This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 AUTOMATED FINANCIAL 3 TECHNOLOGIES, LLC,
4 Protestant-Appellant,
5 v. NO. 30,828
6 TAXATION AND REVENUE DEPARTMENT 7 OF THE STATE OF NEW MEXICO,
8 Respondent-Appellee.
9 APPEAL FROM THE DECISION AND ORDER 10-16 10 Sally Galanter, Hearing Officer
11 The Loubet Law Firm, LLC 12 Jeffrey W. Loubet 13 Albuquerque, NM
14 for Appellant
15 Gary K. King, Attorney General 16 Patrick Edward Preston, Special Assistant Attorney General 17 Taxation & Revenue Department 18 Santa Fe, NM
19 for Appellee 1 MEMORANDUM OPINION
2 KENNEDY, Judge.
3 This case presents the issue whether a company that operates automatic teller
4 machines (ATM) is entitled under NMSA 1978, Section 7-9-61.1 (1981) to deduct
5 from its gross receipts tax, the surcharge fees collected from ATM customers. The
6 proposed deductions encompass all of Automated Financial Technologies’s (AFT)
7 gross receipts income and, thus, would entirely eliminate AFT’s gross receipts tax
8 altogether. Because the surcharge fees are not payments received from charges made
9 in connection with the origination, making, or assumption of a loan, the deduction for
10 such payments under Section 7-9-61.1 is improper. We therefore affirm the Taxation
11 and Revenue Department (Department) hearing officer’s decision that AFT is not
12 entitled to claim such deductions.
13 I. BACKGROUND
14 AFT is an independent sales organization owning and operating ATMs inside
15 “casinos, restaurants, ice cream stores, hotels, and hospitals” within New Mexico.
16 “AFT places its funds in [its] ATMs for withdrawal by customers of banks or financial
17 institutions.” “To withdraw cash, the customer inserts his/her credit or bank . . . card”
18 and, through AFT’s use of a software program, directly accesses his/her bank account
19 using a personal identification number. “The customer is [then] led through a series
2 1 of prompts by the ATM” to access funds from his/her bank account. One of the
2 prompts “notifies the customer that there will be a flat fee of $2 or $3 associated with
3 obtaining the cash” and gives the customer the option of discontinuing the transaction
4 if he/she does not want to incur the fee. Upon receiving an affirmative response to
5 continue, the ATM accesses the customer’s bank account, determining whether the
6 customer has sufficient funds in his/her account to obtain the cash. If the bank
7 account shows that it has insufficient funds to pay for the transaction, “the ATM will
8 deny the customer the cash.” If the customer’s account has sufficient funds, “the
9 ATM will provide the customer the cash[,]” instantly committing the customer’s bank
10 account. The amount received in cash plus AFT’s surcharge fee are immediately
11 “deducted from the customer’s [bank] account.” The bank, “having deducted the
12 amount of cash its customer received and the surcharge fee from its customer’s
13 account, . . . then reimburse[s] AFT for the cash disbursed and for the surcharge fee
14 charged by AFT within three or four days of the disbursement.” All of AFT’s
15 income comes from surcharge fees paid by customers obtaining cash through the
16 ATMs. The Department audited AFT in 2006 for gross receipts taxes filed from April
17 2000 through December 2005. Based on the audit, “[t]he Department determined that
18 AFT failed to report and pay [g]ross [r]eceipts [t]ax on the surcharge fees it . . .
19 receiv[ed] from customers utilizing its ATMs for cash withdrawals.” The Department
3 1 assessed AFT for back taxes, compensating taxes, and interest. AFT protested the
2 assessment of gross receipts and interest, arguing that the assessment was improper
3 because fees derived on funds loaned to finance withdrawals by ATM users were
4 deductible under Section 7-9-61.1. The Department’s hearing officer concluded that
5 “[t]he fees collected by AFT from ATM users to receive cash based on funds in their
6 bank accounts are not receipts from charges made in connection with the origination,
7 making or assumption of a loan or from charges made for handling loan payments.”
8 AFT now appeals.
9 II. DISCUSSION
10 The sole question before us is whether surcharge fees collected by ATMs
11 qualify as a deduction under Section 7-9-61.1. We will only set aside the hearing
12 officer’s decision and order if it is “(1) arbitrary, capricious[,] or an abuse of
13 discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not
14 in accordance with the law.” NMSA 1978, § 7-1-25 (1989). Interpretation of a statute
15 is a question of law, which this Court reviews de novo. See Morgan Keegan Mortg.
16 Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066.
17 In engaging in statutory construction, “[w]e begin with the plain meaning of the
18 statute’s words and construe its provisions together to produce a harmonious whole.”
19 Rivera v. Flint Energy, 2011-NMCA-119, ¶ 4, 268 P.3d 525. “But [we do not engage
4 1 in] an overly simplistic application of the plain-meaning rule, [as] it is part of the
2 essence of judicial responsibility to search for and effectuate the legislative
3 intent—the purpose or object—underlying the statute.” Bishop v. Evangelical Good
4 Samaritan Soc’y, 2009-NMSC-036, ¶ 10, 146 N.M. 473, 212 P.3d 361 (internal
5 quotation marks and citation omitted). “Where an exemption or deduction from tax
6 is claimed, the statute must be construed strictly in favor of the taxing authority, the
7 right to the exemption or deduction must be clearly and unambiguously expressed in
8 the statute, and the right must be clearly established by the taxpayer.” Sec. Escrow
9 Corp. v. State Taxation & Revenue Dep’t, 107 N.M. 540, 543, 760 P.2d 1306, 1309
10 (Ct. App. 1988). “[T]axation is the rule and the claimant for an exemption must show
11 that his demand is within the letter as well as the spirit of the law.” Id. “[W]e must
12 remain mindful that in resolving ambiguities in the statute or regulations which an
13 agency is charged with administering, the [c]ourt generally will defer to the agency’s
14 interpretation if it implicates agency expertise.” Rio Grande Chapter of Sierra Club
15 v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 (internal
16 quotation marks and citation omitted).
17 The statute at issue in this case states that “[r]eceipts from charges made in
18 connection with the origination, making or assumption of a loan or from charges made
19 for handling loan payments may be deducted from gross receipts.” § 7-9-61.1. AFT
5 1 argues that “[c]ash advanced to bank customers from AFT’s ATMs constitute loans
2 to the banks.” AFT states that “[t]he banks then repay these loans by removing from
3 the bank customer’s account the amount received from the ATM, and repaying it to
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 AUTOMATED FINANCIAL 3 TECHNOLOGIES, LLC,
4 Protestant-Appellant,
5 v. NO. 30,828
6 TAXATION AND REVENUE DEPARTMENT 7 OF THE STATE OF NEW MEXICO,
8 Respondent-Appellee.
9 APPEAL FROM THE DECISION AND ORDER 10-16 10 Sally Galanter, Hearing Officer
11 The Loubet Law Firm, LLC 12 Jeffrey W. Loubet 13 Albuquerque, NM
14 for Appellant
15 Gary K. King, Attorney General 16 Patrick Edward Preston, Special Assistant Attorney General 17 Taxation & Revenue Department 18 Santa Fe, NM
19 for Appellee 1 MEMORANDUM OPINION
2 KENNEDY, Judge.
3 This case presents the issue whether a company that operates automatic teller
4 machines (ATM) is entitled under NMSA 1978, Section 7-9-61.1 (1981) to deduct
5 from its gross receipts tax, the surcharge fees collected from ATM customers. The
6 proposed deductions encompass all of Automated Financial Technologies’s (AFT)
7 gross receipts income and, thus, would entirely eliminate AFT’s gross receipts tax
8 altogether. Because the surcharge fees are not payments received from charges made
9 in connection with the origination, making, or assumption of a loan, the deduction for
10 such payments under Section 7-9-61.1 is improper. We therefore affirm the Taxation
11 and Revenue Department (Department) hearing officer’s decision that AFT is not
12 entitled to claim such deductions.
13 I. BACKGROUND
14 AFT is an independent sales organization owning and operating ATMs inside
15 “casinos, restaurants, ice cream stores, hotels, and hospitals” within New Mexico.
16 “AFT places its funds in [its] ATMs for withdrawal by customers of banks or financial
17 institutions.” “To withdraw cash, the customer inserts his/her credit or bank . . . card”
18 and, through AFT’s use of a software program, directly accesses his/her bank account
19 using a personal identification number. “The customer is [then] led through a series
2 1 of prompts by the ATM” to access funds from his/her bank account. One of the
2 prompts “notifies the customer that there will be a flat fee of $2 or $3 associated with
3 obtaining the cash” and gives the customer the option of discontinuing the transaction
4 if he/she does not want to incur the fee. Upon receiving an affirmative response to
5 continue, the ATM accesses the customer’s bank account, determining whether the
6 customer has sufficient funds in his/her account to obtain the cash. If the bank
7 account shows that it has insufficient funds to pay for the transaction, “the ATM will
8 deny the customer the cash.” If the customer’s account has sufficient funds, “the
9 ATM will provide the customer the cash[,]” instantly committing the customer’s bank
10 account. The amount received in cash plus AFT’s surcharge fee are immediately
11 “deducted from the customer’s [bank] account.” The bank, “having deducted the
12 amount of cash its customer received and the surcharge fee from its customer’s
13 account, . . . then reimburse[s] AFT for the cash disbursed and for the surcharge fee
14 charged by AFT within three or four days of the disbursement.” All of AFT’s
15 income comes from surcharge fees paid by customers obtaining cash through the
16 ATMs. The Department audited AFT in 2006 for gross receipts taxes filed from April
17 2000 through December 2005. Based on the audit, “[t]he Department determined that
18 AFT failed to report and pay [g]ross [r]eceipts [t]ax on the surcharge fees it . . .
19 receiv[ed] from customers utilizing its ATMs for cash withdrawals.” The Department
3 1 assessed AFT for back taxes, compensating taxes, and interest. AFT protested the
2 assessment of gross receipts and interest, arguing that the assessment was improper
3 because fees derived on funds loaned to finance withdrawals by ATM users were
4 deductible under Section 7-9-61.1. The Department’s hearing officer concluded that
5 “[t]he fees collected by AFT from ATM users to receive cash based on funds in their
6 bank accounts are not receipts from charges made in connection with the origination,
7 making or assumption of a loan or from charges made for handling loan payments.”
8 AFT now appeals.
9 II. DISCUSSION
10 The sole question before us is whether surcharge fees collected by ATMs
11 qualify as a deduction under Section 7-9-61.1. We will only set aside the hearing
12 officer’s decision and order if it is “(1) arbitrary, capricious[,] or an abuse of
13 discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not
14 in accordance with the law.” NMSA 1978, § 7-1-25 (1989). Interpretation of a statute
15 is a question of law, which this Court reviews de novo. See Morgan Keegan Mortg.
16 Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066.
17 In engaging in statutory construction, “[w]e begin with the plain meaning of the
18 statute’s words and construe its provisions together to produce a harmonious whole.”
19 Rivera v. Flint Energy, 2011-NMCA-119, ¶ 4, 268 P.3d 525. “But [we do not engage
4 1 in] an overly simplistic application of the plain-meaning rule, [as] it is part of the
2 essence of judicial responsibility to search for and effectuate the legislative
3 intent—the purpose or object—underlying the statute.” Bishop v. Evangelical Good
4 Samaritan Soc’y, 2009-NMSC-036, ¶ 10, 146 N.M. 473, 212 P.3d 361 (internal
5 quotation marks and citation omitted). “Where an exemption or deduction from tax
6 is claimed, the statute must be construed strictly in favor of the taxing authority, the
7 right to the exemption or deduction must be clearly and unambiguously expressed in
8 the statute, and the right must be clearly established by the taxpayer.” Sec. Escrow
9 Corp. v. State Taxation & Revenue Dep’t, 107 N.M. 540, 543, 760 P.2d 1306, 1309
10 (Ct. App. 1988). “[T]axation is the rule and the claimant for an exemption must show
11 that his demand is within the letter as well as the spirit of the law.” Id. “[W]e must
12 remain mindful that in resolving ambiguities in the statute or regulations which an
13 agency is charged with administering, the [c]ourt generally will defer to the agency’s
14 interpretation if it implicates agency expertise.” Rio Grande Chapter of Sierra Club
15 v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 (internal
16 quotation marks and citation omitted).
17 The statute at issue in this case states that “[r]eceipts from charges made in
18 connection with the origination, making or assumption of a loan or from charges made
19 for handling loan payments may be deducted from gross receipts.” § 7-9-61.1. AFT
5 1 argues that “[c]ash advanced to bank customers from AFT’s ATMs constitute loans
2 to the banks.” AFT states that “[t]he banks then repay these loans by removing from
3 the bank customer’s account the amount received from the ATM, and repaying it to
4 AFT.” In contrast, the Department argues, and the hearing officer agreed, that the fees
5 are the result of a service provided to the customer to allow the customer to obtain
6 immediate cash from his bank account and not a loan to the bank and, thus, is subject
7 to gross receipts tax and not deductible. The central issue here is whether the ATM
8 transaction constitutes a loan.
9 We analyzed a similar issue regarding whether real estate contracts with
10 installment payments were loans under this same statute in Security Escrow. In
11 Security Escrow, escrow agents attempted to deduct, under Section 7-9-61.1, the
12 charges they collected for processing installment payments on real estate contracts
13 held in escrow. Sec. Escrow, 107 N.M. at 542, 545, 760 P.2d at 1308, 1311. There,
14 we stated that a loan is the “delivery of a sum of money to another under a contract
15 to return at some future time an equivalent amount with or without an additional
16 amount agreed upon for its use.” Id. at 544, 760 P.2d at 1310.
17 The four elements of a loan are: (1) a principal sum; (2) a placing 18 of the sum with a borrower; (3) an agreement that interest is to be paid; 19 and (4) a recognition by the receiver of money of his liability for return 20 of the principal amount with accrued interest.
6 1 Id. Yet, we stated that the transaction at issue in the statute could not just meet the
2 bare requirements of a loan under those above factors. Rather, “[w]e conclude[d] that
3 the [L]egislature intended to allow the deduction from gross receipts under [Section
4 7-9-61.1] only for typical loan transactions involving both a traditional lender and
5 borrower.” Sec. Escrow, 107 N.M. at 545, 760 P.2d at 1311 (emphasis added).
6 In Security Escrow, we concluded that based upon this reading of the statute,
7 any processing or collection charges typically made by escrow agents were not typical
8 loan transactions between both a traditional lender and borrower and, thus, were not
9 properly deductible under the statute. Id. at 544, 760 P.2d at 1310. We characterized
10 the fees received by the escrow agents as “charges collected . . . for handling
11 [installment] payments.” Id. at 542, 760 P.2d at 1308. We also explained that “[t]o
12 hold otherwise would in effect unfairly eliminate payment of gross receipts tax by
13 escrow businesses throughout New Mexico for gross receipts derived from charges
14 similar to those at issue in this case.” Id. at 545, 760 P.2d at 1311. This Court
15 reasoned that
16 if we were to construe the statute as urged by [the escrow agents], we 17 would in essence be deferring substance to form, thus encouraging 18 escrow agents or the parties under any real estate contract to adopt 19 certain contractual language making the transaction appear as a loan 20 when in substance it is not. The sole purpose of such manipulative 21 wording would be to improperly permit a deduction from gross receipts 22 under the statute.
7 1 Id.
2 Likewise, in the present case, we conclude that AFT’s ATM transactions are not
3 traditional loans between AFT and the customer’s bank under Section 7-9-61.1. Here,
4 the customer, not the bank, is seeking to withdraw the funds from the ATM. The
5 ATM transaction requires the customer to directly access his account and verify
6 adequate funds before the ATM will provide cash disbursement. In return for the cash
7 withdrawal, the customer authorizes the bank to give the loaned amount and surcharge
8 fee to AFT. Therefore, as the hearing officer found, the bank cannot, as AFT
9 contends, be called a traditional borrower in this context because its funds are never
10 at risk. The hearing officer reasoned, and we agree, that had AFT truly made a loan
11 to the bank, “there would be no need to verify money in a customer’s account nor
12 would the withdrawal or denial be based on whether the customer had sufficient funds
13 in his/her account but rather the bank would borrow the money based on its own
14 financial stature and be solely responsible for payment.” It is the customer’s funds,
15 not the bank’s, that reimburses AFT. The ATM transaction lacks both a traditional
16 lender and borrower. AFT is a company that operates ATMs, not lending institutions
17 like banks or credit unions. Banks are not traditional borrowers. There is no evidence
18 that banks are performing more than a banking function by transferring funds owed
19 by their customers to AFT. AFT appears merely to be providing a service through its
8 1 ATM consisting of convenient access to cash that is theirs for which customers
2 compensate AFT with the surcharge fee. Thus, the surcharge constitutes a service fee
3 and nothing more.
4 For this Court to conclude otherwise would effectively eliminate AFT’s gross
5 receipts tax on service fees for an activity that is not a borrowing transaction, but
6 merely dispensing cash to customers that is their own and for which they bear no
7 obligation of repayment. The cash-dispensing and delay in reimbursement are
8 compensated by ATF’s taxable service fee. Because of AFT’s contract with the bank
9 and the customer’s agreement to the withdrawal of their own cash plus the fee, no loan
10 is made. Allowing a deduction in this case is clearly contrary to the legislative intent
11 in creating the tax deduction for fees in association with a typical loan.
12 Therefore, we conclude that AFT’s ATM transactions are not typical loan
13 transactions with a traditional lender and borrower in accordance with Section 7-9-
14 61.1 and that the $2 or $3 surcharges are paid in exchange for the service AFT
15 provides in dispensing cash to customers. We hold that Section 7-9-61.1 does not
16 give AFT a deduction for the surcharges, and AFT is liable to pay gross receipts tax
17 on the surcharges.
9 1 III. CONCLUSION
2 For the reasons stated above, we affirm the decision of the Department’s
3 hearing officer.
4 IT IS SO ORDERED.
5 _______________________________ 6 RODERICK T. KENNEDY, Judge
7 WE CONCUR:
8 ___________________________ 9 JAMES J. WECHSLER, Judge
10 ___________________________ 11 J. MILES HANISEE, Judge