HOUSE BILL 57
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Ray Begaye
AN ACT
RELATING TO LIQUOR EXCISE TAXES; AUTHORIZING EACH COUNTY TO IMPOSE A LOCAL LIQUOR SURTAX; LIMITING RATES OF LOCAL LIQUOR SURTAXES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. 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 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] Surtax 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;
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 2. Section 7-1-6.15 NMSA 1978 (being Laws 1983, Chapter 211, Section 20, as amended) is amended to read:
"7-1-6.15. ADJUSTMENTS OF DISTRIBUTIONS OR TRANSFERS TO MUNICIPALITIES OR COUNTIES.--
A. The provisions of this section apply to:
(1) any distribution to a municipality of gross receipts taxes pursuant to Section 7-1-6.4 NMSA 1978 or of interstate telecommunications gross receipts tax pursuant to Section 7-1-6.36 NMSA 1978;
(2) any transfer to a municipality with respect to any local option gross receipts tax imposed by that municipality;
(3) any transfer to a county with respect to any local option gross receipts tax imposed by that county;
(4) any distribution to a county pursuant to Section 7-1-6.16 NMSA 1978;
(5) any distribution to a municipality or a county of gasoline taxes pursuant to Section 7-1-6.9 NMSA 1978;
(6) any transfer to a county with respect to any tax imposed in accordance with the Local Liquor [Excise Tax] Surtax Act;
(7) any distribution to a municipality or a county of cigarette taxes pursuant to Sections 7-1-6.11, 7-12-15 and 7-12-16 NMSA 1978;
(8) any distribution to a county from the county government road fund pursuant to Section 7-1-6.26 NMSA 1978;
(9) any distribution to a municipality of gasoline taxes pursuant to Section 7-1-6.27 NMSA 1978; and
(10) any distribution to a municipality of compensating taxes pursuant to Section 7-1-6.55 NMSA 1978.
B. If the secretary determines that any prior distribution or transfer to a political subdivision was erroneous, the secretary shall increase or decrease the next distribution or transfer amount for that political subdivision after the determination, except as provided in Subsection C, D or E of this section, by the amount necessary to correct the error. Subject to the provisions of Subsection E of this section, the secretary shall notify the political subdivision of the amount of each increase or decrease.
C. No decrease shall be made to current or future distributions or transfers to a political subdivision for any excess distribution or transfer made to that political subdivision more than one year prior to the calendar year in which the determination of the secretary was made.
D. The secretary, in lieu of recovery from the next distribution or transfer amount, may recover an excess distribution or transfer of one hundred dollars ($100) or more to the political subdivision in installments from current and future distributions or transfers to that political subdivision pursuant to an agreement with the officials of the political subdivision whenever the amount of the distribution or transfer decrease for the political subdivision exceeds ten percent of the average distribution or transfer amount for that political subdivision for the twelve months preceding the month in which the secretary's determination is made; provided that for the purposes of this subsection, the "average distribution or transfer amount" shall be the arithmetic mean of the distribution or transfer amounts within the twelve months immediately preceding the month in which the determination is made.
E. Except for the provisions of this section, if the amount by which a distribution or transfer would be adjusted pursuant to Subsection B of this section is one hundred dollars ($100) or less, no adjustment or notice need be made.
F. The secretary is authorized to decrease a distribution to a municipality or county upon being directed to do so by the secretary of finance and administration pursuant to the State Aid Intercept Act or to redirect a distribution to the New Mexico finance authority pursuant to an ordinance or a resolution passed by the county or municipality and a written agreement of the municipality or county and the New Mexico finance authority. Upon direction to decrease a distribution or notice to redirect a distribution to a municipality or county, the secretary shall decrease or redirect the next designated distribution, and succeeding distributions as necessary, by the amount of the state distributions intercept authorized by the secretary of finance and administration pursuant to the State Aid Intercept Act or by the amount of the state distribution intercept authorized pursuant to an ordinance or a resolution passed by the county or municipality and a written agreement with the New Mexico finance authority. The secretary shall transfer the state distributions intercept amount to the municipal or county treasurer or other person designated by the secretary of finance and administration or to the New Mexico finance authority pursuant to written agreement to pay the debt service to avoid default on qualified local revenue bonds or meet other local revenue bond, loan or other debt obligations of the municipality or county to the New Mexico finance authority."
Section 3. Section 7-24-8 NMSA 1978 (being Laws 1989, Chapter 326, Section 1, as amended) is amended to read:
"7-24-8. SHORT TITLE.--Sections 7-24-8 through 7-24-16 NMSA 1978 may be cited as the "Local Liquor [Excise Tax] Surtax Act"."
Section 4. Section 7-24-9 NMSA 1978 (being Laws 1989, Chapter 326, Section 2) is amended to read:
"7-24-9. DEFINITIONS.--As used in the Local Liquor [Excise Tax] Surtax Act:
A. "alcoholic beverages" means distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin and aromatic bitters or any similar alcoholic beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half of one percent alcohol, but excluding medicinal bitters;
B. "county" means [a class B] any county [having a population of more than fifty-six thousand but less than seventy-five thousand, according to the most recent federal decennial census or any subsequent decennial census, and having a net taxable value for rate-setting purposes for the 1988 or any subsequent property tax year of more than five hundred million dollars ($500,000,000) but less than seven hundred million dollars ($700,000,000)] in the state;
C. "department" means the taxation and revenue department, the secretary of taxation and revenue or any employee of the department exercising authority lawfully delegated to that employee by the secretary;
D. "governing body" means the board of county commissioners of a county;
E. "person" means any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other association; "person" also means, to the extent permitted by law, any federal, state or other governmental unit or subdivision or agency, department or instrumentality thereof;
F. "price" means the total amount of money or the reasonable value of other consideration or both paid for alcoholic beverages, inclusive of the amount of any tax paid pursuant to the Liquor Excise Tax Act; [and]
G. "retailer" means any person having a place of business within the county who sells, offers for sale or possesses for the purpose of selling alcoholic beverages within the county;
H. "surtax" means the local liquor surtax; and
I. "wholesaler" means any person that sells alcoholic beverages in unbroken packages to a retailer for resale."
Section 5. Section 7-24-10 NMSA 1978 (being Laws 1989, Chapter 326, Section 3) is amended to read:
"7-24-10. AUTHORIZATION TO IMPOSE LOCAL LIQUOR [EXCISE TAX] SURTAX--RATE--USE OF PROCEEDS--ELECTION REQUIRED.--
A. The majority of the members elected to the governing body may enact an ordinance imposing on [any retailer an] all wholesalers distributing alcoholic beverages to retailers in the county a local liquor surtax to be paid to the state in addition to the liquor excise tax [on the price paid by the retailer for alcoholic beverages purchased by the retailer] of up to twenty-five percent of the liquor excise tax due on the sale of the alcoholic beverages distributed by the wholesaler upon which the [tax] surtax imposed by this section has not been paid. [The tax may be imposed at a rate not to exceed five percent, provided that any lower rate shall be an even multiple of one percent.] The [tax] surtax imposed [under] pursuant to this section may be referred to as the "local liquor [excise tax] surtax". Any [tax] surtax imposed [under] pursuant to this section shall be for a period of not more than three years from the effective date of [the ordinance imposing] the [tax] surtax. Within the final year that the surtax is in effect, the governing body may impose the surtax for another three-year period, to begin in the month following the termination of the surtax currently in effect, and submit the question of the surtax to the voters of the county in the same manner as was required to approve the original surtax.
B. The governing body at the time of enacting an ordinance imposing the [tax] local liquor surtax authorized in [Subsection A of] this section shall dedicate the revenue to fund educational programs [and] for the prevention of and treatment [of] for alcoholism and drug abuse within the county and for no other purpose. After approval of the imposition of a local liquor [excise tax] surtax by the voters but before the effective date of the ordinance, the governing body shall hold a public meeting for the purpose of inviting comment on and suggestions for the most appropriate programs on which to expend the revenue produced by the [tax] surtax. The governing body shall invite representatives from the appropriate Indian [tribes] nations, tribes and pueblos located in New Mexico to the meeting. If the governing body awards [any] a contract using funds derived from the local liquor [excise tax] surtax, it shall do so only through a selection process requiring submission of sealed bids or proposals after public notice of the opportunity to submit the sealed bids or proposals.
C. The governing body enacting an ordinance imposing the local liquor [excise tax] surtax shall submit the question of imposing the [tax] surtax to the qualified voters of the county at a regular or special election.
D. Only those voters who are registered within the county shall be permitted to vote. The election shall be called, conducted and canvassed in substantially the same manner as provided by law for general elections.
E. If at an election called pursuant to this section a majority of the voters voting on the question [vote] votes in the affirmative on the question, then the ordinance imposing the local liquor [excise tax] surtax shall be approved. If at such an election a majority of the voters voting on the question [fail] fails to approve the question, then the ordinance shall be disapproved and the question required to be submitted by Subsection [B] C of this section shall not be submitted to the voters for a period of at least one year from the date of the election.
F. [Any] An ordinance enacted under the provisions of this section [which] that imposes a local liquor [excise tax] surtax or changes the rate of [tax] surtax imposed shall include an effective date [which] that is the first day of any month [which] that begins no earlier than ninety days after the date of the election. A certified copy of any ordinance imposing a local liquor [excise tax] surtax shall be mailed or personally delivered to the department within five days after the ordinance is certified to have been approved by the voters.
G. Any ordinance repealing the imposition of a [tax under] surtax pursuant to the provisions of this section shall contain an effective date [which] that is the first day of any month beginning no earlier than sixty days from the date the ordinance repealing the [tax] surtax is adopted by the governing body. A certified copy of any ordinance repealing a local liquor [excise tax] surtax shall be mailed or personally delivered to the department within five days of the date the ordinance is adopted."
Section 6. Section 7-24-10.1 NMSA 1978 (being Laws 1992, Chapter 35, Section 1) is amended to read:
"7-24-10.1. USE OF [TAX] SURTAX PROCEEDS--LOCAL LIQUOR [EXCISE TAX] SURTAX COMMITTEE--JOINT POWERS AGREEMENT--COMMUNITY PARTICIPATION.--
A. Prior to [the] an election on the question of imposing a local liquor [excise tax] surtax pursuant to the provisions of the Local Liquor [Excise Tax] Surtax Act, the governing body of a county shall enter into a joint powers agreement with the governing body of the most populated municipality and the governing bodies of any other municipalities in the county that choose to be parties to the agreement to provide for the use and administration of the [tax] surtax proceeds. The agreement shall provide for the establishment and appointment of a local liquor [excise tax] surtax committee to provide advice, assist in preventing duplication and supplanting of program funding and make recommendations to the governing body of [a] the county and the municipal governing bodies that are parties to the agreement on the use of the [tax] surtax proceeds and may include agreements that:
(1) clearly specify the use of the proceeds of the proposed local liquor [excise tax] surtax, including the identification of specific local programs, agencies or entities that will be funded from the [tax] surtax proceeds; and
(2) determine the allocation of election expenses among the parties to the agreement.
B. Prior to [any] the agreement by the governing body of a county and the municipal governing bodies for use of the [tax] proposed local liquor surtax proceeds, the local liquor [excise tax] surtax committee established pursuant to the [joint powers agreement in Subsection A] provisions of this section shall conduct a public hearing for the purpose of inviting public comment on use of the proposed local liquor [excise tax] surtax proceeds. The committee shall make every effort to provide public notice of the hearing and to invite a broad cross-section of community representatives and groups to comment on community needs. Following the hearing, the committee shall make its funding recommendations to the governing body of [a] the county and the municipal governing bodies."
Section 7. Section 7-24-11 NMSA 1978 (being Laws 1989, Chapter 326, Section 4) is amended to read:
"7-24-11. DATE PAYMENT DUE.--The [tax] surtax imposed by the Local Liquor [Excise Tax] Surtax Act is to be paid on or before the twenty-fifth day of the month following the month in which the taxable event occurs."
Section 8. Section 7-24-12 NMSA 1978 (being Laws 1989, Chapter 326, Section 5) is amended to read:
"7-24-12. EXEMPTION.--Exempted from the local liquor [excise tax] surtax is the purchase of alcoholic beverages by any instrumentality of the armed forces of the United States engaged in resale activities."
Section 9. Section 7-24-14 NMSA 1978 (being Laws 1989, Chapter 326, Section 7) is amended to read:
"7-24-14. REFUND OR CREDIT OF [TAX] SURTAX.--An ordinance imposing a local liquor [excise tax] surtax shall provide for and the department shall allow a claim for refund, in accordance with the provisions of the Tax Administration Act, for the local liquor [excise tax] surtax paid on alcoholic beverages destroyed in shipment or otherwise damaged so as to be unfit for sale or consumption or shipped out of the county, upon submission of proof satisfactory to the department of such destruction, damage or out-of-county shipment."
Section 10. Section 7-24-15 NMSA 1978 (being Laws 1989, Chapter 326, Section 8) is amended to read:
"7-24-15. ADMINISTRATIVE CHARGE.--The department may deduct an amount not to exceed five percent of the proceeds of a local liquor [excise tax] surtax as a charge for the administrative costs of collection, which amount shall be retained by the department for use in administration of the Local Liquor [Excise Tax] Surtax Act."
Section 11. Section 7-24-16 NMSA 1978 (being Laws 1989, Chapter 326, Section 9) is amended to read:
"7-24-16. INTERPRETATION OF ACT--ADMINISTRATION AND ENFORCEMENT OF THE [TAX] SURTAX.--
A. The department shall interpret the provisions of the Local Liquor [Excise Tax] Surtax Act.
B. The department shall administer and enforce the Local Liquor [Excise Tax] Surtax Act, and the Tax Administration Act applies to the collection and enforcement of the local liquor [excise tax] surtax."
Section 12. REPEAL.--Section 7-24-13 NMSA 1978 (being Laws 1989, Chapter 326, Section 6) is repealed.
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