New Mexico Bureau of Revenue v. Western Elec. Co.

• Decision Date: 07 September 1976
• Docket Number: No. 10978,10978
• Citation: 89 N.M. 468,1976 NMSC 49,553 P.2d 1275
• Parties: NEW MEXICO BUREAU OF REVENUE, Petitioner, v. WESTERN ELECTRIC COMPANY, Respondent.
• Court: New Mexico Supreme Court

Page 1275

553 P.2d 1275

89 N.M. 468

NEW MEXICO BUREAU OF REVENUE, Petitioner, v. WESTERN ELECTRIC COMPANY, Respondent.

No. 10978.

Supreme Court of New Mexico.

Sept. 7, 1976.

[89 NM 468] Toney Anaya, Atty. Gen., Jan Unna, Asst. Atty. Gen., Bureau of Revenue, Santa Fe, for petitioner.

Campbell & Bingaman, Jeff Bingaman, Santa Fe, for respondent.

OPINION

MONTOYA, Justice.

The instant case is before us on a writ of certiorari granted by this Court on June 16, 1976, upon application made by the petitioner (Bureau) herein.

The pertinent facts involved are as follows: On May 4, 1976, the Court of Appeals entered its decision in favor of respondent (Western Electric) in the above entitled cause. The case involved an appeal from a decision of the Commissioner relative to the assessment of compensating taxes against Western Electric. The Court of Appeals, by its decision, annulled the order entered by the Commissioner. Western Electric moved to recover its costs, including the cost of the preparation of the transcript, which motion was granted by the Court of Appeals under Rule 27 (§ 21--12--27, N.M.S.A.1953 (Supp.1975)). (Hereinafter, when a 'Rule' is referred to in this opinion, it indicates a particular Rule of the Rules of Appellate Procedure for Civil Cases and Rules Governing Original Proceedings in the Supreme Court, §§ 21--12--1 to 21--12--32, N.M.S.A.1953 (Supp.1975).)

The question thus presented is whether the cost of preparation of the transcript of a taxpayer's hearing before the Commissioner may properly be taxed to the Bureau where the taxpayer, Western Electric, successfully appealed the decision of the Commissioner.

The Bureau contends that in applying Rule 27, supra, allowing costs to Western Electric, which included the cost of preparation of the transcript, the Court of Appeals ignored the provisions of § 72--13--39(B), N.M.S.A.1953 (Supp.1975), which provides as follows:

'B. The procedure for perfecting an appeal under this section to the court of appeals consists of the timely filing of a complaint on appeal, naming only the bureau of revenue as appellee, with a copy attached of the decision and order from which appeal is taken. The appellant shall certify in his complaint on appeal that arrangements have been made with the commissioner or his delegate for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support his appeal to the courts, at the expense of appellant, including three (3) copies which he shall furnish to the commissioner or his delegate.'

The Bureau further contends that in applying the provisions of Rule 27, supra, the Court of Appeals ignored Rule 1(a) (§ 21--12--1(a) N.M.S.A.1953 (as adopted January 2, 1974, effective April 1, 1974)), which read as follows:

'(a) Except as may be otherwise provided by law these rules govern procedure in appeals from district courts to the Supreme Court and the Court of Appeals of New Mexico, in special statutory proceedings in the appellate courts for review or enforcement of orders of administrative agencies, boards and commissions and in applications for extraordinary writs and in removal proceedings.'

The argument is made that the phrase 'as may be otherwise provided by law' controls and dictates that the statutory allocation of costs, as set forth in § 72--13--39(B), supra, should prevail.

We start with the proposition that it is well established that the right to recover...