Loyal Service Agency, Inc. v. N.M. Tax'n & Revenue Dep't ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40187
LOYAL SERVICE AGENCY, INC.,
a New Mexico corporation,
Plaintiff-Appellee,
v.
NEW MEXICO TAXATION & REVENUE
DEPARTMENT; and STEPHANIE SCHARDIN
CLARKE, Secretary of the New Mexico Taxation
& Revenue Department,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Matthew Wilson, District Court Judge
Atkinson, Baker & Rodriguez, P.C.
Justin D. Rodriguez
Julia E. McFall
Albuquerque, NM
for Appellee
Raúl Torrez, Attorney General
David Mittle, Special Assistant Attorney General
Santa Fe, NM
for Appellants
DECISION
WRAY, Judge.
{1} Defendant the New Mexico Taxation and Revenue Department (the Department)
appeals the district court’s grant of summary judgment to Plaintiff Loyal Services
Agency, Inc. (Taxpayer), which concluded that Taxpayer was entitled to a refund of
gross receipts taxes based on the deduction provided for by NSMA 1978, Section 7-9-
93(A) (2016, amended 2023). The Department argues on appeal that (1) the deduction
is available only to individual health care practitioners and not corporations; (2) as a
matter of law, Taxpayer does not satisfy all of the criteria for the deduction; and (3) the
regulations corresponding to Section 7-9-93 cannot expand the availability of the
deduction. This Court recently resolved the Department’s first and last arguments and
held that Section 7-9-93(A) and the accompanying regulations permit “an employer
entity to take the [d]eduction on behalf of an employee, provided that the entity is not
otherwise excluded and the remaining requirements under the [s]tatute are satisfied.”
Robison Med. Rsch. Grp. v. N.M. Tax’n & Revenue Dep’t, 2023-NMCA-065, ¶ 12, 535
P.3d 709.
{2} The Department did not preserve the second argument. See Rule 12-321(A)
NMRA (requiring a party to fairly invoke a ruling from the district court to preserve an
issue for appeal). On appeal, the Department argues that Taxpayer was required to—
and did not—establish that the receipts to be deducted were received pursuant to a
contract between a health care practitioner and a managed health care provider. See §
7-9-93(A) (allowing the deduction for the “[r]eceipts of a health care practitioner for
commercial contract services . . . paid by a managed health care provider”). At the
summary judgment stage, however, the Department did not dispute the asserted facts
that Taxpayer contracted with a federal agency to provide services or that the federal
agency was a managed health care provider. A fact not disputed is deemed admitted for
the purposes of summary judgment. See Rule 1-056(D)(2) NMRA (“All material facts set
forth in the statement of the moving party shall be deemed admitted unless specifically
controverted.”). Taxpayer supported the factual assertions with affidavit evidence and a
Rule 1-036(A) NMRA admission made by the Department in discovery in the present
case. See Rule 1-036(B) (providing that “[a]ny matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or amendment
of the admission” and limiting the effect of the admission to “the pending action”). The
Department made no legal argument in the district court, as it does on appeal, that the
federal agency was not a managed health care provider. As a result, the Department
did not preserve the issue for appeal, and we decline to consider the argument. See
Nellis v. Farmers Ins. Co. of Ariz., 2012-NMCA-020, ¶ 23, 272 P.3d 143 (“The rules of
preservation are no different for review of summary judgment than for review of other
final orders.”).
{3} For the reasons stated herein, we affirm.
{4} IT IS SO ORDERED.
KATHERINE A. WRAY, Judge
WE CONCUR:
KRISTINA BOGARDUS, Judge
ZACHARY A. IVES, Judge