A. The secretary is empowered and directed to issue and file as required by law all regulations, rulings, instructions or orders necessary to implement and enforce any provision of any law the administration and enforcement of which the department, the secretary, any division of the department or any director of any division of the department is charged, including all rules and regulations necessary by reason of any alteration of any such law. In order to accomplish its purpose, this provision is to be liberally construed.
B. Directives issued by the secretary shall be in form substantially as follows:
(1) regulations shall be written statements of the secretary of general application, interpreting and exemplifying the statutes to which they relate;
(2) rulings shall be written statements of the secretary, of limited application to one or a small number of persons, interpreting the statutes to which they relate, ordinarily issued in response to a request for clarification of the consequences of a specified set of circumstances;
(3) orders shall be written statements of the secretary or delegate of the secretary to implement a decision after a hearing; and
(4) instructions shall be other written statements or directives of the secretary or secretary's delegate not dealing with the merits of any law but otherwise in aid of the accomplishment of the duties of the secretary.
C. To be effective, any ruling or regulation issued by the secretary shall be reviewed by the attorney general or other legal counsel of the department prior to being filed as required by law, and the fact of the review shall be indicated on the ruling or regulation.
D. To be effective, a regulation shall first be issued as a proposed regulation and filed for public inspection in the office of the secretary. Unless otherwise provided by statute, no regulation affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the regulation, the action proposed to be taken, the time and place of the hearing, the manner in which interested parties may present their views and the method by which copies of the proposed regulation, proposed amendment or repeal of an existing regulation may be obtained shall be published at least thirty days prior to the hearing date in the New Mexico register and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. After the proposed regulation has been on file for not less than sixty days and a public hearing on the proposed action has been held by the secretary or a hearing officer designated by the secretary, the secretary may issue it as a final regulation by signing the regulation and filing the regulation in the manner required by law. The secretary shall not delegate the authority to sign regulations.
E. In addition to filing copies of regulations with the state records administrator as required by law, the secretary shall maintain in the office of the secretary a duplicate official set of current and superseded regulations, a set of current and superseded rulings and such additional sets of those regulations and rulings as appear necessary, which duplicate or additional sets shall be available for inspection by the public, but superseded regulations need be maintained for no longer than ten years from the date of supersession.
F. The secretary shall develop and maintain a file of names and addresses of individuals and professional and industry groups having an interest in the promulgation of new, revised or proposed regulations. At convenient times, the secretary shall distribute to these persons all such regulations and all pertinent rulings, making such charges as will defray the expense incurred in their physical preparation and mailing. Such charges are appropriated to the department to defray the costs of preparing and distributing regulations and rulings.
G. Any regulation, ruling, instruction or order issued by the secretary or delegate of the secretary is presumed to be a proper implementation of the provisions of the laws that are charged to the department, the secretary, any division of the department or any director of any division of the department.
H. The extent to which regulations, rulings and orders will have retroactive effect shall be stated, and if no such statement is made, they will be applied prospectively only.
History: Laws 1995, ch. 31, § 3; 2015, ch. 73, § 23.
ANNOTATIONSCross references. — For state records center, see 14-3-8 NMSA 1978.
For the State Rules Act, see Chapter 14, Article 4 NMSA 1978.
The 2015 amendment, effective July 1, 2015, amended the Taxation and Revenue Department Act by removing "hearing officers" from provisions that authorized the secretary or delegate of the secretary to issue administrative orders for the taxation and revenue department; in Subsection B, Paragraph (1), after "exemplifying the", changed "statues" to "statutes"; in Subsection B, Paragraph (3), after "statements of the secretary or", deleted "a hearing officer or other"; in Subsection D, after "prior to the hearing date in", deleted "a"; in Subsection E, after "state records", deleted "center" and added "administrator"; and in Subsection G, after "issued by the secretary or", deleted "order or instruction issued by a hearing officer or other".
Retroactive effect. — Whether or not a ruling has retroactive effect is limited to the effect of the ruling itself, and any failure to provide expressly for retroactivity does not change the law that was in effect prior to the ruling. Amoco Prod. Co. v. Taxation & Revenue Dep't, 2003-NMCA-092, 134 N.M. 162, 74 P.3d 96.
Judicial review of rulings. — The legislature has provided a comprehensive scheme for protesting department of revenue and county actions. In not providing more specifically for judicial review of a ruling, the legislative intent was that the ruling should be applied before it is reviewed, in the absence of some applicable exception. Grand Lodge of Ancient & Accepted Masons v. Taxation & Revenue Dep't, 1987-NMCA-081, 106 N.M. 179, 740 P.2d 1163, cert. denied, 106 N.M. 174, 740 P.2d 1158 (decided under prior law).
Director's (now secretary's) instructions to be in ordinary language. — To aid in the accomplishment of his duties, instructions issued by the director (now secretary) to every resident individual upon whom an income tax is imposed should be in ordinary, everyday language understood by the man or woman on the street. Davis v. N.M. State Bureau of Revenue, 1980-NMCA-153, 95 N.M. 218, 620 P.2d 376 (decided under prior law).
Director (now secretary) has authority to issue regulations interpreting and exemplifying statutes concerning the possession of nontaxable transaction certificates and he also has such authority as may be fairly implied from the statutory authorization. Rainbo Baking Co. v. Commissioner of Revenue, 1972-NMCA-139, 84 N.M. 303, 502 P.2d 406 (decided under prior law).
Presumption of validity overcome by showing regulation void. — A showing of a void time requirement established by a regulation of the commissioner (now secretary) overcame the presumption of validity stated in former Section 7-1-5 NMSA 1978. Rainbo Baking Co. v. Commissioner of Revenue, 1972-NMCA-139, 84 N.M. 303, 502 P.2d 406 (decided under prior law).
Director (now secretary) reversed for arbitrariness. — Since the commissioner (now secretary), before arriving at a decision, did not consider all of the evidence presented at the hearing but only that pertaining to the "indicia" under G.R. Regulation 12.5:1, the court could not say that he would have reached the same conclusion had all of "the evidence presented and admitted" been considered as required by Section 7-1-24 NMSA 1978 and therefore held the ruling reversed for arbitrariness. Eaton v. Bureau of Revenue, 1972-NMCA-114, 84 N.M. 226, 501 P.2d 670, cert. denied, 84 N.M. 219, 501 P.2d 663 (decided under prior law).
Director (now secretary) is a state officer. State ex rel. Bureau of Revenue v. MacPherson, 1968-NMSC-106, 79 N.M. 272, 442 P.2d 584, overruled by N.M. Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606 (decided under prior law).