N.M. Stat. § 44-9-12 (2026)

A. A civil action pursuant to the Fraud Against Taxpayers Act may be brought at any
time. A civil action pursuant to the Fraud Against Taxpayers Act may be brought for
conduct that occurred prior to the effective date of that act, but not for conduct that
occurred prior to July 1, 1987.

    B. Notwithstanding any other provision of law, a final judgment rendered in a
criminal proceeding charging fraud or false statement, whether upon a guilty verdict
after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from
denying the essential elements of a fraud against taxpayers action where the criminal
proceeding concerns the same transaction that is the subject of the fraud against
taxpayers action.

    C. In an action brought pursuant to the Fraud Against Taxpayers Act, the state or
political subdivision or the qui tam plaintiff shall be required to prove all essential
elements of the cause of action, including damages, by a preponderance of the
evidence.

History: Laws 2007, ch. 40, § 12; 2015, ch. 128, § 10.

                                       ANNOTATIONS

The 2015 amendment, effective June 19, 2015, included political subdivisions in the
provision relating to the burden of proof and the standard of proof in civil actions brought
pursuant to the Fraud Against Taxpayers Act; and in Subsection C, after "the state",
added "or political subdivision".

The Fraud Against Taxpayers Act is predominantly remedial in nature. — The
Fraud Against Taxpayers Act (FATA), 44-9-1 NMSA 1978 et seq., is predominantly
remedial in nature; the specific legislative designation of FATA proceedings and
penalties as “civil” indicate that the legislature intended to craft a civil statute, and not a
single section of FATA specifies or punishes criminal conduct; the civil penalties and
treble damages under FATA are predominantly compensatory and serve remedial
purposes by encouraging qui tam plaintiffs to expose fraud and corruption in state
government and by offsetting the costs incurred by the government. State ex rel. Foy v.
Austin Capital Mgmt., Ltd., 2015-NMSC-025, aff’g in part, rev’g in part, 2013-NMCA-
043, 297 P.3d 357.

The retroactive application of the Fraud Against Taxpayers Act is constitutional.
— Because the treble damages under The Fraud Against Taxpayers Act (FATA), 44-9-1
NMSA 1978 et seq., are predominantly compensatory and remedial in nature, they do
not violate the ex post facto clause of the United States constitution or the New Mexico
constitution and may be applied retroactively. The New Mexico supreme court declined
to determine whether the civil penalties under FATA, although they possess
predominantly compensatory purposes, may be applied retroactively because the
district court had not yet awarded a definitive civil penalty. State ex rel. Foy v. Austin
Capital Mgmt., Ltd., 2015-NMSC-025, aff’g in part, rev’g in part, 2013-NMCA-043, 297
P.3d 357.

The Fraud Against Taxpayers Act is penal in nature. — The Fraud Against
Taxpayers Act, Section 44-9-1 NMSA 1978 et seq., is penal in nature because the
treble damages provision of the act has historically been regarded as punishment; a
finding of scienter is an element of a violation of the act; the damages available to a
plaintiff under the act involved promote retribution and deterrence, the traditional aims of
punishment; the behavior sanctioned by the act is already considered a crime; and the
penalty for a violation of the act is excessive when compared with its alternative
regulatory and remedial purpose. State ex rel. Foy v. Austin Capital Mgmt. Ltd., 2013-
NMCA-043, 297 P.3d 357, cert. granted, 2013-NMCERT-003.

Retroactive application the Fraud Against Taxpayers Act, Section 44-9-1 NMSA
1978 et seq., violates the ex post facto clause of the United States constitution and the
New Mexico constitution because the act is punitive in nature and the qui tam
component of the act created a new cause of action that is subject to the retroactivity
prohibitions of the ex post facto clause. State ex rel. Foy v. Austin Capital Mgmt. Ltd.,
2013-NMCA-043, 297 P.3d 357, cert. granted, 2013-NMCERT-003.

The retroactivity provision of the Fraud Against Taxpayers Act is severable. —
The retroactivity provision in Subsection A of Section 44-9-12 NMSA 1978 may be
severed from the Fraud Against Taxpayers Act, Section 44-9-1 NMSA 1978 et seq., so
that the remainder of the act remains in full force and effect as applied prospectively.
State ex rel. Foy v. Austin Capital Mgmt. Ltd., 2013-NMCA-043, 297 P.3d 357, cert.
granted, 2013-NMCERT-003.