N.M. Stat. » N.M. Stat. / Chapter 7 / Article 1
New Mexico Statutes

N.M. Stat. § 7-1-23 (2026)

Disputing liabilities; election of remedies.

✓ current as of May 2026
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A taxpayer may dispute the taxpayer's liability for taxes only by protesting the
assessment of taxes as provided in Section 7-1-24 NMSA 1978 without making
payment or by claiming a refund as provided in Section 7-1-26 NMSA 1978 after making
payment of the taxes the department asserts are owed. The pursuit of one of the two
remedies constitutes an unconditional waiver of the right to pursue the other.

History: 1953 Comp., § 72-13-37, enacted by Laws 1965, ch. 248, § 25; 1979, ch. 144,
§ 22; 2013, ch. 27, § 5; 2017, ch. 63, § 24; 2019, ch. 157, § 2.

                                     ANNOTATIONS

The 2019 amendment, effective June 14, 2019, clarified certain provisions related to
disputing tax liabilities; after "A taxpayer", deleted "must elect to" and added "may", after
"taxpayer's liability for", deleted "the payment of", after the next occurrence of "taxes",
deleted "either" and added "only", after "without making payment", deleted "of the
disputed tax liability", and after "making payment of the", deleted "disputed tax liability"
and added "taxes the department asserts are owed".

The 2017 amendment, effective June 16, 2017, after each occurrence of "making
payment", added "of the disputed tax liability".

The 2013 amendment, effective July 1, 2013, at the beginning of the title, added
"Disputing liabilities".

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.
Notes of Decisions
Cited in 14 cases (4 in the last 5 years), 1981–2024 · leading case: Kaiser Steel Corp. v. Revenue Div., Taxation & Revenue Dep't, 628 P.2d 687 (N.M. Ct. App. 1981).
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Kaiser Steel Corp. v. Revenue Div., Taxation & Revenue Dep't, 628 P.2d 687 (N.M. Ct. App. 1981). · cites it 4× “§ 7-1-23. If the taxpayer protests without making payments he is entitled to an administrative hearing before the Director.”
US Xpress v. Taxation & Revenue Dept., 136 P.3d 999 (N.M. 2006). · cites it 2× “NMSA 1978, § 7-1-23 (2006). Under the administrative hearing remedy, a taxpayer may protest the assessment of the tax without making payment.”
Tiffany Constr. Co. v. Bureau of Revenue, 629 P.2d 1225 (N.M. 1981). · cites it 4× “The district court held that Tiffany was not entitled to a refund because Tiffany's previous protest of only the penalty constituted an election of remedies as to the earlier assessment pursuant to Section 7-1-23, N.M.S.A. 1978 (Repl.Pamp.”
Kewanee Indus., Inc. v. Reese, 845 P.2d 1238 (N.M. 1993). · cites it 2× “Section 7-1-23. In Case No. 20,732, Kewanee protested without payment and was, therefore, entitled to an administrative hearing.”
State ex rel. Shell W. E & P, Inc. v. Chavez, 2002 NMCA 005 (N.M. Ct. App. 2001). · cites it 3× “by the secretary to waive the taxpayer’s election of remedies under Section 7-1-23 NMSA 1978 upon a resolution of the protest favorably to the taxpayer so as to permit the taxpayer to file a claim for refund for the portion of the protested assessment resolved in favor of the…”
State Ex Rel. Shell W. v. Chavez, 38 P.3d 886 (N.M. Ct. App. 2001). · cites it 3× “by the secretary to waive the taxpayer's election of remedies under Section 7-1-23 NMSA 1978 upon a resolution of the protest favorably to the taxpayer so as to permit the taxpayer to file a claim for refund for the portion of the protested assessment resolved in favor of the…”
Weatherford Artificial Lift Sys. v. Clarke, 2021 NMCA 065 (N.M. Ct. App. 2021). · cites it 2× “” Section 7-1-26(C) (2015); see also § 7-1-23 (2013) (“The pursuit of one of the two remedies .”
Neff v. State ex rel. Taxation & Revenue Dep't, 861 P.2d 281 (N.M. Ct. App. 1993). “See § 7-1-22; see also § 7-1-23 (requiring taxpayer to elect one of these two remedies).”
U.S. Xpress, Inc. v. New Mexico Taxation & Revenue Dep't, 2005 NMCA 091 (N.M. Ct. App. 2005). “§ 7-1-23. He may either (1) refuse to pay the tax and file a written protest with the secretary of the Department under Section 7-1-24, or (2) he may pay the tax and file a claim for a refund with the secretary under Section 7-1-26.”
Citibank of South Dakota v. N.M. Tax'n & Revenue Dep't (N.M. Ct. App. 2024). · cites it 3× “See § 7-1-23 (“Disputing liabilities; election of remedies.”
Elite Well v. N.M. Tax'n & Revenue Dep't (N.M. Ct. App. 2023). · cites it 2× “without making payment or [(2)] by claiming a refund as provided 13 in Section 7-1-26 . . . after making payment of the taxes the department 14 asserts are owed.”
Elite Well v. N.M. Tax'n & Revenue Dep't (N.M. Ct. App. 2023). · cites it 2× “without making payment or [(2)] by claiming a refund as provided in Section 7-1-26 .”
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