New Mexico Taxation & Revenue Department v. Whitener

869 P.2d 829, 117 N.M. 130

• Court: New Mexico Court of Appeals
• Decided: February 9, 1994
• Docket: 13092
• Status: Published

Opinions

OPINION

CHAVEZ, Judge.

The New Mexico Taxation and Revenue Department (the Department) appeals the decision and order of its hearing officer which granted Ray Charles Whitener’s (Defendant’s) protest to taxes imposed upon him under the Controlled Substance Tax Act (the Act), NMSA 1978, Sections 7-18A-1 to -18A-7 (Repl.Pamp.1993). The hearing officer found and concluded that the tax violated Defendant’s right against double jeopardy. This case-presents the Court with the issue of the constitutionality of the Act as applied to Defendant. We affirm.

FACTS

In January 1990, Defendant was stopped by the New Mexico state police in Bernalillo County. Twenty-five pounds of marijuana were discovered in the trunk of Defendant’s automobile. In addition to the drugs, police uncovered two firearms and $37,265 in cash.

Defendant was arrested and charged with possession of a controlled substance with intent to distribute, a fourth degree felony. In June 1990, pursuant to a plea agreement, Defendant was convicted of that offense. His sentence was deferred for eighteen months and he was placed on supervised probation. In addition to the standard conditions of probation, Defendant was required to pay a $75 laboratory fee, perform 100 hours of community service, and pay $15 per month in probation costs.

In February 1990, the State, through the Department of Public Safety, filed an amended complaint seeking the forfeiture of the firearms and cash seized from Defendant. In August 1990, the State and Defendant entered into a stipulated judgment in which Defendant forfeited the firearms and $33,365 in cash.

Prior to that, in March 1990, the Department levied an assessment against Defendant totalling $80,070.38, which represented the tax, penalty, and interest under the Act. In April 1990, Defendant timely filed a protest to the assessment. See NMSA 1978, § 7-1-24 (Repl.Pamp.1990).

In December 1990, a hearing was held on Defendant’s protest before Gerald Richardson, Hearing Officer for the Department. At the hearing, the parties stipulated that the tax assessment arose from the same set of facts and circumstances that triggered Defendant’s conviction of possession of marijuana and the forfeiture of his property. Defendant argued at the hearing that the controlled substance tax was in fact a second punishment against him and, therefore, violated his right against double jeopardy. He further argued at the hearing that the tax bore no reasonable relationship to any State interest, and that the State had an obligation to prove that such a relationship existed. In response, the Department argued that the burden was on Defendant, not the State, to come forward and prove the invalidity of the tax. The Department argued that there was no double jeopardy violation, and it was acting within its authority to assess such a tax. No evidence was presented at the hearing regarding the value of the marijuana on which the tax was based or the State’s costs in apprehending and prosecuting Defendant. The hearing officer had the parties submit briefs on the issue.

Thereafter, the hearing officer entered its decision and order. The decision noted that tax assessments are presumed to be correct, and, therefore, Defendant bore the burden of proof with respect to the amount of marijuana seized and the proper amount of tax liability. It was determined that Defendant failed to meet this burden. However, the decision stated that the remaining issue to be determined was whether, under the particular circumstances, the tax imposed constituted a second punishment in violation of the double jeopardy clause. It further noted that a review of the Act failed to reveal that the taxes were used to offset any particularized costs incurred with respect to drug enforcement or the societal costs of drug abuse, and instead the monies went to the State’s general fund. The decision provided that, despite Defendant’s failure to present evidence on the street value of marijuana, the $200 per ounce tax appeared “to at least equal, if not far exceed this decision maker’s impression of the street value of marijuana.” The hearing officer determined that, under the facts of this case, the drug tax constituted an additional punishment which bore no rational relationship to the goal of compensating the State for its costs. Having found a violation of double jeopardy, the hearing officer granted Defendant’s protest. The Department appealed from that decision and order.

DISCUSSION AND ANALYSIS

The Double Jeopardy Clause, see U.S. Const, amend. V; N.M. Const, art. II, § 15, embodies three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See State v. Trevino, 113 N.M. 804, 808, 833 P.2d 1170, 1174 (Ct.App.1991), aff'd, 113 N.M. 780, 833 P.2d 1146 (1992). It is the third of these protections which is at issue in this appeal.

The Act provides authority for the Department to levy a tax on the unlawful possession of controlled substances at certain rates depending on the amount of drugs involved. See § 7-18A-3(A). The Department is also charged with interpreting the Act and administering and enforcing the collection of taxes levied on controlled substances. See § 7-18A-5(A) & (B).

Tax assessments or demands for payment are presumed to be correct. NMSA 1978, § 7-l-17(C) (Repl.Pamp.1993). Therefore, Defendant bore the burden of overcoming this presumption of correctness. See Archuleta v. O’Cheskey, 84 N.M. 428, 431, 504 P.2d 638, 641 (Ct.App.1972). Once the presumption is rebutted, the burden shifts to the State to show the correctness of the assessed tax. See Cibola Energy Corp. v. Roselli, 105 N.M. 774, 777, 737 P.2d 555, 558 (Ct.App.1987).

The United States Supreme Court has dealt with the issue of whether state action, which is civil in nature, can nonetheless be violative of double jeopardy. In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the Court held that a defendant who had already been punished criminally may not be subjected to an additional civil sanction to the extent that the second sanction may not be fairly characterized as remedial but only as a deterrent or retribution. Halper had been criminally convicted of submitting $585 in false Medicare claims for reimbursement, was sentenced to two years in prison, and was fined $5,000. Id. at 437, 109 S.Ct. at 1896. Thereafter, the federal government instituted a civil action against him for submitting false claims and assessed a fine against him totalling $130,000. Id. at 438, 109 S.Ct. at 1896.

In reaching its decision, the Supreme Court noted that with respect to assessments, the labels “criminal” and “civil” were not of paramount importance and could not be utilized to defeat the applicable protections of constitutional law. Id. at 447-48, 109 S.Ct. at 1901-02. It further noted that the determination of whether a given civil sanction constituted punishment required a particularized assessment of the penalty imposed and the purposes that the penalty may be fairly said to serve. Id. at 448, 109 S.Ct. at 1902. With that in mind, the Court stated that for situations in which a fixed penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages the offender has caused, the offender is entitled to an accounting of the state’s damages and costs to determine if the penalty sought in fact constitutes a second punishment. Id. at 449-50, 109 S.Ct. at 1902-03. Furthermore, the Court noted that the only proscription established by its ruling was that the state may not criminally prosecute a defendant, impose a criminal penalty upon the defendant, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to making the state whole. Id. at 451, 109 S.Ct. at 1903.

In Halper, the trial court found a tremendous disparity between the government’s actual damages and the civil penalty authorized by statute. Id. at 452, 109 S.Ct. at 1903. The government did not challenge the trial court’s approximation of its costs. Nonetheless, on appeal, the Court vacated the judgment below and remanded the case to allow the government to demonstrate that the trial court’s assessment of its injuries was erroneous. Id. Since the government chose below to litigate only the legal issue decided in Halper, the Court thought it unfair to deprive the government of an opportunity to present the trial court with an accounting of its actual costs arising from the Medicare fraud. Id.

The analysis in Halper has specifically been utilized to strike down a state-imposed controlled-substance tax on the grounds that it was unconstitutional as applied. In In re Kurth Ranch, 986 F.2d 1308 (9th Cir.), cert. granted, — U.S. -, 114 S.Ct. 38, 125 L.Ed.2d 788 (1993), defendants pled guilty to various drug-related offenses based on the cultivation of marijuana on their family farm. Thereafter, the state assessed a drug tax totalling close to $865,000. Id. at 1310. Defendants filed bankruptcy, and in those proceedings, the bankruptcy court denied the state’s claim for drug tax revenue. The district court affirmed that denial and the state appealed. Id.

In affirming the district court, and applying an analysis similar to that in Halper, the circuit court noted that the fact that the drug assessment was labeled a “tax” was not, in and of itself, dispositive of the issue of whether its imposition constituted an impermissible second punishment. Id. The court stated that since the case involved a previous criminal conviction, the most relevant consideration was the character of the sanction and whether it could fairly be called punitive in nature. It further stated that if the additional civil sanction appeared sufficiently disproportionate to the remedial goals claimed by the state, defendants were entitled to an accounting to determine whether the sanction constituted an impermissible additional punishment. Id. at 1311. The record in Kurth Ranch was devoid of the information necessary to perform such a proportionality analysis, and the state refused to make such a showing, despite being given opportunities to do so. In light of that refusal, the court stated that without any showing of some rough approximation of its actual damages and costs, allowing the state to impose the tax would be sanctioning a penalty which Halper prohibits. Id. at 1312. In reaching its conclusion that the Montana drug tax was unconstitutional as applied to the case, the appellate court concluded that by refusing to offer any evidence to justify the tax assessment, the state failed to meet the threshold requirements under Halper. Id.

Turning to the facts of this case, we find persuasive the analysis in Kurth Ranch which looks to the application of the assessment in the particular case in order to determine whether its effect can be called punitive in nature and, therefore, violative of the prohibition against double jeopardy as applied here. We do not find the fact that the assessment levied here was labeled a “tax” to be dispositive on the double jeopardy issue. See Halper, 490 U.S. at 447-48, 109 S.Ct. at 1901-02; Kurth Ranch, 986 F.2d at 1310-11 (labels not of paramount importance and cannot be utilized to defeat the applicable protections of constitutional law). The State cannot restrict an individual’s constitutional rights by statute. See State v. Barber, 108 N.M. 709, 710-11, 778 P.2d 456, 457-58 (Ct.App.) (legislature, by statute, may not diminish a right expressly provided by the constitution), cert. denied, 108 N.M. 713, 778 P.2d 911 (1989).

Our review of the record leads us to conclude that Defendant met his burden of proof, regarding the invalidity of the assessment, by making a prima facie showing that it violated his right against double jeopardy. See Archuleta, 84 N.M. at 431, 504 P.2d at 641. Specifically, Defendant showed how he had previously been convicted of a drug offense irtvolving the same controlled substances that formed the basis of the assessment. Defendant showed that notwithstanding the fact that he had already been criminally punished, the State also sought to impose a significant drug tax. Because Defendant entered into a plea agreement with the State, one may rest assured that the State did not incur the significant expense for criminal prosecutions which involve a trial and the related preparation and investigation costs. Also, in addition to the criminal prosecution and resulting fees imposed on Defendant, the State received over $33,000 in the forfeiture proceedings. See Austin v. United States, — U.S. -, -n. 4, 113 S.Ct. 2801, 2805 n. 4, 125 L.Ed.2d 488 (1993) (“The Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings, but only in cases where the forfeiture could properly be characterized as remedial.”); see also United States v. Millan, 2 F.3d 17, 20 (2d Cir.1993).

Based on these facts, Defendant met his burden to show the invalidity of the assessment, and therefore, the Department was required to present evidence showing otherwise. See Cibola Energy Corp., 105 N.M. at 777, 737 P.2d at 558. Since Defendant made a prima facie case regarding how the tax was violative of his double jeopardy right, the State was not excused from introducing evidence regarding the costs it incurred merely because the assessment is part of the legislative scheme to raise money for the general fund. See Barber, 108 N.M. at 710-11, 778 P.2d at 457-58.

As did the Supreme Court in Halper, 490 U.S. at 449, 109 S.Ct. at 1902, and the court in Kurth Ranch, 986 F.2d at 1311, we deem it important to note that this ease involves the special considerations that come into play when there is a previous criminal conviction. For this reason, the arguments made by the Department and the cases on which they rely and some of the eases on which the dissent relies, which solely involve tax proceedings and do not involve previous criminal convictions, are not persuasive. We do not decide the question of whether the State may seek both civil and criminal penalties in one proceeding. In a single proceeding, the multiple punishment issue is one of legislative intent. Halper, 490 U.S. at 450, 109 S.Ct. at 1902. Nor do we consider the proceedings in this ease, which were begun at different times and in which the tax hearing was conducted after the criminal and forfeiture proceedings were concluded, to be simultaneous or concurrent proceedings. See U.S. v. Millan, 2 F.3d 17 (2d Cir.1993).

The relevant inquiry, with respect to the issue of the constitutionality of the tax as applied to Defendant, is whether the assessment was proportionate to the remedial goals claimed by the State. See Kurth Ranch, 986 F.2d at 1311. As in Kurth Ranch, the record in this case is devoid of information necessary to make a determination of proportionality. See id. at 1312. Because the Department was aware that Defendant was relying on Halper and was aware that the lower court in Kurth Ranch had ruled in favor of the taxpayer, the Department should have known that it needed to make some showing of proportionality that would satisfy its burden under Halper. It did not, instead relying on cases involving an analysis of taxes alone to determine whether they are penalties rather than on the appropriate Halper analysis, which considers those cases in which there is a prior criminal penalty and in which the Court specifically held that a defendant is entitled to an accounting. Halper, 490 U.S. at 449, 109 S.Ct. at 1902. Because the Department did not provide that accounting, despite being on notice that the accounting was necessary, we affirm the decision of the hearing officer. In this connection, we note that much of the analysis in the dissent could equally have been done in Hal-per and have called for a different result in that case. Because it was not done there and because Halper arrived at the result it did, we believe the same result is appropriate here.

Defendant is awarded $2,500 as reasonable attorney fees for the defense of this appeal. See NMSA 1978, § 7-1-25(D) (Repl.Pamp.1993).

IT IS SO ORDERED.

PICKARD, J., concur. HARTZ, J., dissents.