provided the taxpayer submits sufficient information for the department to make a determination"; in Subsection D, Paragraph D(2), after "Subsection", deleted "D" and added "E"; in Subsection F, in the introductory clause, after "a person", deleted "unless as the result of a claim made by that person as provided in this section", in Paragraph F(2), deleted "when an amount" and added "in the case", after "of a", added "denial of a", and after "similar credit", deleted "has been denied, the taxpayer may claim a refund of the credit no later than" and added "only within"; and in Subsection H, after "under the audit" added "and if the taxpayer files a claim for refund for the overpayments identified in the audit", and deleted "provided that the taxpayer files a claim for refund for the overpayments identified in the audit".

The 2017 amendment, effective June 16, 2017, clarified the information required in a refund claim, clarified the time a claim for refund is deemed to be properly before the department for consideration, clarified that, if the department requests additional documentation from a taxpayer who has submitted a claim for refund, the claim for refund is not considered complete until the taxpayer provides the requested documentation, and provided that taxpayers have a right to treat a refund claim denied for purposes of protesting if the department has failed to act on the refund claim within 180 days; in Subsection A, in the introductory paragraph, after "Subsections", changed "D" to "F", and "E" to "G", added "At the time the written claim is submitted", after "Subsection", changed "I" to "K", in Paragraph A(5), added "which shall include documentation that substantiates the written claim and supports the taxpayer’s basis for the refund", and added Paragraph A(6); added new Subsections B and C and redesignated former Subsections B through I as Subsections D through K, respectively; in Subsection D, added "If the", in Paragraph D(1), deleted "If the", after "Subsection", changed "C" to "E", in Paragraph D(2), deleted "If the", after "any portion of a", added "complete", and after "one hundred", deleted "twenty days of the date the claim was mailed or delivered to the department, the person may refile it within the time limits set forth in Subsection D of this section or may within ninety days elect to pursue one, but only one, of the remedies in Subsection C of this section. After the expiration of the two hundred ten days from the date the claim was mailed or delivered to the department, the department may not approve or disapprove the claim unless the person has pursued one of the remedies under Subsection C of this section" and added the remainder of the paragraph; and in Subsection F, in the introductory clause, after "Subsection", changed "E" to "G", and in Paragraph F(2), after "Technology Jobs", added "and Research and Development".

The 2015 amendment, effective July 1, 2015, provided for the required contents of a written protest of tax liability; in Subsection A, deleted "Any" and added "A"; in Subsection C, after "elect to pursue", deleted "one, but only" and added "no more than", after "subsection", deleted "In any case, if", after "A person", deleted "does timely pursue" and added "who timely pursues", after "one remedy", deleted "the person", and after "The", deleted "remedies are as follows:", deleted the paragraph designation for Paragraph (1) of Subsection C, after "(1)" in former Paragraph (1) of Subsection C, deleted "the", and after "person may" in former Paragraph (1) of Subsection C, designated the remainder of former Paragraph (1) of Subsection C as new Paragraph (1) of Subsection C; in Paragraph (1) of Subsection C, after "written protest", deleted "against the denial of, or failure to either allow or deny, the claim or portion of the claim" and added "that shall set forth:"; added Paragraphs (1)(a), (b), (c) and (d) of Subsection C; and in Subsection C, Paragraph (2), after "(2)", deleted "the person may".

The 2013 amendment, effective July 1, 2013, prescribed the content of a refund claim; in the title, added "Disputing liabilities" and after "claim for", added "credit, rebate or"; in Subsection A, in the first sentence, after "Subsections D", changed "E and F" to "and E"; in Paragraph (2) of Subsection A, after "refund is being claimed", added "the credit or rebate denied or the property levied upon"; in Paragraph (3) of Subsection A, after "sum of money", added "or other property"; in Paragraph (4) of Subsection A, at the beginning of the sentence, added "with respect to refund" and after "overpayment was made; and", deleted "the basis for the refund. As used in this subsection, ‘basis for the refund’ means"; in Paragraph (5) of Subsection A, after "claim is based", added "which may be referred to as the ‘basis for the refund’"; in Paragraph (1) of Subsection C, after "direct to the secretary", added "pursuant to the provisions of Section 7-1-24 NMSA 1978", and after "deny the claim or portion", deleted language which provided for a hearing and appeal and added "of the claim"; in Paragraph (2) of Subsection C, in the first sentence, after "claimed overpayment", added "denied credit or rebate or denial of a prior right to property levied upon by the department", after "plaintiff in the amount", added "or property" and after "plaintiff of that amount", added "or property"; in Subsection D, in the first sentence, after "Except as otherwise provided in", changed "Subsections E and F" to "Subsection E"; added Subparagraph (d) of Paragraph (1) of Subsection D; in Paragraph (2) of Subsection D, after "rural job tax credit pursuant to", deleted "Sections 7-2E-1 and 7-2E-2" and added "Section 7-2E-1.1"; and deleted former Subsection F which provided for a credit or refund, with interest, when the adjustment of federal tax results in an overpayment of tax.

The 2007 amendment, effective July 1, 2007, eliminated the one-year limitation to claim a credit under the Capital Equipment Tax Credit Act and eliminated returns reporting taxes due with respect to helium and nonhydrocarbon gas from the definition of "oil and gas tax return".

The 2003 amendment, effective July 1, 2003, added "As used in this subsection, 'basis for the refund' means a brief statement of the facts and the law on which the claim is based" following "basis for the refund." at the end of Subsection A.

The 2001 amendment, effective July 1, 2001, rewrote Subsection D, added Subsection G and redesignated the remaining subsections accordingly.

The 2000 amendment, effective July 1, 2000, in Subsection B, inserted the paragraph designations (1) and (2), substituted "no claim may be refiled with respect to that which was denied, but the person" for "the claim may not be refiled. If the claim is not granted in full the person" in Paragraph (1); added the last sentence to Paragraph (2); redesignated part of former Subsection B as present Subsection C, adding the first sentence and redesignating the subsequent subsections; in Subsection D, deleted "the payment was made" following "due" in Paragraph (1)(a); substituted "or Capital Equipment Tax Credit Act or the rural job tax credit pursuant to Sections 7-2E-1 and 7-2E-2 NMSA 1978" for "or Filmmaker's Credit Act" in Paragraph (2)(a) and added Paragraph (2)(d); and substituted "Section 7-13-17" for "Section 7-13-14" in Subsection E.

The 1999 amendment, effective July 1, 1999, inserted "the payment was made" in Subsection C(1)(a).

The 1997 amendment, effective July 1, 1997, redesignated the second paragraph of Subsection A as Subsection B, inserted "or delivery" following "mailing" in the second sentence, inserted "the department may not approve or deny the claim but" preceding "the person may refile" in the third sentence; and redesignated former Subsections B through G as C through H and made related stylistic changes.

The 1996 amendment, effective July 1, 1996, rewrote the second sentence of Subsection A, added Subparagraph B(2)(a) and designated the existing provisions of Paragraph B(2) as Subparagraphs B(2)(b) and (c).

The 1994 amendment, effective July 1, 1994, substituted the exception clause at the end of the second sentence in the introductory paragraph of Subsection A for the former proviso clause, relating to the same subject matter; substituted "person" for "taxpayer" in the next-to-last sentence in the introductory paragraph of Subsection A, in Paragraph A(1) and in both sentences in Paragraph A(2), and "July 1, 1993" for "the effective date of this act" in Paragraph B(3); and added Subsection G.

The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison would be impracticable.

Defining a pending case. — A taxpayer's request for a tax refund is a "pending case" within the meaning of N.M. Const., art. IV, § 34. Phelps Dodge Corp. v. Revenue Div., N.M. Taxation & Revenue Dep't, 1985-NMCA-055, 103 N.M. 20, 702 P.2d 10.

Tax protestor can avoid hearing process altogether by electing to pay the tax assessed and filing a refund claim with the district court. Kmart Props., Inc. v. N.M. Taxation & Revenue Dep't., 2006-NMCA-026, 139 N.M. 177, 131 P.3d 27, rev'd on other grounds, 2006-NMSC-006, 139 N.M. 172, 131 P.3d 22.

Disputing the denial of an application for a high-wage jobs tax credit. — Where taxpayer submitted an application for a high-wage jobs tax credit, which was denied by the Department of Taxation and Revenue (Department), and where taxpayer did not file a written protest to the department’s denial of its credit application, pursuant to 7-1-24 NMSA 1978, but rather filed an application for refund pursuant to 7-1-26 NMSA 1978, based on its original credit application, which was also denied by the department, and where taxpayer filed a written protest to the denial of its refund application, and where, following multiple hearings before the administrative hearing officer, the department filed a motion for summary judgment, and where the administrative hearing officer granted the department’s motion, concluding that the only available remedy for a denial of an application for a tax credit was to file a protest within ninety days of the denial pursuant to 7-1-24 NMSA 1978, and that taxpayer’s failure to file such a protest rendered the department’s denial indisputable, the administrative hearing officer erred in granting the department’s motion for summary judgment and denying taxpayer’s protest, because neither the applicable statutes nor the department’s own guidance suggest that a taxpayer’s sole remedy to dispute the denial of a high-wage jobs tax credit is through the protest procedures provided in 7-1-24 NMSA 1978. The plain language of both 7-1-24 and 7-1-26 NMSA 1978, indicates that the two statutes exist as alternatives and a taxpayer may dispute a denial of a tax credit under either statute. Elite Well v. N.M. Tax'n & Revenue Dep't, 2023-NMCA-041.

It was mandatory that taxpayers follow administrative procedures of this section before questioning in court the constitutionality of the tax at issue, and district court correctly determined that it lacked jurisdiction because of the failure to timely appeal. Neff v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-116, 116 N.M. 240, 861 P.2d 281.

Tax Administration Act requires exhaustion of remedies for each denial of a given credit. — Where plaintiff taxpayers (taxpayers) twice challenged the New Mexico taxation and revenue department's (department) denial of applications for high wage jobs tax credits, authorized by § 7-9G-1 NMSA 1978, once in 2015 and again in 2016, and where taxpayers elected to dispute the denial of the 2015 credits by filing a written protest to be heard by the department's administrative hearing officer (AHO), pursuant to § 7-1-24 NMSA 1978, but elected to protest the denial of the 2016 credits by claiming a refund from the department for the credit denied, pursuant to § 7-1-26 NMSA 1978, and where the department filed a motion for summary judgment, claiming that when a taxpayer pursues successive denials of tax credits raising a common issue, the taxpayer must have the issue resolved in the forum where it was initially raised or is otherwise bound by their choice of remedy for the original denial, the district court erred in granting the department's motion for summary judgment, because the Tax Administration Act, §§ 7-1-1 to 7-1-83 NMSA 1978, requires only that a taxpayer denied a given credit exhaust their remedy for that denied credit before seeking relief from the courts. Taxpayers were not required to pursue the same remedy for the denial of the 2016 credits as they pursued for the denial of the 2015 credits; the act requires only that a taxpayer exhaust whatever remedy it has chosen to challenge the denial of a given credit. Weatherford Artificial Lift Systems v. Clarke, 2021-NMCA-065.

District court erred in invoking primary jurisdiction. — Where plaintiff taxpayers (taxpayers) twice challenged the New Mexico taxation and revenue department's (department) denial of applications for high wage jobs tax credits, authorized by § 7-9G-1 NMSA 1978, once in 2015 and again in 2016, and where taxpayers elected to dispute the denial of the 2015 credits by filing a written protest to be heard by the department's administrative hearing officer (AHO), pursuant to § 7-1-24 NMSA 1978, but elected to protest the denial of the 2016 credits by claiming a refund from the department for the credit denied, pursuant to § 7-1-26 NMSA 1978, and where the department filed a motion for summary judgment, claiming that when a taxpayer pursues successive denials of tax credits raising a common issue, the taxpayer must have the issue resolved in the forum where it was initially raised or is otherwise bound by their choice of remedy for the original denial, the district court erred in granting the department's motion for summary judgment, invoking the doctrine of primary jurisdiction, because in this case, taxpayers exhausted their administrative remedies as to the 2016 credits, thereby depriving the AHO of jurisdiction, the department failed to explain why resolution of specific, factual issues raised in the 2016 credits require the peculiar expertise of the AHO, and the remedy requested by the department, entry of judgment in its favor, is not one available under the doctrine of primary jurisdiction. Weatherford Artificial Lift Systems v. Clarke, 2021-NMCA-065.

Section provides adequate remedy at law. — Taxpayers have standing under this section to contest the constitutionality of New Mexico taxes assessed against them; thus, under the rule of National Private Truck Council v. Oklahoma Tax Commission, 515 U.S. 582, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995), a § 1983 action for injunctive or declaratory relief cannot lie with respect to imposition of a state tax, because taxpayers have been provided an adequate remedy at law. Ramah Navajo Sch. Bd., Inc. v. N.M. Taxation & Revenue Dep't, 1999-NMCA-050, 127 N.M. 101, 977 P.2d 1021, cert. denied, 127 N.M. 389, 981 P.2d 1207.

Secretary decides actions on refund claims. — Secretary of the taxation and revenue department has discretion to act or refuse to act on refund claims under Sections 7-1-26A and 7-1-29A NMSA 1978. Unisys Corp. v. N.M. Taxation & Revenue Dep't, 1994-NMCA-059, 117 N.M. 609, 874 P.2d 1273.

Purpose of time deadline in this section is to avoid stale claims, which protects the department's ability to stabilize and predict, with some degree of certainty, the funds it collects and manages. Kilmer v. Goodwin, 2004-NMCA-122, 136 N.M. 440, 99 P.3d 690.

Burden of maintaining active claim. — The time deadline in this section places the burden of maintaining an active claim on the taxpayer and department does not have implied authority to allow claim after 210 days. Kilmer v. Goodwin, 2004-NMCA-122, 136 N.M. 440, 99 P.3d 690.

Strictness of time requirement. — The legislature has stated a definite requirement that it was incumbent upon taxpayers to act within the 210-day window in this section. Kilmer v. Goodwin, 2004-NMCA-122, 136 N.M. 440, 99 P.3d 690.

Running of statutory period. — The statutory period to pursue a remedy under 7-1-26(B)(1) NMSA 1978 begins from the delivery of a notice of denial of refund when the taxation and revenue department mails rather than hand delivers the notice. Schneider Nat'l, Inc. v. N.M. Taxation & Revenue Dep't, 2006-NMCA-128, 140 N.M. 561, 144 P.3d 120.

Letter does not start time running. — Because this section prohibited the department from approving or denying the claim for refund, a letter stating that essential conclusion does not start the time running again. Kilmer v. Goodwin, 2004-NMCA-122, 136 N.M. 440, 99 P.3d 690.

Time limitation not denial of plain and speedy remedy. — Fact that this section limits claims for refund to periods three years from the end of the calendar year in which payment of the New Mexico income tax was due did not deny plaintiffs a plain, speedy and efficient remedy under New Mexico law so as to invoke federal jurisdiction in tax refund case. Lung v. O'Cheskey, 358 F. Supp. 928 (D.N.M.), aff'd, 414 U.S. 802, 94 S. Ct. 159, 38 L. Ed. 2d 39 (1973).

Enactment of limitation not impermissible exercise of state's legislative power. — The enactment of a statute fixing a period of limitations within which to sue the state for a refund does not constitute an impermissible exercise of legislative power of a state. When a statute creates a substantive right and in connection therewith specifies the time within which an action for the enforcement thereof must be instituted, upon failure to institute the action within the specified period, not only the remedy, but the right of action itself, is extinguished. United States v. Bureau of Revenue, 217 F. Supp. 849 (D.N.M. 1963).

Failure to institute action constitutes waiver of protest. — Failure of the atomic energy commission, which had become subrogated to the rights of certain uranium producers to protest the imposition of certain taxes on the proceeds of the uranium sold to it, to bring suit within four months constituted a waiver of the protest and of all claims against the state on account of any illegality in the tax so paid, since the statute created the substantive right to sue the state for a refund and fixed the time within which suit for the enforcement of the right must be instituted. U.S. v. Bureau of Revenue, 217 F. Supp. 849 (D.N.M. 1963).

Estoppel. — Where the department did not make any written representations during the 210-day period about how taxpayers should proceed, and department representative's statements merely informed parties' accountant to wait to see the manner in which the department would decide the issue, such a generic, oral representation does not provide a basis for estoppel. Kilmer v. Goodwin, 2004-NMCA-122, 136 N.M. 440, 99 P.3d 690.

No offset of overpayment against prior liability. — No statute expressly authorizes the taxation and revenue department to apply overpayments of taxes for one reporting period as offsets against underpayments for another prior reporting period. In fact, the legislature has granted the department only the specific authority to credit refunds or overpayments of gas production taxes against future tax payments. The department complied with this provision by allowing taxpayer to net out its overpayment against current tax liabilities on the estimated tax term form when taxpayer filed its amended form reporting an overpayment of taxes for a prior reporting period. Amoco Prod. Co. v. N.M. Taxation & Revenue Dep't, 1994-NMCA-086, 118 N.M. 72, 878 P.2d 1021.

Section not applicable to real property taxes. — Refund procedures of this section are not applicable to real property taxes. Lovelace Ctr. for Health Sciences v. Beach, 1980-NMCA-004, 93 N.M. 793, 606 P.2d 203.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 71 Am. Jur. 2d State and Local Taxation §§ 494, 608 to 611, 629; 72 Am. Jur. 2d State and Local Taxation §§ 1039, 1064 to 1114, 1138, 1154.

Recovery of tax paid under unconstitutional statute or ordinance, 48 A.L.R. 1381, 74 A.L.R. 1301.

Action to recover back tax illegally exacted as one upon contract as regards applicability of limitation statutes, 92 A.L.R. 1360.

Mandamus as a proper remedy for return of a tax illegally or erroneously exacted, 93 A.L.R. 585.

Payment of tax in installments as affecting time for claiming refund under statute requiring claim to be made within specified time after payment of tax, 94 A.L.R. 978.

Right to recover back taxes paid upon property assessed in wrong district, 94 A.L.R. 1223.

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284.

Who as between grantor and grantee, immediate or remote, is entitled to refund of tax or assessment for public improvement against land, 105 A.L.R. 698.

Excessive assessments as within contemplation of statute providing for refunding of taxes "erroneously or illegally charged," 110 A.L.R. 670.

Right to amend claim for refund to taxes after time for filing has expired, 113 A.L.R. 1291.

Grounds stated in protest against payment of property tax as a limitation of grounds upon which recovery of back tax may be claimed, 113 A.L.R. 1479.

Statute repealing or modifying previous statute providing for refunding of taxes illegally or erroneously assessed, collected or paid, as applicable retroactively, 124 A.L.R. 1480.

When statute of limitation commences to run against action to recover tax, 131 A.L.R. 822.

Assignability of claim for tax refund and rights of assignee in respect thereof, 134 A.L.R. 1202.

Right of taxpayer to maintain action for refund of income tax paid by him, without paying the entire tax assessed against him or shown on his return, 138 A.L.R. 1426.

Power or duty, in absence of statute, to allow tax or license fee illegally exacted or erroneously paid as credit on valid tax or license fee, 160 A.L.R. 1423.

Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778.

Right to refund or recovery of back taxes paid on property not owned by taxpayer, 165 A.L.R. 879.

When does special limitation period for filing applications for tax refund begin to run, 175 A.L.R. 1100.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

Propriety of class action in state courts to recover taxes, 10 A.L.R.4th 655.

Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.

What constitutes payment for purposes of commencing limitations period under Internal Revenue Code (26 U.S.C.A. § 6511(a)) for refund of tax overpayments, 160 A.L.R. Fed. 137.

84 C.J.S. Taxation §§ 910-911; 85 C.J.S. Taxation §§ 1763 to 1764.