This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 WILLIAM C. SEVERNS, 2 Protestant-Appellant/Cross-Appellee, 3

v. NO. 31,817 4 NEW MEXICO TAXATION AND 5 REVENUE DEPARTMENT, 6 Respondent-Appellee/Cross-Appellant. 7 IN THE MATTER OF THE PROTEST OF 8 WILLIAM C. SEVERNS & DIANE SEVERNS 9 TO ASSESSMENT ISSUED UNDER LETTER 10 ID NO. L1943398784, L0715680128, L2080205184, 11 LI074899328, L0384412032, LI25551040, and 12 LI308387712

. 13 APPEAL FROM THE TAXATION AND REVENUE DEPARTMENT 14 Brian VanDenzen, Hearing Officer 15 Tax Estate & Business Law, Ltd. 16 Clinton W. Marrs 17 Albuquerque, NM 18 Mendel Blumenfeld LLP 19 David J. Abell 20 Albuquerque, NM 21 for Appellant/Cross-Appellee 222 Gary K. King, Attorney General 1 Tonya Noonan Herring, Special Assistant Attorney General 2 Santa Fe, NM 3 for Appellee/Cross-Appellant 4 MEMORANDUM OPINION 5 VANZI, Judge. 6

{1} William C. Severns (Severns) appeals fro m the decision and order of a hearing 7 officer affirming the New Mexico Taxation and Revenue Department’s (the 8 Department) assessment of unpaid personal tax and interest for tax years 2001-2004 9 and 2006-2007. The main issue on appeal is whether the hearing officer correctly 10 determined that Severns was a New Mexico resident during the tax years at issue. In 11 addition, the Department cross-appeals th e hearing officer’s decision to abate the 12 Department’s assessment of penalties. Having considered the arguments raised in 13 each appeal, we remain unpersuaded and theref ore affirm the decision and order of the 14 hearing officer. 15 BACKGROUND 16

{2} For tax years 1977 through 2000, Severns and his wife, Diane Severns, were 17 residents of New Mexico and filed joint New Mexico personal income tax returns. 18 From tax year 2001 onwards, the Severns did not file personal in come tax returns in 19 New Mexico or in any other state. On June 13, 2008, the Department issued seven 20 notices of assessment for unpaid personal inco me tax, penalties, and interest for tax 213 years 2001 through 2007. Mr. Severns was th e only party named in the seven notices 1 of assessment. 2

{3} Severns timely filed a written protest to the assessments, claiming that he and 3 his wife were not New Mexico residents duri ng the tax years at issue and that they had 4 in fact changed their residency from New Mexi co to Nevada in 2001. Severns’ protest 5 was heard by a Department hearing officer over the course of a two-day evidentiary 6 hearing. During the hearing, Severns withdrew his protest with respect to tax year 7 2005, conceding that he was a New Me xico resident during that year. See NMSA 8 1978, § 7-2-2(S) (2007) (amended 2010) (providing that an individual is a New 9 Mexico resident for purposes of taxation if he or she is physically present in the state 10 for one hundred eighty-five days or more during the taxable year). After the hearing, 11 the hearing officer entered a decision and order finding that Severn s and his wife were 12 New Mexico residents for all remaining tax years at issue and that there was 13 insufficient evidence to establish a change of domicile from New Mexico to Nevada. 14 On this basis, the hearing officer affirmed the assessment of personal income taxes 15 plus interest for tax years 2001-2004 and 2006-2007. However, the hearing officer 16 reversed the Department’s assessment of penalties based on his finding that Severns 17 was not negligent in failing to file personal income tax returns for these tax years. In 18 addition, the hearing officer determined that Severns was not entitled to recover 19 attorney fees. 204 {4} Severns timely appealed the hearing offi cer’s residency determination and the 1 failure to award attorney fees to this Court. See NMSA 1978, § 7-1-25(A) (1989) 2 (providing for direct appeals to this Court from a decision and order of the hearing 3 officer). The Department filed a cross-appealof the hearing officer’s decision to abate 4 the assessment of the penalties. We addre ss the arguments raised in each appeal in 5

turn. 6 STANDARD OF REVIEW 7

{5} On appeal, this Court shall set aside a decision and order of the hearing officer 8 only if it is (1) arbitrary, capricious, or an abuse of discretion; (2) not supported by 9 substantial evidence in the record; or (3 ) otherwise not in accordance with the law. 10 Section 7-1-25(C); Holt v. N.M. Dep’t of Taxation & Revenue , 2002-NMSC-034, ¶ 4, 11 133 N.M. 11, 59 P.3d 491. “Whilewe employ the whole record standard of review, 12 the evidence is viewed in the light most favorable to the decision of the hearing 13 officer.” Brim Healthcare, Inc. v. Taxation & Revenue Dep’t , 119 N.M. 818, 819, 896 14 P.2d 498, 499 (Ct. App. 1995); see Kewanee Indus., Inc. v. Reese , 114 N.M. 784, 786- 15 87, 845 P.2d 1238, 1240-41 (1993). “If more th an one inference can be drawn from 16 the evidence[,] then the in ference drawn by the heari ng officer is conclusive.” 17 Kewanee Indus. , 114 N.M. at 787, 845 P.2d at 1241. In reviewing the hearing 18 officer’s decision, we also take into account the statutory presumption that an 19 assessment of taxes by the Department is correct, see NMSA 1978, § 7-1-17(C) 205 (1992) (amended 2007), and that Severn s had the burden of overcoming this 1 presumption of correctness. See Holt , 2002-NMSC-034, ¶ 4 (noting that the “burden 2 is on the taxpayer protesting an assessment by the Department to overcome the 3 presumption that the Department’s asse ssment is correct.” (alterations, internal 4 quotation marks, and citation omitted)). 5 DISCUSSION 6 Main Appeal 7

{6} Severns appeals the hearing officer’s de termination that he was a New Mexico 8 resident during tax years 2001-2004 and 2006- 2007 and that there was insufficient 9 evidence to establish a change in domicile from New Mexico to Nevada in 2001. 10 Severns specifically contends that the hearing officer (1) misapplied New Mexico law 11 on domicile by requiring Severn s to show that he maintained a continuous physical 12 presence in Nevada during the tax years at issue; (2) erred in holding that Severns 13 failed to rebut the statutory presumption that the Department’s assessments were 14 correct; and (3) misapplied the factors fo r determining domicile, as set forth in 15 3.3.1.9(C)(4) NMAC (12/15/2010). We turnfirst to the applicable law and then 16 address the arguments raised by Severns. 17

1. New Mexico Law on Residency 186 {7} Under NMSA 1978, Section 7-2-3 (1981), “[a] tax is imposed at the rates 1 specified in the Income Tax Act upon the net income of every resident individual” 2 unless otherwise exempted by law. Prior to 2003, “resident” was defined in the 3 Income Tax Act as “an individual who wa s domiciled in [New Mexico] during any 4 part of the taxable year.” Section 7-2- 2(S) (1993). An individual was not a resident 5 if he or she, “on or before the last day of the taxable year, changed his place of abode 6 to a place” outside of New Mexico “with th e bona fide intention of continuing actually 7 to abide permanently [there.]” Id. 8

{8} In 2003, the Legislature amended the de finition of resident to include “an 9 individual who is physically present in [New Mexico] for one hundred eighty-five 10 days or more during the taxable year[.]” Section 7-2-2(S) (2003). Thus, following the 11 amendment, an individual is considered a New Mexico resident if he or she was 12 domiciled in New Mexico during any part of the taxable year or if he or she was 13 physically present in New Mexico for one hundred eighty-five days or more during 14 the taxable year. Id. The Legislature further indicated that “any individual, other than 15 someone who was physically present in the state for one hundred eighty-five days or 16 more during the taxable year, who, on or be fore the last day of the taxable year, 17 changed his place of abode to a place” outs ide of New Mexico “with the bona fide 18 intention of continuing actually to abide permanently [there]” was not a resident for 19 purposes of taxation. Id. 207 {9} Our Supreme Court has stated that the definition of reside ncy is substantially 1 synonymous with domicile for income tax purposes. Hagan v. Hardwick , 95 N.M. 2 517, 518, 624 P.2d 26, 27 (1981); see Murphy v. Taxation & Revenue Dep’t , 94 N.M. 3 54, 55, 607 P.2d 592, 593 (1980) (stating that a New Mexi co “resident” is “an 4 individual domiciled in New Mexico at any time during the taxable year who does not 5 intentionally change his domicile by the end of the year”). “Domicile” has been 6 defined in the Department’s regulations as “the place where an individual has a true, 7 fixed home, is a permanent establishment to which the individual intends to return 8 after an absence, and is where the indivi dual has voluntarily fixed habitation of self 9 and family with the intention of making a permanent home.” 3.3.1.9(C)(1) NMAC. 10 “Every individual has a domicile somewh ere, and each individual has only one 11 domicile at a time.” Id. 12

{10} In In re Estate of Peck , 80 N.M. 290, 292, 454 P.2d 772, 774 (1969), our 13 Supreme Court provided that “a change of domicile requires both physical presence 14 in the new locality and an intention to abandon the old domicile and to make a home 15 in the new dwelling place without a present intention to leave it[.]” Later, in Hagan , 16 our Supreme Court set forth the following standard for determining a change in 17 domicile: 18 To effect a change from an old and established domicile to a new one, 19 there must be a fixed purpose to re main in the new location permanently 20 or indefinitely. For domicile once ac quired is presumed to continue until 218 it is shown to have changed, and to show the change two things are 1 indispensable,—“First, residence inthe new locality; and, second, the 2 intention to remain there[.] 3 95 N.M. at 519, 624 P.2d at 28 (alterations, internal quotation marks, and citation 4 omitted); see 3.3.1.9(C)(2) NMAC (“Once establis hed, domicile does not change until 5 the individual moves to a new location withthe bona fide intention of making that 6 location his or her permanent home.”). 7 2. Severns’ Arguments on Appeal 8

{11} Severns’ initial argument on appeal is th at the hearing officer misapplied New 9 Mexico law on domicile by requi ring Severns to show that he maintained a continuous 10 physical presence in Nevada during the tax years at issue. Relying on authority from 11 other jurisdictions, Severns argues that ther e is no requirement th at a taxpayer remain 12 physically present in the new locality fo r a minimum period of time—instead, what 13 is dispositive in showing a change of domic ile is a concurrence of intent and physical 14 presence in the new locality, “however flee ting” that physical presence may be. In 15 contending that the hearing officer errone ously created a minimum durational physical 16 presence requirement, Severns points to a single sentence in the hearing officer’s 17 decision and order where the hearing officerstated that “[Severns] simply lacked 18 enough physical presence in a new locality to pass the Estate of Peck and Hagan 19 change of domicile standard.” 209 {12} Our review of the hearing officer’s deci sion leads us to conclude that Severns 1 has taken the above sentence out of context to create the impression that the hearing 2 officer required Severns to show a mini mum period of physical presence in Nevada 3 during the tax years at issue. This was not the case. The hearing officer’s analysis of 4 Severns’ residency included a thorough disc ussion of applicable New Mexico law on 5 domicile and correctly set forth the test fo r establishing a change of domicile. The 6 hearing officer’s discussion of Severns’ physi cal presence in Nevada was solely in the 7 context of describing conduc t by Severns that undercut his expressed intention to 8 change domicile from New Mexico to Nevada. As the hearing officer stated in the 9 decision, Severns’ “physical presence is . . . a relevant consideration for the entire 10 period at issue in this matter because it is an objective fact in which [Severns’] 11 intentions can be measured against [Severns’] actions.” While the single sentence 12 relied upon by Severns may give the improper impression that the hearing officer 13 crafted a minimum physical presence require ment, the sentence merely supports the 14 hearing officer’s conclusion that Severns’ physical presence, or lack thereof, in 15 Nevada undercut his testimony th at he intended to establis h residency in Nevada. We 16 acknowledge that Severns maintained below, and on appeal, that he and his wife 17 became empty-nesters in 2001, left New Me xico, and established Nevada residency 18 during that same year and then embarkedon a “new lifestyle of full-time RVing” 19 during the remaining tax years at issue. However, even given Severns’ arguments 2010 regarding his travels, we c onclude that it was not improper for the hearing officer to 1 consider, as relevant to the question of Seve rns’ intent to estab lish Nevada residency, 2 the fact that Severns spent only 105 days, “or less than 5% of the total time, in Nevada 3 over a seven-year period[,] ” and “over half [his] time—1,377 days—in New Mexico.” 4

{13} Before considering Severns’ remaining arguments, we note that Severns ignores 5 the effect of his concession for tax year 2005 on subsequent tax years 2006 and 6 2007—during which he spent zero and four days in Nevada, respectively. Having 7 conceded that he was a New Mexico resi dent during tax year 2005 due to his physical 8 presence in the state for one-hundred eighty five days or more, we presume that 9 Severns’ residency in New Mexico continued in subs equent tax years 2006 and 2007, 10 unless shown otherwise. See Hagan , 95 N.M. at 519, 624 P.2d at 28 (stating that a 11 “[d]omicile once acquired is presumed to c ontinue until it is show n to have changed”). 12 Severns stipulated below that he spent zer o days in Nevada during tax year 2006 and, 13 thus, without any physical presence in Ne vada that year, it was not possible to 14 establish a change of domicile from New Mexico to Nevada during 2006. See Estate 15 of Peck , 80 N.M. at 292, 454 P.2d at 774 (stating th at “a change of domicile requires 16 both physical presence in the new locality and an intention to abandon the old 17 domicile”); see also Hagan , 95 N.M. at 519, 624 P. 2d at 28 (explaining that 18 “residence in the new locality” is one of two indispensable elements required in 19 showing a change of domicile). In tax year 2007, Severns stipulated that he spent only 2011 four days in Nevada, and there is no indi cation that Severns presented any evidence 1 below showing that he had an intent to change his domicile from New Mexico to 2 Nevada during the four days he spent in Nevada. Thus, Severn s failed to overcome 3 the presumption that the Department’s asse ssments of unpaid personal income tax and 4 interest for tax years 2006 and 2007 were correct. Although the hearing officer did 5 not consider the concession in its analysis of these two tax years, we conclude that the 6 hearing officer correctly held that Severn s remained a New Mexico resident during 7 tax years 2006 and 2007. See Conoco, Inc. v. Taxation & Revenue Dep’t , 122 N.M. 8 745, 756, 931 P.2d 739, 750 (Ct. App 1995) (“To the extent that our analysis differs 9 from that of the hearing officer, this Court will affirm if the ruling appealed from is 10 right for any reason.”), rev’d on other grounds , 1997-NMSC-005, 122 N.M. 736, 931 11 P.2d 730. 12

{14} We therefore consider Severns’ remain ing arguments in the context of the 13 remaining tax years at issue, 2001-2004. With respect to tax year 2001, Severns 14 contends that the evidence shows that hephysically moved to Nevada with the 15 intention of making Nevada his new domicile, thereby meeting the Estate of Peck and 16 Hagan requirements for a change in domicile. We construe this as a substantial 17 evidence argument and thus consider whether the hearing officer’s determination that 18 Severns remained a New Me xico resident during tax year 2001 was not supported by 19 substantial evidence. 2012 {15} In support of his determination that Se verns remained a New Mexico resident 1 during tax year 2001, the hearing officer applied a presumpti on based on regulations 2 in effect during tax year 2001. 3.3.1.9(C)(1) NMAC (12/14/2000). The hearing 3 officer found that Severns was presumed to be a New Mexico resident during that year 4 because he possessed a New Me xico driver’s license and remained a registered New 5 Mexico voter that year. See id. (providing that an individual is presumed to be a New 6 Mexico resident during a taxable year if th e individual is registered to vote in New 7 Mexico and has not subsequently registeredto vote in another state, or if the 8 individual has a New Mexico driver’s licenseand has not been subsequently licensed 9 by another state before the end of the taxa ble year). On appeal, Severns argues that 10 the hearing officer improperly imposed this presumption becauseSeverns attempted 11 to change his voter registration to Nevada at a shopping mall in 2001. Although this 12 attempt at registration failed and Severns did not u ltimately change his voter 13 registration to Nevada until tax year 2004, Severns argues thatthe hearing officer 14 should have considered the attempt as suffi cient to rebut the presumption. However, 15 aside from citing to a Department decision and order that is not binding on this Court, 16 Severns fails to point to any authority th at supports his positi on that the attempt to 17 change voter registration was sufficient. See In re Adoption of Doe , 100 N.M. 764, 18 765, 676 P.2d 1329, 1330 (1984) (stating thatwhere a party cites no authority to 19 support an argument, we may assume no such authority exists). We therefore see no 2013 basis upon which to conclude that the hearing officer erred in applying the 1 presumption of residency b ecause Severns remained a Ne w Mexico registered voter 2 and licensed New Mexico driver in 2001. 3

{16} Next, Severns argues that a number of actions taken by hi m and his wife in 4 2001were sufficient to rebut the presumption that the Department’s assessment for tax 5 year 2001 was correct. See 3.1.6.12(A) NMAC (01/15/2001) (stating that “[t]he effect 6 of the presumption of correctness is th at the taxpayer has the burden of coming 7 forward with some countervailing evidence tending to dispute the factual correctness 8 of the assessment made by the secretary” ). Specifically, Severns relies on the 9 following facts as supporting a change of domicile from New Mexico to Nevada: (1) 10 the purchase of a RV lot in Boulder City , Nevada, in February 2001; (2) consulting 11 with a New Mexico attorney in January 2001 regarding plans to change domicile; (3) 12 recording a homestead declaration in Ne vada for the RV lot in March 2001; (4) 13 ordering banking checks made with the Nevada RV-lot address on them in September 14 2001; (5) Severns’ wife obtaining a Nevada driver’s license in September 2001; (6) 15 Severns’ wife registering to vote in Ne vada and Severns’ uns uccessful attempt to 16 change voter registration in September 2001; (7) divestment of personal property and 17 storing personal effects during 2001; and (8) leaving New Mexico community 18 affiliations and groups. Severn s contends that the hearing officer erred in concluding 1914 that Severns failed to overc ome the presumption of correctness based on the foregoing 1 facts. 2

{17} After review of the whole record, wedisagree with Severns’ argument and 3 conclude that the hearing officer’s determination that Severns remained a New 4 Mexico resident during tax year 2001 and all remaining tax years at issue was 5 supported by substantial evidence. Although Severns undertook some actions in 2001 6 that might support a conclusion that he inte nded to change domicileto Nevada, there 7 were contrary facts in the record to s upport the hearing officer’s determination that 8 Severns remained a New Mexico resident during that year. As we observed earlier, 9 the evidence is viewed in the light most favorable to the deci sion of the hearing 10 officer, and “[i]f more than one inference can be drawn from the evidence[,] then the 11 inference drawn by the hearing officer is conclusive.” See Kewanee Indus. , 114 N.M. 12 at 787, 845 P.2d at 1241. The hearing of ficer found that Severns was physically 13 present in New Mexico for 233 days in 2001 and spent only fourteen days in Nevada 14 that year. Although Severns argues that hehad physically moved to Nevada by the 15 fall of 2001 and abandoned his New Mexico domicile, the record shows otherwise. 16 According to exhibits placed in the record by Severns, hespent one day in Nevada in 17 February (the date the RV-lot deed was recorded), three days in September (stopping 18 over in Nevada during a trip to San Die go), and eleven days in early December. 19 However, after the December trip to Neva da, Severns returned to New Mexico, and 2015 he proceeded to spend 222 days in New Mexi co in 2002, returning to Nevada for only 1 twenty-one days during that year. Thus , although Severns took acts that supported a 2 connection to Nevada in 2001, he nevertheless returned to New Mexico at the end of 3 tax year 2001 and continued to spend significant amounts of time in New Mexico in 4 subsequent years. 5

{18} Moreover, Severns remaineda New Mexico licensed driver throughout all tax 6 years at issue and even went so far as to renew his New Mexico driver’s license for 7 an additional eight years in 2003. Severns failed to change his voter registration to 8 Nevada until 2004. The RV purchased by Se verns in October 2001 was registered and 9 titled with the New Mexico Motor Vehicle Division, and it remained registered in 10 New Mexico throughout all remaining tax years. In addition, the property tax bills for 11 the Nevada RV-lot purchased by Severns in 2001 were mailed to Severns’ 12 Albuquerque home. With the exception of onevehicle that was registered in Nevada 13 in September 2001, all of Severns’ remaining vehicles, including those acquired 14 before and during the tax years at issu e, were registered in New Mexico. 15

{19} Severns continued to own a home inAlbuquerque, New Mexico, and he paid 16 for cleaning, maintenance, and utility cost s each month during all of the tax years at 17 issue. The Albuquerque home was used as a “mail dump” throughout the relevant tax 18 years, and Severns had house-sitters gather the mail and forward it to him at whatever 19 location Severns was in. A lthough Severns and his wife donated a number of personal 2016 belongings in 2001, their remaining personal e ffects were stored in a barn at Severns’ 1 Albuquerque home and remained there during all subsequent tax years. Severns 2 continued banking with a bank that had locati ons in New Mexico and in Nevada. And 3 Severns spent the holidays in New Mexico in tax years 2001-2003. Throughout the 4 tax years at issue, Severns received no me dical care in Nevada, and he continued to 5 receive any necessary medical, dental, and other related care in New Mexico. 6

{20} Severns argued below, and ag ain on appeal, that his continued activities in New 7 Mexico during the tax years at issue were merely because New Mexico was a 8 centralized location that fit well within his RV-travel plans. However, travel charts 9 covering Severns’ travels during years 2003 through 2006 showed that all travel 10 during these years began in Albuquerque and ended in Albuquerque. That is, except 11 in instances where Severns stopped in Nevada during a trip, all trips departed from 12 Albuquerque and returned there, whether the trips were taken by RV or by air travel. 13 When Severns and his wife were not trave ling, the RV was stored, not in Nevada, but 14 at their Albuquerque home. Thus, as the hearing officer noted in his decision, New 15 Mexico, and not Nevada, remained “the co mmon denominator in most of [Severns’] 16 travels.” 17

{21} In light of the whole record before us, we conclude that there was substantial 18 evidence to support the hearing officer’s de termination that Severns remained a New 19 Mexico resident in tax year2001 and all subsequent tax years. Even though Severns 2017 presented evidence of preparatory acts taken in 2001, there is a multitude of 1 countervailing findings entered by the hearing officer that support the hearing 2 officer’s residency determination. Basedon the foregoing, we affirm the hearing 3 officer’s denial of Severns’ protest as to unpaid personal taxes and interest for tax 4 years 2001-2004 and 2006-2007. In light of our holding, we affirm the hearing 5 officer’s determination that Severns is not entitled to attorney fees. See NMSA 1978, 6 § 7-1-29.1(A), (B)(3)(b) (2003) (providing th at a taxpayer is entitled to reasonable 7 administrative costs, including attorney f ees, in connection with an administrative 8 hearing if the taxpayer is the prevailing party). 9 The Department’s Cross-Appeal 10

{22} The Department appeals the hearing offi cer’s decision to eliminate the civil 11 negligence penalty that was assessed by the Department ag ainst Severns for tax years 12 2001-2004 and 2006-2007. The penalty asse ssed by the Department was based on 13 NMSA 1978, Section 7-1-69 (2007) , the civil penalty for failu re to pay a tax or file 14 a return. Section 7-1-69(A) provides, in pertinent part, that a penalty may be added 15 to an assessment where the failure to pay personal income taxes is “due to negligence 16 or disregard of [D]epartment rules and re gulations, but without intent to evade or 17 defeat a tax[.]” In this case, the hearing officer determined that Severns was not 18 negligent and, thus, not subject to the civil penalty under Section 7-1-69(A) because 1918 he “relied on the advice of competent c ounsel in attempting to change domicile[.]” 1 The Department contends that this determination by the hearing officer was erroneous. 2

{23} The Department first argues that Section 7-1-69 is not applicable under the facts 3 of this case because Severns intentionally or willfully evaded the payment of personal 4 income taxes. See § 7-1-69(A) (providing that the ci vil penalty may be added where 5 the failure to pay is “due to negligence or disregard of [D]epartment rules and 6 regulations, but without intent to evade or defeat a tax” (emphasis added)). The 7 Department points to certain conduct by Se verns that it alleges supports a finding of 8 an intent to evade the payment of personal income taxes. Severns argues that the 9 Department failed to raise this argument be fore the hearing officer and thus did not 10 preserve this issue for appeal. We agree. 11

{24} Section 7-1-25(A) provides that the protestant or the Department may appeal 12 the decision and order of the h earing officer to this Court “ but only to the same extent 13 and upon the same theory as was asserted in the hearing before the hearing officer.” 14 (Emphasis added.) In this case, the Department failed to argue below that Section 7- 15 1-69 was inapplicable; to the contrary, the Department stated in its closing argument 16 that the assessment of the penalty agai nst Severns was govern ed by Section 7-1-69 17 and that, under this section, Severns was subject to the penalty because he was 18 negligent in failing to pay personal incometaxes. In its proposed findings and 19 conclusions of law submitted after the hearing, the Department again reiterated that 2019 the penalty was correctly assessed under S ection 7-1-69 on the basis of negligence, 1 and the Department did not seek a finding that Severns intentionally evaded the 2 payment of personal income taxes. Thus, the hearing offi cer was never alerted to and 3 did not enter a ruling on the argument now raised by the Department on appeal—that 4 Section 7-1-69 is inapplicable because Severns attempted to evade payment of 5 personal income taxes. We therefore do not consider this issue on appeal. See 6 Crutchfield v. N.M. De p’t of Taxation & Revenue , 2005-NMCA-022, ¶ 14, 137 N.M. 7 26, 106 P.3d 1273 (“[O]n appeal, the party mustspecifically point out where, in the 8 record, the party invoked [a] ruling on the issue. Absent that citation to the record or 9 any obvious preservation, we will not consider the issue.”). 10

{25} The Department argues, in the alternative, that even if Section 7-1-69 is 11 applicable, the hearing officer erred in finding that Severns was not negligent in 12 failing to pay personal income taxes during the tax years at issue because Severns 13 relied on the advice of competent counselin attempting to change domicile. 14 “Negligence,” for purposes of Section 7-1-69(A) , is defined as the “failure to exercise 15 that degree of ordinary business care and prudence which reasonable taxpayers would 16 exercise under like circumstances; . . . inac tion by taxpayers where action is required; 17 . . . [or] inadvertence, indifference, though tlessness, carelessness, erroneous belief or 18 inattention.” 3.1.11.10 NMAC (01/15/2001). 1920 {26} Section 7-1-69 and the Department’s re gulations also describe circumstances 1 where a taxpayer may be found to not be ne gligent in failing to file personal income 2 taxes. Specifically, Section 7-1-69(B) provi des that “[n]o penaltyshall be assessed 3 against a taxpayer if the failure to pay an amount of tax when due results from a 4 mistake of law made in good faith and on reasonable grounds.” And the Department’s 5 regulations include a list of situations where a taxpayer may be found to not be 6 negligent or in disregard of Department rules and regulations. See 3.1.11.11 NMAC 7 (01/15/2001). In this case, the hearing offi cer determined that the following situation 8 set forth in 3.1.11.11(D) NMAC applied to this case: 9 [T]he taxpayer proves that the failure to pay tax or to file a return was 10 caused by reasonable reliance on the a dvice of competent tax counsel or 11 accountant as to the taxpayer’s liability after full disclosure of all 12 relevant facts[.] 13 The hearing officer concluded that Severn s proved that he had “sought and relied on 14 the advice of competent counsel . . . befo re attempting to switc h . . . domicile from 15 New Mexico to Nevada.” The hearing o fficer credited Severns’ testimony regarding 16 his consultations in 2001 and 2002 with a Ne w Mexico attorney regarding a change 17 of domicile from New Mexico to Nevada, and in particular, found that an invoice from 18 one of these consultations confirmed the nature of the advice given by this attorney. 19 The invoice stated that the attorney held“a conference with [Severns] regarding 2021 change of domicile. All facts considered in determining domicile. Review of facts 1 which indicate change of domicile to Nevada.” 2

{27} The Department argues that the hearing officer incorrectly applied 3.1.11.11(D) 3 NMAC because Severns failed to disclose all relevant facts to the attorney at the time 4 of the consultations. We are not persuaded. The hearing officer concluded that all 5 relevant facts were provided to the attorney on the basis of the attorney invoice and 6 Severns’ corroborating testimony. The Department asks this Court to draw other 7 conflicting inferences from the record as to what facts Severns should have but failed 8 to disclose to the attorney. We decline to do so because “[i]f mo re than one inference 9 can be drawn from the eviden ce[,] then the inference dr awn by the hearing officer is 10 conclusive.” Kewanee Indus. , 114 N.M. at 787, 845 P.2d at 1241. Finally, the 11 Department argues that Severns’ “inatten tion to the effect of [his] change in 12 circumstances” in tax years beyond 2001 and hi s failure to seek additional tax advice 13 regarding domicile in later y ears constitutes negligence. We disagree. The hearing 14 officer determined that Severns’ relian ce on counsel’s advice was reasonable and that 15 Severns followed the advice pr ovided by counsel. The hearing officer concluded that 16 Severns’ actions in later years—including specifically keeping the Albuquerque home 17 as an investment property—were based on the advice provided by the attorney, and 18 that the consultations were sufficient to support a finding of non-negligence. See 19 Tiffany Constr. Co. v. Bureau of Revenue , 90 N.M. 16, 17, 558 P.2d 1155, 1156 (Ct. 2022 App. 1976) (upholding a penalty assessment where the taxpayer failed to seek advice 1 from legal or accounting sources and reiterati ng that a taxpayer’s duty to ascertain the 2 possible tax consequences of his action canbe met by consultati on with one’s legal 3 advisor). We decline to speculate as to future actions Severns should have taken 4 where the hearing officer properly determinedthat Severns’ initial consultations with 5 counsel fulfilled the requirements of 3. 1.11.11(D) NMAC. Based on the foregoing, 6 we affirm the hearing officer’s abat ement of the civil negligence penalty. 7 Diane Severns Was Not a Party Below 8

{28} In both appeals, Severns and the Department contest whether Severns’ wife, 9 Diane Severns, was a party to the protest hearing below. We note that the hearing 10 officer’s decision and order named Mrs. Severns as a party to the protest and referred 11 to her and her husband as “T axpayers” subject to the Department’s assessments. On 12 appeal, Severns argues that the hearing o fficer’s order incorrectly identifies Mrs. 13 Severns as a party because the Department’s assessments were directed solely to him 14 and he was the sole protestant. We agree. The record confirms that Severns, and not 15 his wife, was named in all se ven notices of assessment issued by the Department and 16 that Severns filed the protest with the Department on his behalf only. In addition, the 17 joint stipulation of facts filed by both parties during the protest hearing confirmed that 18 the parties considered Severns to be the sole protes tant in the proceedings. See NMSA 19 1978, § 7-1-3(W) (2003) (amended 2009) (defin ing a “taxpayer” as any individual “to 2023 whom an assessment has been made, if the assessment remains unabated or the 1 amount thereof has not been paid”). The f act that Mrs. Severns attended the protest 2 hearing with her husband did not render her a party to the protest. Thus, to the extent 3 that the hearing officer named Mrs. Severn s as a taxpayer subject to his decision, we 4 conclude that this was erroneous. 5 CONCLUSION 6

{29} Based on the foregoing, we affirm the d ecision and order of the hearing officer 7 as to Severns. Because the hearing offi cer’s decision errone ously named Severns’ 8 wife as a party, we reverse that aspect of the decision and order and remand with 9 directions that Severns’ wife be removed as a party in this case. 10

{30} IT IS SO ORDERED. 11

__________________________________ 12 LINDA M. VANZI, Judge 13 WE CONCUR: 14

_________________________________ 15 RODERICK T. KENNEDY, Chief Judge 16

_________________________________ 17 MICHAEL D. BUSTAMANTE, Judge 18