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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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 JACOB and JEANNE KURIYAN , 2 Protestants-Appellants, 3

v. No. 35,282 4 NEW MEXICO TAXATION and 5 REVENUE DEPARTMENT , 6 Respondent-Appellee, 7 IN THE MATTER OF THE PROTEST 8 OF JACOB & JEANNE KURIYAN TO 9 DEPARTMENT’S DENIAL OF REFUND 10 ISSUED UNDER LETTER ID NO. L1600681936. 11 APPEAL FROM THE TAX ADMINISTRATIVE HEARINGS OFFICE 12 Brian VanDenzen, Interim Chief Hearing Officer 13 Barnett Law Firm PA 14 Colin Hunter 15 Jordy L. Stern 16 Albuquerque, NM 17 for Appellants 18 NM Department of Taxation & Revenue 19 Cordelia Anna Friedman 20 Albuquerque, NM 21 for Appellee 222 MEMORANDUM OPINION 1 VIGIL, Chief Judge. 2 {1} Protestants Jacob and Jeanne Kuriyan appeal from the decision and order, 3 entered by the New Mexico Taxation and Revenue Department (the Department) 4 hearing officer on December 17, 2015. [DS 1; RP 1] In this Court’s notice of proposed 5 disposition, we proposed to summarily affirm. Protestants filed a memorandum in 6 opposition (MIO) and supplemental docketing statement (SDS), which we have duly 7 considered. Remaining unpersuaded, we affirm. 8 {2} We note as an initial matter that the issues in Protestants’ memorandum in 9 opposition are not phrased as the same issues that were raised in Protestants’ original 10 docketing statement. Thus, to the extent Pro testants have not responded to our notice 11 of proposed disposition on any of the issues raised in their docketing statement, such 12 issues are deemed abandoned. See State v. Johnson , 1988-NMCA-029, ¶ 8, 107 N.M. 13 356, 758 P.2d 306 (stating that when a case is decided on the summary calendar, an 14 issue is deemed abandoned where a party fails to respond to the proposed disposition 15 of the issue). 16 {3} Motion to Amend: We further note as a preliminary matter that, to the extent 173 the issues that Protestants have asserted in their memorandum in opposition were not 1 raised in Protestants’ original docketing statement, we construe the introduction of 2 such issues as a motion to amend the docketing statement. SeeRule12-208(F) NMRA. 3 In order for this Court to grant a motion to amend the docketing statement, the movant 4 must meet certain criteria that estab lishes good cause for our allowance of such 5 amendment. See State v. Moore , 1989-NMCA-073, ¶¶ 41–42, 109 N.M. 119, 782 P.2d 6 91, overruled on other groundsby State v. Salgado , 1991-NMCA-044, ¶ 2, 112 N.M. 7 537, 817 P.2d 730; State v. Rael , 1983-NMCA-081, ¶¶ 15–16, 100 N.M. 193, 668 8 P.2d 309. “The essential requirements to show good cause for our allowance of an 9 amendment to an appellant’s docketing statement are that (1) the motion be timely, 10 (2) the new issue sought to be raised was either (a) properly preserved below or (b) 11 allowed to be raised for the first time on appeal, and (3) the issues raised are viable.” 12 Moore , 1989-NMCA-073, ¶ 42. For the reasons discussed below, we are unpersuaded 13 by Protestants’ arguments regarding equ itable estoppel and due process and thus 14 consider such issues non-viable. See id. ¶¶ 42–43. As such, we deny Protestants’ 15 motion to amend. 16 {4} Equitable Estoppel: In their memorandum in opposition, Protestants argue that 17 the Department “should have been equitably estopped from arguing that [Protestants] 18 missed the 210-day deadline with which tofile a civil action or protest the 194 Department’s inaction of [their] tax refund request.” [MIO 2] Pro testants contend that 1 all of the requirements for equitable estoppel have been met in the present case 2 because (1) the Department was aware of all the facts regarding Protestants’ refund 3 request; (2) the Department intended its conduct to be acted upon or so acted that 4 Protestants had the right to believe it was so intended—here, that the basis for the 5 denial was that the Department did not receive the correct fo rm by the three-year 6 statute of limitations deadline; (3) Protestants must have been ignorant of the true 7 facts—here, that the basis for denial wa s the failure to comply with the 210-day 8 deadline; and (4) Protestants reasonably re lied on the Department’s conduct which led 9 to their injury—here, that Protestants were unaware of the 210-day deadline issue and 10 did not retain counsel to properly argue in their favor. [MIO 3–4] See Kilmer v. 11 Goodwin (In re Protest of Kilmer) , 2004-NMCA-122, ¶ 27, 136 N.M. 440, 99 P.3d 12 690 (setting forth the four elements required to establish equitable estoppel against the 13 government, as indicated above). 14 {5} The relevant facts are as follows and were identified in the hearing officer’s 15 decision and order as presented at the protest hearing through witnesses and exhibits. 16 [ SeeRP 1] On or about October 13, 2010, Protestants submitted their 2009 New 17 Mexico PIT-1 personal income tax return and claimed a re fund in overpayment of tax. 18 [RP 3 (¶¶ 15–16)] Protestants requested that a portion of their refund be applied to 195 their estimated 2010 personal income taxes, with the remainder to be refunded to 1 them. [RP 3 (¶ 16)] The Department receive d the tax return fo rm on October 14, 2010. 2 [RP 3 (¶ 17)] The Department took no action to approve or deny the claim for refund 3 by February 11, 2011, which was 120 days after Protest ants’ filing. [RP 3 (¶ 18)] 4 Protestants did not initiate a civil action in district court or file a protest with the 5 Department by May 12, 2011, which was 210 days after the filing of their 2009 tax 6 return. [RP 3 (¶ 19)] 7 {6} Nearly two years later, around April 2013, Protestants realized they had not 8 received their requested claim for refund of their 2009 taxes, so they contacted their 9 accountant to determine what happened. [RP 4 (¶¶ 20–21)] Apparently around this 10 same time, the Department determined that it had never received Protestants’ 2008 11 income tax return and communicated that fact with Protestants’ accountant. [RP 4 12 (¶ 22)] The Department suggested at the protes t hearing that its failure to take action 13 on the 2009 return stemmed from the absen ce of Protestants’ 2008 tax return, which 14 effectively placed Protestants’ account on hol d. [RP 4 (¶ 23)] Accordingly, on April 15 17, 2013, Protestants resubmitted their 2008 personal income tax return. [RP 4 (¶ 24)] 16 {7} Between April and November 2013, Protestants’ accountant called the 17 Department three to four times to check on the status, and he apparently received 18 verbal confirmation that all previous returns had been filed and that there were no 196 filing deficiencies in prior returns. [RP 4 (¶ 25)] The accountant was also never 1 informed of the need to file an application for refund of the 2009 personal income tax. 2 [RP 4 (¶ 25)] Sometime in December 2013, Protestant s received a letter from the 3 Department containing applications to re quest refunds for three separate years, 4 including 2009. [RP 5 (¶ 26)] Protestants comp leted all three applications and mailed 5 them to the Department before the end of the year. [RP 5 (¶ 27) ] Protestants received 6 refund checks for two of their applications, but did not receive a check for their 7 application for 2009. [RP 5 (¶ 28)] The hearing officer was convinced that Protestants 8 submitted the application for refund for 2009 before the December 31, 2013 statute 9 of limitations expired. [RP 5 (¶ 29)] SeeNMSA 1978, § 7-1-26(D) (2015). 10 {8} Nonetheless, the Department took no ac tion to approve or deny Protestants’ 11 application for refund within 120 days, wh ich would have been April 23, 2014. [RP 12 5 (¶ 30)] See§ 7-1-26(B)(2), (C) (stating in pertinen t part that, “[i]f the department has 13 neither granted nor denied any portion of a claim for refund within [120] days of the 14 date the claim was mailed or delivered tothe department, the person may refile it 15 within the time limits set forth in Subsection D of this section or may within [90] days 16 elect to pursue one, but only one , of the remedies in Subsection C of this section,” 17 which includes commencing a civil action in district court)] Despite the Department’s 18 failure to act, Protestants did not initiate a civil action in district court or file a protest 197 within 210 days, or before July 22, 2014. [RP 5 (¶ 31)] See id. (stating in pertinent 1 part that, “[a]fter the expiration of the [ 210] days from the date the claim was mailed 2 or delivered to the department, the department may not approve or di sapprove the 3 claim unless the person has pursued one of the remedies under Subsection C of this 4 section,” which includes directing a written protest to the secretary or filing a civil 5 action in district court). (emphasis adde d). Rather, it was not until January 13, 2015, 6 that the Department denied Protestants ’ claim for a refund of 2009 personal income 7 tax, claiming as a reason that the claim wa s not filed within th e 3-year statute of 8 limitations. [RP 1 (¶ 1)] Thereafter, on April 9, 2015, Protestants submitted a protest 9 to the denial, and, on April 22, 2015, th e Department acknowledged receipt of such 10 protest. [RP 2 (¶¶ 2–3)] 11 {9} As acknowledged by the hearing officer, Pro testants complied with the statute 12 of limitations for filing a claim for refund for their 2009 taxes. [RP 6] However, the 13 Department failed to take action on a clai m for refund within 120 days from the claim. 14 [RP 6–7] In such a case, as indicated above, Section 7-1-26(B)(2 ) provides a taxpayer 15 90 days within which to either file a protest or commence a civil action in district 16 court. [RP 7] See§ 7-1-26(B)(2). As explained by the hearing officer, “[i]n other 17 words, in the face of Department inacti on, a taxpayer has 210-days from the original 18 filing date of the claim for refund to preservetheir [sic] claim by either filing a protest 198 or a civil action.” [RP 7] See Unisys Corp. v. N.M. Taxation & Revenue Dep’t , 1994- 1 NMCA-059, ¶ 15, 117 N.M. 609, 874 P.2d 1273 (s tating that Section 7-1-26 provides 2 the taxpayer with a method to force action and obtain a timely final resolution of the 3 claim). If the statute of limitations had not yet run, Protestants may have also been 4 able to file another appli cation for refund, but it was too late to refile once the 210 5 days had expired. See Kilmer , 2004-NMCA-122, ¶ 15 (stating that, when the 6 Department fails to act within 120 days, “the onus [is] on [the t]axpayers . . . to either 7 file a protest or an action in district court,” and if the taxpayers do neither, as in that 8 case, it may be too late to refile). 9 {10} As this Court explained in Kilmer , 10 [t]he purpose of the time deadline in Section 7-1-26 is to avoid stale 11 claims, which protects the Department ’s ability to stabilize and predict, 12 with some degree of certainty, the funds it collects and manages. The 13 time deadline places the burden of maintaining an active claim on the 14 taxpayer and makes it the taxpayer’s responsibilityto confront the 15 Department inaction. The [L]egislature has apparently allocated that 16 responsibility to the taxpayer becauseit is the taxpayer who can more 17 easily keep track of the status of a refund claim. 18 Id. ¶ 16 (emphasis added). We rejectedthe argument of the taxpayers in Kilmer that 19 the 90-day deadline is counted from when th e Department denies the claim for refund, 20 stating that such interpretation is contraryto the plain language of the statute and 21 legislative intent. Id. ¶¶ 17–20; see also id. ¶ 21 (providing an alternative explanation 22 as to why such interpretation is untenable). We additionally heldthat the Department 239 has no implied authority to allow clai ms after 210 days, explaining that “an 1 administrative agency may not exercise authority beyond the powers that have been 2 granted[.]” Id. ¶ 24. In the present case, the Department likewise had no authority to 3 allow Protestants’ claim after the expiration of the 210 days. See id. 4 {11} We nonetheless consider Prote stants’ estoppel argument. Kilmer makes clear 5 that “[e]stoppel will not be applied against a state governmental entity unless there is 6 a shocking degree of aggravated and overreaching conduct or where right and justice 7 demand it.” Id . ¶ 26 (internal quotation marks and citation omitted). Indeed, “[i]n 8 cases involving assessment and collection of taxes, the state will be held estopped 9 only rarely [and e]stoppel cannot lie against the state when the act sought would be 10 contrary to the requirements expressed by statute .” Id. (emphasis added) (internal 11 quotation marks and citation omitted). Moreover, we have not been inclined to grant 12 estoppel when the party relies on oralrepresentations of the agency. See id. ¶ 28. 13 {12} In Kilmer , we held that oral statements typi cally do not provide a basis to apply 14 estoppel against an agency and that a letter from the Department correctly explaining 15 that the denial of the application was base d on the fact that the statute of limitations 16 had expired and allowing th e taxpayers to protest does not provide a basis for 17 estoppel. See id. ¶¶ 42, 43; see also id. ¶¶ 28–41 (further discussion). In the present 18 case, there is evidence that Protestants ’ accountant may have followed up with the 1910 Department over the phone about the refund clai m prior to the expiration of the statute 1 of limitations and prior to Protestants’ filing their 2013 application for refund. [ See 2 RP 4 (¶ 25), 8] We agree with the hearing o fficer that “none of these statements arise 3 to a promise or suggestion that the Department would approve the specific claim for 4 refund[.]” [RP 10] Thus, like the taxpayers in Kilmer , such statements do not give rise 5 to estoppel. See id. ¶¶ 39–40. Additionally, the Department’s letter to Protestants 6 indicating that the denial of the 2009 refund was based on the expiration of the statute 7 of limitations does not provide a ba sis for estoppel because, like in Kilmer , the 8 Department correctly explained the ba sis for the denial at that time. 9 {13} We additionally note that, also similar to the taxpayers in Kilmer , Protestants 10 were represented by an accountant. See id. ¶ 41. Although Protestants claim that they 11 were ignorant regarding the 210-day deadline, the fact that they were represented by 12 an accountant mitigates such purported ignorance. As we explained in Kilmer , the fact 13 that the accountant was “a professional, cap able of performing her own research” who 14 was “able to find Section 7- 1-26 and consider that Department inaction for 120 days 15 might require her to respond to the Department’s inaction,” meant that the taxpayers 16 could not rely on estoppel against the Department. See id. We explained that, in 17 balancing the equities require d under the doctrine of est oppel, it was not reasonable 18 for the accountant to assume that she woul d not need to do anything further except 1911 wait for the claim to be denied. See id. 1 {14} Accordingly, we hold that the Department was not permitted under statute to 2 allow the refund after the expiration of th e 210-day time frame had expired, and the 3 limited oral statements made by the Department, prior to the Protestants’ 2013 filing, 4 do not provide a basis for est oppel. Additionally, we hold th at the Department’s letter 5 of denial, which identified the statute of limitations as the basis for its denial, does not 6 provide a basis for estoppel, particularly in light of Protestants’ representation in the 7 matter by an accountant. Moreover, as in Kilmer , estoppel simply “cannot lie against 8 the state when the act sought would be c ontrary to the requi rements expressed by 9 statute.” Id. ¶ 26 10 {15} Due Process: Protestants additionally argue in their memorandum in opposition 11 that the introduction of the 210-day deadline argument was a denial of their due 12 process rights and the New Mexico Taxpayer Bill of Rights because the taxpayer is 13 entitled to an explanation of the basis for denials of refunds. [MIO 4–5] Protestants 14 contend that the introduction of certain exhibits, coupled with the introduction of the 15 210-day deadline argument, violated their due process rights. [MIO 5] “We review the 16 constitutional claim of denialof due process de novo.” State ex rel., Children, Youth 17 & Families Dep’t v. Pamela R.D.G. , 2006-NMSC-019, ¶ 10, 139 N.M. 459, 134 P.3d 18 746. 1912 {16} The Taxpayer Bill of Rights states, inter alia , that taxpayers have “the right to 1 be provided with an explanation of the . . . basis for . . . denials of refunds[.]” NMSA 2 1978, § 7-1-4.2(F) (2003). Similarly, 3 [d]ue process requires timely notice reasonably calculated to inform the 4 person concerning the subject and issues involved in the proceeding; a 5 reasonable opportunity to refute or defend against a charge or accusation; 6 a reasonable opportunity to confront and cross-examine adverse 7 witnesses and present eviden ce on the charge or accusation; 8 representation by counsel, when such representation is required by 9 constitution or statute; and a hearing before an impartial decisionmaker. 10 In re Pamela R.D.G. , 2006-NMSC-019, ¶ 12 (internal quotation marks and citation 11 omitted). Protestants allege th eir due process rights were violated because they were 12 not provided timely notice of the subject and issues involved in the proceeding. [ See 13 MIO 5–6] 14 {17} We briefly address the exhibits first. According to the decision and order, 15 Protestants sought to exclude the Department’s exhibits of Protestants’ 2008, 2010, 16 and 2011 returns because the Department did not provide copies of such exhibits to 17 Protestants prior to the hearing. [RP 13] As the hearing officer explained, however, 18 the exhibits are Protestants own tax returns in the years surrounding the claimed 19 refund, which Protestants prepared, perh aps through an accountant, and of which 20 Protestants presumably possessed copies. [Id.] Moreover, the introduction of such 21 exhibits was not prejudicial to Protestants in light of the fact that they were only 2213 admitted to support the Department’s contention regarding why it did not act on the 1 2009 claim for refund. As Protestants have provided no explanation in their 2 memorandum in opposition as to why the admission of Protestants’ own tax refunds 3 was actually prejudicial, we find no error. See State v. Jose S. , 2007-NMCA-146, ¶ 20, 4 142 N.M. 829, 171 P.3d 768 (“In the absence of prejudice, there is no reversible 5 error.” (internal quotation marks and citation omitted)). 6 {18} We therefore turn to Protestants’ argument that the introduction of the 210-day 7 deadline argument at the hearing constitutes a violation of their due process. 8 Protestants contend that the second factor in the balancing test from Mathews v. 9 Eldridge , 424 U.S. 319 (1976), is relevant. [MIO 6] “We weigh three factors under 10 the Mathewstest: (1) the [taxpayer’s] interest, (2 ) the risk to the [taxpayer] of an 11 erroneous deprivation in light of the probable value of additional or substitute 12 procedures as safeguards, and (3) the government’s interest.” State ex rel Children, 13 Youth & Families Dep’t v. Steve C. , 2012-NMCA-045, ¶ 13, 277 P.3d 484. We 14 therefore consider the risk to Protestants of an erroneous deprivation in light of the 15 probable value of additional or s ubstitute procedures as safeguard. See id. 16 {19} As acknowledged by Protestants, they were initially informed that the denial 17 of their 2009 tax refund was based on the untimeliness of their claim pursuant to 18 Section 7-1-26. [ See DS 6-7; see also RP 14] As indicated above, Section 7-1-26 1914 includes both the statute of limitations for such claims and the statutory provision that, 1 upon the Department’s inaction on a claim fo r refund, if the taxpayer chooses not to 2 refile a refund or if the time limits withinwhich to do so haveexpired, a taxpayer 3 may, within ninety days , choose to protest the inaction or file a civil action. See§ 7-1- 4 26(B)(2), (D). As such, the risk of deprivation to Protestants was relatively small 5 based on the Department’s purported failure to reference the 210-day deadline 6 because, not only did our Legislature allo cate the responsibility of maintaining an 7 active claim on the taxpayer, see Kilmer , 2004-NMCA-122, ¶ 16, and not only is 8 “ignorance of the law . . . no excuse” and “[e]very person is presumed to know the 9 law,” see State v. Tower , 2002-NMCA-109, ¶ 9, 133 N.M. 32, 59 P.3d 1264, 10 overruled on other grounds by State v. Archuleta , 2015-NMCA-037, 346 P.3d 390, 11 but Protestants were specifically directed to the statute that contains the relevant 12 information. Moreover, as discussed above, Section 7-1-26 provides the Department 13 with no authority to allow Protestants’ clai m after the expiration of the 210 days. See 14 Kilmer , 2004-NMCA-122, ¶ 24. As Protestants were directed to Section 7-1-26, we 15 are unpersuaded that the Department’s letter violated Protestants’ right to due process. 16 {20} We additionally note that Protestants argue throughout their memorandum in 17 opposition that, had they been given specifi c notice of the 210-day deadline argument 18 prior to the protest hearing, they would haveretained legal counsel to dispute the issue 1915 and argue that the deadline di d not apply in their case. [ See, e.g. , MIO 7] However, 1 as discussed at length above, the Departme nt had no express or implied authority to 2 allow Protestants’ claim after the expirati on of the 210 days and estoppel “cannot lie 3 against the state when the act sought would be contrary to the requirements expressed 4 by statute.” Kilmer , 2004-NMCA-122, ¶¶ 24, 26. As such, we are unpersuaded that 5 Protestants would have been able to effec tively argue against the applicability of the 6 210-day deadline and, accordingly, “the probable value of additional or substitute 7 procedures as safeguard” are de minimus. See Steve C. , 2012-NMCA-045, ¶ 13. We 8 therefore hold that Protestants were not de nied their right to due process when the 9 Department raised the 210-day statutory deadline at the protest hearing. 10 {21} Accordingly, for the reasons stated in our notice of proposed disposition and 11 herein, we affirm. 12 {22} IT IS SO ORDERED. 13

_________________________________ 14 MICHAEL E. VIGIL, Chief Judge 1516 WE CONCUR: 1

___________________________ 2 JONATHAN B. SUTIN, Judge 3

___________________________ 4 STEPHEN G. FRENCH, Judge 5