HOUSE BILL 436
53rd legislature - STATE OF NEW MEXICO - first session, 2017
INTRODUCED BY
Larry R. Scott
AN ACT
RELATING TO TAXATION; PROVIDING THAT A PERSON WHO WILLFULLY ATTEMPTS TO EVADE OR DEFEAT A TAX IS GUILTY OF A SECOND TO FOURTH DEGREE FELONY DEPENDING ON THE AMOUNT AT ISSUE; INCLUDING THE VALUE OF A FRAUDULENT REFUND CLAIM WHEN DETERMINING THE PENALTY FOR COMMITTING TAX FRAUD; INCLUDING THE VALUE OF A FRAUDULENT REFUND CLAIM FILED AS AN AMOUNT USED TO DETERMINE THE PENALTY FOR TAX FRAUD; PROVIDING WHAT CONSISTS OF THE OBSTRUCTION OR IMPEDIMENT OF THE DUE ADMINISTRATION OF THE PROVISIONS OF THE TAX ADMINISTRATION ACT; EXPANDING THE INVESTIGATIONAL DUTIES OF THE TAX FRAUD INVESTIGATIONS DIVISION OF THE TAXATION AND REVENUE DEPARTMENT; PERMITTING COMMISSIONED TAX FRAUD ENFORCEMENT OFFICERS THE AUTHORITY TO MAKE ARRESTS IN CERTAIN CIRCUMSTANCES; PROVIDING PENALTIES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 7-1-72 NMSA 1978 (being Laws 1965, Chapter 248, Section 73) is repealed and new Section 7-1-72 NMSA 1978 is enacted to read:
"7-1-72. [NEW MATERIAL] ATTEMPTS TO EVADE OR DEFEAT TAX--PENALTIES.--
A. In addition to any other penalties provided by law, a person who willfully attempts to evade or defeat any tax or the payment thereof is guilty of the following felonies and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978:
(1) a fourth degree felony if the amount of tax owed or at issue is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500);
(2) a third degree felony if the amount of tax owed or at issue is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000); or
(3) a second degree felony if the amount of tax owed or at issue is over twenty thousand dollars ($20,000).
B. In addition to the penalties provided by this section, a person who commits tax fraud shall pay the costs of the prosecution of the person's case."
SECTION 2. Section 7-1-73 NMSA 1978 (being Laws 1965, Chapter 248, Section 74, as amended) is amended to read:
"7-1-73. TAX FRAUD--PENALTIES.--
A. A person is guilty of tax fraud if the person:
(1) willfully makes and subscribes any return, statement or other document that contains or is verified by a written declaration that it is true and correct as to every material matter and that the person does not believe it to be true and correct as to every material matter;
(2) willfully assists in, willfully procures, willfully advises or willfully provides counsel regarding the preparation or presentation of a return, affidavit, claim or other document pursuant to or in connection with any matter arising under the Tax Administration Act or a tax administered by the department, knowing that it is fraudulent or knowing that it is false as to a material matter, whether or not that fraud or falsity is with knowledge or consent of:
(a) the taxpayer or other person liable for taxes owed on the return; or
(b) a person who signs a document stating that the return, affidavit, claim or other document is true, correct and complete to the best of that person's knowledge;
(3) files any return electronically, knowing the information in the return is not true and correct as to every material matter; or
(4) with intent to evade or defeat the payment or collection of any tax, or, knowing that the probable consequences of the person's act will be to evade or defeat the payment or collection of any tax, removes, conceals or releases any property on which levy is authorized or that is liable for payment of tax under the provisions of Section 7-1-61 NMSA 1978, or aids in accomplishing or causes the accomplishment of any of the foregoing.
B. Whoever commits tax fraud when the amount of the tax owed or the value of a fraudulent refund claim filed is [two hundred fifty dollars ($250)] five hundred dollars ($500) or less, in the aggregate, is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
[C. Whoever commits tax fraud when the amount of the tax owed is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
D.] C. Whoever commits tax fraud when the amount of the tax owed or the value of a fraudulent refund claim filed is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500), in the aggregate, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
[E.] D. Whoever commits tax fraud when the amount of the tax owed or the value of a fraudulent refund claim filed is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000), in the aggregate, is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
[F.] E. Whoever commits tax fraud when the amount of the tax owed or the value of a fraudulent refund claim filed is over twenty thousand dollars ($20,000), in the aggregate, is guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
[G.] F. In addition to the [fines imposed pursuant to] penalties provided by this section, a person who commits tax fraud shall pay the costs of the prosecution of the person's case.
[H.] G. As used in this section:
(1) "tax" does not include civil penalties or interest; and
(2) "willfully" means intentionally, deliberately or purposely, but not necessarily maliciously."
SECTION 3. Section 7-1-74 NMSA 1978 (being Laws 1965, Chapter 248, Section 75) is amended to read:
"7-1-74. INTERFERENCE OR ATTEMPTS CORRUPTLY, FORCIBLY OR BY THREAT TO INTERFERE WITH ADMINISTRATION OF REVENUE LAWS.--
A. Whoever forcibly, or by bribe, threat or other corrupt practice, obstructs or impedes or attempts to obstruct or impede the due administration of the provisions of the Tax Administration Act shall, upon conviction thereof, be fined not less than two hundred fifty dollars ($250) nor more than ten thousand dollars ($10,000) or imprisoned for not less than three months nor more than one year, or both, together with costs of prosecution.
B. Obstructing or impeding the due administration of the provisions of the Tax Administration Act consists of:
(1) knowingly providing false information to or knowingly withholding information from a person authorized to investigate violations of the Tax Administration Act or to enforce the remedies of that act, where that information is material to the investigation or enforcement;
(2) knowingly altering, destroying, mutilating or concealing a document or record required to be retained pursuant to the Tax Administration Act or a regulation issued by the department, when the alteration, destruction, mutilation or concealment is intended to mislead an investigation by a tax fraud investigations division investigator or employee and concerns information material to that investigation; or
(3) knowingly preventing, obstructing, delaying or attempting to prevent, obstruct or delay the communication of information or records relating to a state tax-related investigation or providing or attempting to provide misleading information or records to a tax fraud investigations division investigator or employee authorized to investigate or enforce the remedies of the Tax Administration Act.
C. Whoever commits obstructing or impeding the due administration of the provisions of the Tax Administration Act is guilty of a fourth degree felony and upon conviction shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."
SECTION 4. Section 9-11-14 NMSA 1978 (being Laws 2005, Chapter 108, Section 6) is amended to read:
"9-11-14. POWER TO EMPLOY LAW ENFORCEMENT OFFICERS FOR TAX FRAUD INVESTIGATIONS DIVISION.--
A. The secretary shall employ police officers as commissioned tax fraud enforcement officers as needed in the tax fraud investigations division of the department to:
(1) enforce the tax laws [or to] administered by the department;
(2) investigate fraud and other crimes that may affect the collection of taxes due to the state or that may lead to tax fraud;
(3) investigate any crimes that could occur within the department; and
(4) investigate any crimes under the laws administered by the department, including the Motor Vehicle Code.
B. Except as provided in Subsection C of this section, commissioned tax fraud enforcement officers shall be certified as having completed basic law enforcement training at the New Mexico law enforcement academy or at another recognized certified regional or federal law enforcement training program equivalent to or more stringent than the basic law enforcement training at the New Mexico law enforcement academy.
C. The secretary may employ a peace officer that is not certified; provided that the peace officer will become certified pursuant to Subsection B of this section or by waiver pursuant to Section 29-7-10 NMSA 1978 within one year of being hired.
D. Commissioned tax fraud enforcement officers shall have the authority to make arrests with a court-approved warrant or if a crime within their scope of authority is committed in their presence.
[C.] E. The secretary may require specialized training in addition to the requirements of [Subsection B of] this section.
[D.] F. The secretary shall require continuing in-service law enforcement training for tax fraud enforcement officers as required by the New Mexico law enforcement academy for all police officers."
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