State ex rel. McCulloch v. Ashby
| Decision Date | 16 December 1963 |
| Docket Number | No. 7088,7088 |
| Citation | 73 N.M. 267,387 P.2d 588,1963 NMSC 217 |
| Parties | STATE of New Mexico ex rel. Frank E. McCULLOCH, Director Income Tax Division, Bureau of Revenue, Petitioner-Appellee, v. Willie R. ASHBY, Respondent-Appellant. |
| Court | New Mexico Supreme Court |
Hubert T. Faulk, El Paso, Tex., Thos. B. Rapkoch, Las Cruces, for appellant.
John W. Chapman, Albert I. Cornell, Sp. Asst. Attys. Gen., Santa Fe, for appellee.
The question presented in this case is whether the State of New Mexico had jurisdiction in 1958 and 1959 over the White Sands Missile Range, a military installation located in New Mexico, to levy, assess and collect an income tax on non-residents employed within this military installation.
The cause was tried on stipulation of facts submitted to the district court of Santa Fe County. The appellant, Willie R. Ashby, during calendar years 1958 and 1959, was married and living with his wife in El Paso, Texas, and not a resident of nor domiciled in New Mexico.
The appellant did not own any revenue producing property in New Mexico but was employed on the military reservation known as White Sands Missile Range situate within the external boundaries of New Mexico, The appellant had income for each of these years in excess of five thousand dollars from his salary as an employee of the United States government at the military installation.
The allellant did not file income tax returns with the Bureau of Revenue of New Mexico for calendar years 1958 and 1959 and refrained from filing the non-resident income tax returns after notice from the Income Tax Division to file the returns and pay the income tax due thereon.
On April 7, 1961, the State of New Mexico filed suit in the district court of Santa Fe County petitioning the district court to enter its order requiring the appellant to make such returns pursuant to the Income Tax Act of the State of New Mexico and regulations promulgated thereto. Section 72-15-27, N.M.S.A.1953.
The appellant answered denying the tax liability and setting up numerous defenses, which are stated as points relied on for reversal, and only one of which do we consider necessary to discuss, it being determinative of the appeal.
Motion to dismiss based on the fact that Sec. 72-15-27, N.M.S.A.1953, was repealed on June 29, 1961, by the New Mexico Legislature was denied. The relief requested by the State of New Mexico against the appellant was ordered on Odctober 9, 1961, by the district court and this appeal followed as of December 14, 1961.
Appellant's primary and convincing argument is that the applicable statutory law violates Sec. 2 of art. IV of the Constitution of the United States and Sec. 1 of the Fourteenth Amendment to the Constitution of the United States in that the law provides in Sec. 72-15-23, N.M.S.A.1953, as amended, that residents of New Mexico required to file income tax returns shall have personal exemptions ranging from $1,500.00 to $2,500.00, depending upon their marital status, and does not provide the same exemptions in the statutory law for non-residents. Appellant claims that this difference thereby would deprive the non-residents of the equal protection of the law.
Section 2 of art. IV of the Constitution of the United States declares:
'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.'
The pertinent provisions of Sec. 1 of the Fourteenth Amendment to the Constitution of the United States provides:
Section 72-15-23, N.M.S.A.1953, as amended, provides:
'The following personal exemptions and credits shall be allowed to residents of the state of New Mexico: In case of an unmarried person, the personal exemption shall be fifteen hundred dollars [$1,500]; In the case of a husband and wife, living together, the personal exemption shall be twenty-five hundred dollars [$2,500], plus two hundred dollars [$200] for each dependent minor child.'
Regulation 22(a) promulgated by the New Mexico Bureau of Revenue on January 1, 1948, providing for personal exemptions of non-residents states:
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Local 2238 of the American Federation of State, County and Municipal Employees, AFL-CIO v. Stratton
...Sec. 10-9-10(A). The rules adopted, however, may not abridge any right or duty imposed by the Act. State ex rel. McCulloch v. Ashby, 73 N.M. 267, 271, 387 P.2d 588, 590 (1963). Ultimate decision-making authority regarding employment terms remains exclusively within the Board. See Sec. 10-9-......
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1997 -NMCA- 4, Conoco, Inc. v. State Taxation and Revenue Dept.
...method. This allowance was promulgated by the Department under Section 7-4-19. The taxpayer, citing State ex rel. McCulloch v. Ashby, 73 N.M. 267, 387 P.2d 588 (1963), contends that a facially discriminatory statute cannot be remedied by an administrative regulation. In Ashby, however, the ......
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