1. A. A person is guilty of tax fraud if the person:

   1. (1) willfully makes and subscribes any return, statement or other document that contains or is verified by a written declaration that it is true and correct as to every material matter and that the person does not believe it to be true and correct as to every material matter;

   2. (2) willfully assists in, willfully procures, willfully advises or willfully provides counsel regarding the preparation or presentation of a return, affidavit, claim or other document pursuant to or in connection with any matter arising under the Tax Administration Act or a tax administered by the department, knowing that it is fraudulent or knowing that it is false as to a material matter, whether or not that fraud or falsity is with knowledge or consent of:

      1. (a) the taxpayer or other person liable for taxes owed on the return; or
      2. (b) a person who signs a document stating that the return, affidavit, claim or other document is true, correct and complete to the best of that person's knowledge;
   3. (3) files any return electronically, knowing the information in the return is not true and correct as to every material matter;
   4. (4) with intent to evade or defeat the payment or collection of any tax, or, knowing that the probable consequences of the person's act will be to evade or defeat the payment or collection of any tax, removes, conceals or releases any property on which levy is authorized or that is liable for payment of tax under the provisions of Section 7-1-61 NMSA 1978, or aids in accomplishing or causes the accomplishment of any of the foregoing;
   5. (5) with intent to evade or defeat the payment or collection of any tax, or, knowing that the probable consequences of the person's act will be to evade or defeat the payment or collection of any tax, purchases, installs or uses any sales suppression software; or
   6. (6) with the intent to evade or defeat the payment or collection of any tax, or, knowing that the probable consequences of the person's act will be to evade or defeat the payment or collection of any tax, sells, licenses, purchases, installs, transfers, sells as a service, manufactures, develops or possesses any sales suppression software with the purpose to defeat or evade the payment or collection of any tax.
2. B. Whoever commits tax fraud when the amount of the tax owed is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
3. C. Whoever commits tax fraud when the amount of the tax owed is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
4. D. Whoever commits tax fraud when the amount of the tax owed is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
5. E. Whoever commits tax fraud when the amount of the tax owed is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
6. F. Whoever commits tax fraud when the amount of the tax owed is over twenty thousand dollars ($20,000) is guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
7. G. In addition to the fines imposed pursuant to this section, a person who commits tax fraud shall pay the costs of the prosecution of the person's case.

8. H. As used in this section:

   1. (1) "sales suppression software" means hidden or concealed computer software, also known as phantomware, for a point-of-sale system that can create a second set of records or eliminate or manipulate transaction records that may or may not be preserved in digital formats in order to misrepresent the existence or the true record of a transaction in the point-of-sale system. "Sales suppression software" includes an electronic device that carries or contains sales suppression software;
   2. (2) "tax" does not include civil penalties or interest; and
   3. (3) "willfully" means intentionally, deliberately or purposely, but not necessarily maliciously.

History: 1953 Comp., § 72-13-86, enacted by Laws 1965, ch. 248, § 74; 1978 Comp., § 7-1-73; 1979, ch. 144, § 60; 1989, ch. 325, § 12; 1992, ch. 55, § 17; 2005, ch. 108, § 3; 2006, ch. 29, § 1; 2023, ch. 36, § 4.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, provided that evading or defeating a tax with sales suppression software constitutes tax fraud, and defined "sales suppression software"; in Subsection A, added Paragraphs A(5) and A(6); and in Subsection H, added a new Paragraph H(1) and redesignated former Paragraphs H(1) and H(2) as Paragraphs H(2) and H(3), respectively.

The 2006 amendment, effective July 1, 2006, changed the crime from "false statement and fraud" to "tax fraud" in Subsection A; deleted the former provision at the end of Paragraph (4) of Subsection A, which provided that a violation of Subsection A was a felony; added Subsections B through F to provide a schedule for sentencing for different degrees of tax fraud; and added Subsection G to provide that in addition to fines, a person who commits tax fraud shall pay the cost of prosecution.

The 2005 amendment, effective June 17, 2005, added Subsection A(2) to provide that a person is guilty of a felony if the person willfully acts in the preparation or presentation of a document with respect to a matter under the Tax Administration Act or a tax administered by the taxation and revenue department knowing that it is false or fraudulent; deleted from Subsection A(4) the statement of the penalty for conviction of a felony under this section; and added Subsection B to provide definitions of "tax" and "willfully".

The 1992 amendment, effective July 1, 1992, added Subsection B, redesignated former Subsection B as Subsection C, and made minor stylistic changes throughout the section.

The 1989 amendment, effective June 16, 1989, in Subsection A, substituted "that it is true and correct as to every material matter and which the individual or person does not" for "that it is made under the penalties of perjury and which he does not".

Traditional standard of proof applied in tax fraud cases. — Court of appeals would not require a higher standard of proof in terms of criminal intent in tax fraud cases, choosing instead to follow the traditional standard of appellate review in criminal cases. State v. Martin, 1977-NMCA-049, 90 N.M. 524, 565 P.2d 1041, cert. denied, 90 N.M. 636, 567 P.2d 485, overruled on other grounds by State v. Wilson, 1994-NMSC-009, 116 N.M. 793, 867 P.2d 1175.

To meet willfulness requirement of section, all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing. State v. Sparks, 1985-NMCA-004, 102 N.M. 317, 694 P.2d 1382.

UJI Criminal 1.50 (UJI 14-141 NMRA), the instruction on general criminal intent, is required in prosecutions for false statements on tax returns. State v. Sparks, 1985-NMCA-004, 102 N.M. 317, 694 P.2d 1382.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Reliance on attorney, accountant or other expert in preparing income tax returns as defense against fraud penalties, 22 A.L.R.2d 972.

Tax preparer's willful assistance in preparation of false or fraudulent tax returns under § 7206(2) of Internal Revenue Code of 1954 (26 USCS § 7206(2)), 43 A.L.R. Fed. 128.

85 C.J.S. Taxation § 1591.