HOUSE BILL 189

49th legislature - STATE OF NEW MEXICO - second session, 2010

INTRODUCED BY

Jim R. Trujillo

AN ACT

RELATING TO TAXATION; IMPOSING A SURTAX ON CERTAIN RESTAURANT RECEIPTS; CREATING THE TOURISM PROMOTION FUND AND DISTRIBUTING REVENUE TO THE FUND; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. A new section of the Tax Administration Act is enacted to read:

     "[NEW MATERIAL] DISTRIBUTIONS OF RESTAURANT SURTAX.--A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the tourism promotion fund in an amount equal to the net receipts attributable to the restaurant surtax."

     Section 2. A new section of the Gross Receipts and Compensating Tax Act is enacted to read:

     "[NEW MATERIAL] RESTAURANT SURTAX.--

          A. The tax imposed by Section 7-9-4 NMSA 1978 is increased by a surtax imposed at the rate of one-fourth percent on the gross receipts of a prepared food or alcoholic beverage retailer from the sale of prepared food and alcoholic beverages. The surtax imposed by this section may be referred to as the "restaurant surtax".

          B. The restaurant surtax shall be administered by the department pursuant to the Tax Administration Act.

          C. As used in this section:

                (1) "alcoholic beverages" means distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters or any similar beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol by volume, but "alcoholic beverages" does not include medicinal bitters;

                (2) "prepared food or alcoholic beverage retailer" means an establishment that sells prepared food or alcoholic beverages, where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Prepared food or alcoholic beverage retailer" includes an establishment, as defined in rules promulgated by the department, that serves only pizza, hamburgers, sandwiches, salads and other fast foods; and

                (3) "prepared food" means food prepared for immediate consumption that is not subject to the deduction provided in Section 7-9-92 NMSA 1978."

     Section 3. [NEW MATERIAL] TOURISM PROMOTION FUND CREATED--FUND ADMINISTRATION.--The "tourism promotion fund" is created in the state treasury. The fund consists of distributions of the restaurant surtax, income from investment of the fund, money appropriated to the fund, gifts, grants, fees, penalties, bequests or any other source. The tourism department shall administer the fund, and money in the fund is appropriated to the tourism department for advertising and the promotion of New Mexico tourism. Money in the fund shall not revert to the general fund at the end of a fiscal year. Disbursements from the fund shall be made only upon warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of tourism.

     Section 4. Section 7-1-2 NMSA 1978 (being Laws 1965, Chapter 248, Section 2, as amended) is amended to read:

     "7-1-2. APPLICABILITY.--The Tax Administration Act applies to and governs:

          A. the administration and enforcement of the following taxes, surtaxes or tax acts as they now exist or may hereafter be amended:

                (1) Income Tax Act;

                (2) Withholding Tax Act;

                (3) Venture Capital Investment Act;

                (4) Gross Receipts and Compensating Tax Act and any state gross receipts tax;

                (5) Liquor Excise Tax Act;

                (6) Local Liquor Excise Tax Act;

                (7) any municipal local option gross receipts tax;

                (8) any county local option gross receipts tax;

                (9) Special Fuels Supplier Tax Act;

                (10) Gasoline Tax Act;

                (11) petroleum products loading fee, which fee shall be considered a tax for the purpose of the Tax Administration Act;

                (12) Alternative Fuel Tax Act;

                (13) Cigarette Tax Act;

                (14) Estate Tax Act;

                (15) Railroad Car Company Tax Act;

                (16) Investment Credit Act, rural job tax credit, Laboratory Partnership with Small Business Tax Credit Act, Technology Jobs Tax Credit Act, film production tax credit, New Mexico filmmaker tax credit, Affordable Housing Tax Credit Act, high-wage jobs tax credit and Research and Development Small Business Tax Credit Act;

                (17) Corporate Income and Franchise Tax Act;

                (18) Uniform Division of Income for Tax Purposes Act;

                (19) Multistate Tax Compact;

                (20) Tobacco Products Tax Act; [and]

                (21) the telecommunications relay service surcharge imposed by Section 63-9F-11 NMSA 1978, which surcharge shall be considered a tax for the purposes of the Tax Administration Act; and

                (22) the restaurant surtax;

          B. the administration and enforcement of the following taxes, surtaxes, advanced payments or tax acts as they now exist or may hereafter be amended:

                (1) Resources Excise Tax Act;

                (2) Severance Tax Act;

                (3) any severance surtax;

                (4) Oil and Gas Severance Tax Act;

                (5) Oil and Gas Conservation Tax Act;

                (6) Oil and Gas Emergency School Tax Act;

                (7) Oil and Gas Ad Valorem Production Tax Act;

                (8) Natural Gas Processors Tax Act;

                (9) Oil and Gas Production Equipment Ad Valorem Tax Act;

                (10) Copper Production Ad Valorem Tax Act;

                (11) any advance payment required to be made by any act specified in this subsection, which advance payment shall be considered a tax for the purposes of the Tax Administration Act;

                (12) Enhanced Oil Recovery Act;

                (13) Natural Gas and Crude Oil Production Incentive Act; and

                (14) intergovernmental production tax credit and intergovernmental production equipment tax credit;               C. the administration and enforcement of the following taxes, surcharges, fees or acts as they now exist or may hereafter be amended:

                (1) Weight Distance Tax Act;

                (2) the workers' compensation fee authorized by Section 52-5-19 NMSA 1978, which fee shall be considered a tax for purposes of the Tax Administration Act;

                (3) Uniform Unclaimed Property Act (1995);

                (4) 911 emergency surcharge and the network and database surcharge, which surcharges shall be considered taxes for purposes of the Tax Administration Act;

                (5) the solid waste assessment fee authorized by the Solid Waste Act, which fee shall be considered a tax for purposes of the Tax Administration Act;

                (6) the water conservation fee imposed by Section 74-1-13 NMSA 1978, which fee shall be considered a tax for the purposes of the Tax Administration Act; and

                (7) the gaming tax imposed pursuant to the Gaming Control Act; and

          D. the administration and enforcement of all other laws, with respect to which the department is charged with responsibilities pursuant to the Tax Administration Act, but only to the extent that the other laws do not conflict with the Tax Administration Act."

     Section 5. APPLICABILITY.--A distribution pursuant to Section 1 of this act applies to receipts from the restaurant surtax that are attributable to transactions subject to the surtax on or after July 1, 2010.

     Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.

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