2023 New Mexico Statutes › Chapter 3 - Municipalities › Article 18 - Powers of Municipalities › Section 3-18-2 - Prohibition on municipal taxing power.

Unless otherwise provided by law, no municipality may impose:
A. an income tax;
B. a tax on property measured on an ad valorem, per unit or other basis; or
C. any excise tax including but not limited to:
(1) sales taxes;
(2) gross receipts; and
(3) excise taxes on any incident relating to:
(a) tobacco;
(b) liquor;
(c) motor fuels; and
(d) motor vehicles.
D. However, any municipality may impose excise taxes of the sales, gross receipts or any other type on specific products and services, other than those enumerated in Paragraph (3) of Subsection C of this section, if the products and services taxed are each named specifically in the ordinance imposing the tax on them and if the ordinance is approved by a majority vote in the municipality.
E. Subsections C and D of this section shall not be construed to apply to or otherwise affect any occupation tax imposed prior to or after the effective date of this act under Sections 3-38-1 through 3-38-12 NMSA 1978 [3-38-1 to 3-38-6 NMSA 1978], as those sections may be amended from time to time; provided, the provisions of this subsection shall not apply to the sale of motor vehicles.
History:
1953 Comp., § 72-4-1.1, enacted by Laws 1972, ch. 26, § 1; recompiled as 1953 Comp., § 14-17-1.1, by Laws 1973, ch. 258, § 154; 1980, ch. 101, § 1.
ANNOTATIONS
Bracketed material.
— The reference to 3-38-1 to 3-38-12 NMSA 1978 in Subsection E seems incorrect, as 3-38-7 to 3-38-12 were either repealed or recompiled in 1981. Sections 3-38-1 to 3-38-6 NMSA 1978 presently deal with municipal licenses and taxes. The bracketed material was inserted by the compiler and is not a part of the law.
Cross references.
— For Municipal Local Option Gross Receipts Tax Act,
see
Chapter 7, Article 19D NMSA 1978.
This section is an example of specific denial of power,
whereby, unless otherwise provided by law, municipalities are prohibited from imposing an income tax or an ad valorem property tax, and then, with some exceptions, are authorized to levy certain excise taxes if the ordinance imposing such a tax is approved by the majority vote in the municipality.
Apodaca v. Wilson
, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Occupation tax deemed excise tax.
— There is no question but that an occupation tax imposed under 3-38-3 NMSA 1978 is an excise tax as that term is used in this section.
City of Alamogordo v. Walker Motor Co
., 1980-NMSC-038, 94 N.M. 690, 616 P.2d 403.
No occupation tax on motor vehicle sales.
— Municipal occupation taxes may not be imposed under 3-38-3 NMSA 1978 on any incident relating to motor vehicle sales.
City of Alamogordo v. Walker Motor Co
., 1980-NMSC-038, 94 N.M. 690, 616 P.2d 403.
A home rule municipality is prohibited from imposing any tax absent specific legislative authorization.
— The Municipal Charter Act, 3-15-1 to 3-15-16 NMSA 1978, prohibits a home rule municipality from imposing any tax absent specific legislative authorization, and 3-18-2 NMSA 1978, precludes a municipality, including a home rule municipality, from imposing income and property taxes unless otherwise provided by law and allows excise taxes on certain products and services if the products or services subject to the tax are named specifically in the ordinance imposing the tax and the ordinance is approved by a majority of the voters in the municipality, and therefore a home rule municipality that is considering the imposition of a tax on items such as telecommunications services, styrofoam use, plastic bottle use, carbon emissions, and plastic bag use, may impose such taxes if those products or services are named specifically in the ordinance imposing the tax and the ordinance is approved by a majority of the voters in the home rule municipality.
Limits on Taxes Imposed by Home Rule Municipalities
(3/20/15), Att'y Gen. Adv. Ltr. 2015-03.
Municipality's authority to impose technology infrastructure fee.
— The New Mexico legislature has specifically authorized municipalities to impose "excise taxes of the sales, gross receipts or any other type on specific products and services" other than tobacco, liquor, motor fuels, and motor vehicles, if the products and services taxed are each named specifically in the ordinance imposing the tax on them and if the ordinance is approved by a majority vote in the municipality, and therefore the village of Los Lunas has the authority to impose a "technology infrastructure fee" that would be collected from all utility customers on a monthly basis to help fund a public wireless internet system and other technology related projects, so long as the products and services taxed are each named specifically in the authorizing ordinance and if the ordinance is approved by a majority vote in the municipality .
Municipality's Authority to Impose a Technology Infrastructure Fee
(4/10/15), Att'y Gen. Adv. Ltr. 2015-04.
Local initiative petition altering state tax scheme.
— Home rule municipalities do not have the power through initiative petition to alter the tax scheme mandated by the state constitution and statutes. 1990 Op. Att'y Gen. No. 90-20.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Liquor sale, state regulation of, as affecting municipal power to impose tax for revenue, 6 A.L.R.2d 737.
Commuter tax: validity of municipal ordinance imposing income tax or license upon nonresidents employed in taxing jurisdiction, 48 A.L.R.3d 343.
College football games or other college sponsored public events, validity of municipal admission tax for, 60 A.L.R.3d 1027.
Sales or use tax upon containers or packaging materials purchased by manufacturer or processor for use with goods he distributes, 4 A.L.R.4th 581.
Tax on hotel-motel room occupancy, 58 A.L.R.4th 274.