September 17, 2019- Family Workshop v. New Mexico Taxation and Revenue Department, No. A-1-CA-35254

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

JEFFREY BURROWS,

Protestants-A ppellants, : Mark Reynoltis

V. No. A-1-CA-35254

NEW MEXICO TAXATION AND
REVENUE DEPARTMENT

os aves we ew tVa eSNG

Respondent-Appellee,

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IN THE MATTER OF THE PROTESTS
OF THE FAMILY WORKSHOP, LLC

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and JEFFREY BURROWS, TO
ASSESSMENTS ISSUED UNDER
| LETTER ID NOS. L0029171664,

| FAMILY WORKSHOP, LLC and Filed 9/17/2019 9:02 AM}

L0283733968, AND TO STATEMENT
OF ACCOUNT LETTER ID NO.

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L0425586640.

APPEAL FROM THE ADMINISTRATIVE HEARINGS OFFICE

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Dee Dee Hoxie, Hearing Officer

Wayne G. Chew, P.C.

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Wayne G. Chew
Albuquerque, NM

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for Appellants

Hector H. Balderas, Attorney General

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Cordelia Friedman, Special Assistant Attorney General
Santa Fe, NM

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for Appellee

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MEMORANDUM OPINION
BOGARDUS, Judge.
4} Family Workshop, LLC and Jeffrey Burrows (collectively, Taxpayer) appeal
from a decision and order of the Administrative Hearings Office (AHO) granting in
part and denying in part Taxpayer’s protest of the New Mexico Taxation and
Revenue Department’s (the Department) tax, penalty, and interest assessments.
Because Taxpayer’s failure to comply with our Rules of Appellate Procedure
prevents us from providing meaningful appellate review of the decision and order,
we dismiss Taxpayer’s appeal.
BACKGROUND
2} Given that the parties are familiar with the facts and details of this case, we
only briefly set forth pertinent facts and applicable law in this memorandum opinion.
See Rule 12-405(B) NMRA (providing that appellate courts may dispose of a case
by non-precedential order, decision, or memorandum opinion under certain
circumstances); see also State v. Gonzales, 1990-NMCA-040, § 48, 110 N.M. 218,
794 P.2d 361 (“[M]emorandum opinions are not meant to be cited as controlling
authority because such opinions are written solely for the benefit of the parties.
Since the parties know the detail of the case, such an opinion does not describe at

length the context of the issue decided[.]’’).

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3) Wenote the following pertinent to our determination that Taxpayer’s appeal
must be dismissed. First, Taxpayer submitted to this Court a brief in chief which
contained an argument section comprised of less than two pages of discussion.
Second, without adequate analysis, citation to authority or to the record, Taxpayer
appears to argue on appeal that the AHO erred in concluding that Taxpayer was
liable for the gross receipts tax assessed by the Department. As best we can tell,
Taxpayer argues that the AHO’s conclusion was wrong because a statutory
deduction from gross receipts applies to the receipts at issue. Taxpayer also suggests
in its brief’s conclusion that it is owed some relief for having reasonably relied on
its accountants in reporting its gross receipts. None of these arguments aré properly
developed under our jurisprudence or presented in compliance with our Rules of
Appellate Procedure.

DISCUSSION

4} We first note that our review of an appeal from a hearing officer’s decision
and order is not de novo. See NMSA 1978, § 7-1-25(A) (2015). We may only set
aside a hearing officer’s decision and order on appeal if we conclude that it is “(1)
arbitrary, capricious or an abuse of discretion; (2) not supported by substantial
evidence in the record; or (3) otherwise not in accordance with the law.” Section 7-
1-25(C); see also Wing Pawn Shop v. Taxation & Revenue Dep't, 1991-NMCA-024,

48, 111 N.M. 735, 809 P.2d 649 (“On appeal from an agency determination, we

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determine whether, viewing the evidence in a light most favorable to the agency’s
decision, the findings have substantial support in the record as a whole.”). Taxpayer
bears the burden of demonstrating that the necessary standard of review has been
met. Cf Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC- 100, 4 8, 111
N.M. 6, 800 P.2d 1063 (“The presumption upon review favors the correctness of the
trial court’s actions. Appellant must affirmatively demonstrate its assertion of
error.”). As we explain, Taxpayer fails to provide us with the assistance necessary
to properly consider its appeal or to facilitate meaningful review of the AHO
decision and order.

453} ‘In this regard, Taxpayer’s brief suffers from a multitude of technical and
substantive deficiencies, some of which we highlight. These deficiencies constitute
both violations of our Rules of Appellate Procedure and waivers of challenges to the
findings and conclusions arrived at 1n the proceedings below.

6} First, Taxpayer’s brief contains no summary of proceedings “briefly
describing the nature of the case, the course of proceedings, and the disposition in
the court below,” as Rule 12-318(A)(3) NMRA requires. An even more glaring
omission is that Taxpayer’s brief fails to mention the AHO decision and order that
is the subject of this appeal.

{7} Accompanying Taxpayer’s silence on the decision and order is Taxpayer’s

failure to identify the specific AHO findings and conclusions with which Taxpayer

ca

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takes issue. Taxpayer's failure to direct us to specific errors prevents us from
providing any sort of meaningful review and, just as importantly, prevents the
Department from responding to and perhaps refuting Taxpayer’s arguments.
Furthermore, Taxpayer’s failure to identify any error allegedly made by the hearing
officer renders the hearing officer’s findings of fact and conclusions of law
conclusive. See Rule 12-318(A)(4) (providing that a finding is deemed conclusive if
an argument does not specifically attack the finding); Zn re Estate of Gardner, 1992-
NMCA-122, 4 26, 114 N.M. 793, 845 P.2d 1247 (deeming objections to a lower
court’s conclusions of law waived when the appellant failed to specifically point to
errors in those conclusions). Because Taxpayer also fails to cite to any authority
undermining the hearing officer’s conclusions, we will not review Taxpayer’s
arguments challenging those conclusions. See in re Estate of Gardner, 1992-
NMCA-122, 4 28 (“Arguments not supported by cited authority will not be reviewed
on appeal.”). Lastly on this point, we note that this Court’s notice of proposed
summary disposition called attention to similar faults in Taxpayer’s docketing
statement. Given that, Taxpayer should have been aware of the need in briefing to
more specifically inform this Court of the error or errors it alleges, and we are all the
more unwilling to now overlook this. shortcoming.

{833 Taxpayer also violates Rule 12-318(A)(4), which pertains to a brief in chiefs

argument section. Specifically, Taxpayer omits (1) a statement of the standard of

met,

review applicable to the issue it raises; (2) a statement identifying how the issue was

2|| preserved below; and (3) citations to the record referencing issue preservation—all

3] of which the rule requires.

5] particularly problematic given that we may review an AHO decision and order “only

6i\ to the same extent and upon the same theory as was asserted in the hearing before

7| the hearing officer.” Section 7-1-25(A). Taxpayer does not bring to our attention the

9] not take it upon ourselves to search the record for that information. See Crutchfield |

10 v. NM. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¥ 14, 137 N.M. 26, 106

11) P.3d 1273 (stating that this Court will not consider an issue absent a party’s citation

to

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U

ian)

13} this Court will not search the record when a party fails to provide citations).

14] ¢10) | Even if we searched the record for and found evidence that Taxpayer properly

15] preserved the gross-receipts-deduction issue or the reasonable-reliance issue, we

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17| development and lack of clarity. Such an undertaking would entail developing

18] Taxpayer’s arguments for it, “effectively performing” Taxpayer’s work, which, in

19} turn, would “create[] a strain on judicial resources and a substantial risk of error.”

20) See Elane Photography, LLC v. Willock, 2013-NMSC-040, 470, 309 P.3d 53; cf

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N.M. Dep’t of Human Servs. v. Tapia, 1982-NMSC-033, 411, 97 N.M. 632, 642
P.2d 1091 (stating that “(cJourts risk overlooking important facts or legal
considerations when they take it upon themselves to raise, argue, and decide legal
questions overlooked by the lawyers who tailored the case to fit within their legal
theories”). Our courts routinely decline to review inadequately briefed, unclear
arguments, as “[i]t is of no benefit either to the parties or to future litigants for {the
appellate courts] to promulgate case law based on our own speculation rather than
the parties’ carefully considered arguments.” E/ane Photography, 2013-NMSC-040,
{| 70. Furthermore, were we to attempt a review of the merits of Taxpayer’s
arguments, we would be at a loss to determine the factual basis for Taxpayer’s
appeal, because Taxpayer’s argument section contains no citation to the record, and
because “[w]e will not search the record for facts, arguments, and rulings in order to
support generalized arguments.” Muse v. Muse, 2009-NMCA-003, §[ 72, 145 N.M.
451, 200 P.3d 104.

(143 Lastly, Taxpayer violates Rule 12-318(A)(5) by not including in its brief’s
conclusion a precise statement of the relief Taxpayer seeks, Without such a
statement, we are left to speculate on exactly what remedy Taxpayer seeks via his
appeal.

{123 Considering the extent of Taxpayer's violations of our Rules of Appellate

Procedure, the consequences of those violations, and the difficulty we would face if

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we attempted a review of the AHO decision and order, we conclude that we must
2\| dismiss this appeal. See Rule 12-312(D) NMRA (allowing this Court to dismiss an
3] appeal for a party’s failure to comply with the Rules of Appellate Procedure). The
4| AHO decision and order is therefore conclusive. |

5] CONCLUSION

6] 4133 Taxpayer’s appeal is dismissed, and the AHO decision and order is left
7] undisturbed.

8) 4) ITIS SO ORDERED.

9 his trro- Goyes tn

10 KRISTINA BOGARDUS, Judge

]

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WE CONCUR:

12 9. My, Mr .
13] J. MILES HANISEE, Judge

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15| ZACHARY ’A. IMES, Judge