Were Del Corazon Hospice's Medicaid receipts for nursing-home room and board excluded from gross receipts as amounts received solely for disclosed principals?

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Plain-English summary

Del Corazon Hospice's Medicaid room-and-board receipts were taxable gross receipts, not amounts received solely for nursing homes in a disclosed agency capacity. Del Corazon incurred and paid its own contractual obligations to the facilities, then received reimbursement from Medicaid in its own name and account.

The consolidated caption covered David S. Rodriguez / Del Corazon Hospice and Del Corazon Hospice LLC.

The Department assessed:

• $219,420.85 gross receipts tax, $45,080.63 penalty, and $18,242.43 interest for June 2011 through February 2016; and
• $503.10 workers' compensation fees, $100.62 penalty, and $32.97 interest for March 2011 through December 2015.

As of March 29, 2018, the gross-receipts liability was $290,967.68, consisting of the original $282,743.91 assessment plus $8,223.77 of additional accrued interest.

Del Corazon's Medicaid payment flow

Del Corazon provided hospice care in patients' homes and nursing facilities. Approximately 95% of its services were under the Medicare hospice benefit and about 5% involved Medicaid.

For institutional Medicaid patients, the nursing home billed Del Corazon for room and board. Del Corazon then submitted its own detailed invoice electronically to a Medicaid managed-care organization, which paid Del Corazon directly.

Del Corazon owed the nursing home the full Medicaid room-and-board rate within the contractual payment period. Medicaid reimbursed Del Corazon at 95% of that rate.

The timing could require Del Corazon to advance its own money. In the record's example, it paid the nursing home $4,416.42 on February 27, 2018 and later received $4,109.83 from Medicaid on March 16.

The receipts reimbursed Del Corazon's own expenditure

Regulation 3.2.1.19(C)(1) NMAC treated reimbursement of a person's own expenses as gross receipts unless the person incurred the expense as a disclosed agent for another.

Del Corazon's contracts made it—not Medicaid—responsible for timely payment to the nursing homes. The Medicaid invoices were visibly submitted in Del Corazon's name, payment was deposited directly into its account, and the evidence did not show the funds were segregated as property of a principal.

The AHO therefore treated Medicaid's payment as reimbursement for Del Corazon satisfying its own contractual obligation.

The contracts did not establish a disclosed agency

The 2011 nursing-home contracts expressly described the parties as independent contractors and disclaimed agency and third-party-beneficiary rights.

The 2012 contracts added language calling Del Corazon a limited agent for Medicaid billing. But Del Corazon already had regulatory authority to submit the claims, its billing practices did not change, and the new language did not give it authority to bind a nursing home to obligations with Medicaid or other third parties.

Agency treatment also required actual disclosure to the third party. Del Corazon had not informed Medicaid by contract that Medicaid could proceed against a nursing home to enforce an obligation created by Del Corazon.

The labels in the later contracts could not substitute for actual authority, control, third-party enforceability, and disclosed conduct.

Other theories did not reduce the assessment

Del Corazon mentioned deductions under Sections 7-9-77.1 and 7-9-93 in pleadings but presented no evidence or argument supporting them. The AHO treated those claims as waived or withdrawn.

It also did not establish equitable recoupment. Rodriguez believed the nursing homes should have paid gross receipts tax, but the testimony was speculative, and Del Corazon did not prove a single taxable event, inconsistent tax theories, and strict identity of interest.

The workers' compensation assessment appeared in the consolidated caption, but the protest, evidence, and argument did not address it. The record also lacked information showing the present outstanding amount under that letter. To the extent Del Corazon intended to protest it, the challenge failed for lack of proof.

No evidence or argument rebutted civil negligence penalty. Interest was mandatory and continued until the tax principal was paid.

Result: protest DENIED. The gross receipts tax, penalty, and interest remained, and the separate workers' compensation assessment was not overcome.

Text note: The final paragraph associates the $290,967.68 figure with Letter ID L0849274160, but detailed Finding 56 attributes that amount to gross-receipts Letter ID L1216767280 and Finding 57 says the current L0849274160 workers' compensation balance was not established. This summary follows the detailed findings and the exhibit citation.

What this means for you

Health-care providers receiving pass-through payments

Trace who owes the underlying vendor, whose name appears on the payer invoice, who receives the funds, whether funds are segregated, and whether the payer can enforce obligations against the alleged principal.

Businesses relying on contract agency language

An “agent” label may not control. Actual authority, principal control, third-party disclosure, enforceable rights, and the parties' real payment practices matter.

Providers advancing costs before reimbursement

Paying an obligation from your own funds before receiving reimbursement is strong evidence that the later receipt covers your own expenditure rather than money held solely for another.

Taxpayers raising alternative deductions or recoupment

Develop each theory with evidence and argument. Mentioning a deduction in pleadings or speculating that another party paid tax will not overcome an assessment.

Common questions

Q: Why did Del Corazon receive nursing-home room-and-board money?
A: New Mexico's Medicaid pass-through structure required the hospice to bill Medicaid and then pay the nursing home.

Q: Did Del Corazon receive the full amount it owed the nursing home?
A: No. Medicaid paid 95% of the rate, while Del Corazon's contracts required payment of the full Medicaid rate.

Q: Why was the reimbursement taxable?
A: Del Corazon incurred its own contractual expense and received payment on its own account; it did not establish the disclosed agency required for exclusion.

Q: Did the 2012 “agent” clause change the result?
A: No. It did not change the payment practices or give Del Corazon authority to bind the nursing homes to third-party obligations.

Q: Was the alleged agency disclosed to Medicaid?
A: No actual contractual disclosure gave Medicaid a right to proceed against the nursing homes.

Q: Could equitable recoupment apply because nursing homes may have paid tax?
A: Not on this record. Del Corazon offered no supported proof of the required elements.

Q: What was the gross-receipts balance as of March 29, 2018?
A: $290,967.68, including accrued interest through that date.

Citations and references

Statutes and regulations:

• NMSA 1978, §§ 7-9-3.3, 7-9-3.5(A)(3)(f), 7-9-4, and 7-9-5 — engaging in business, gross receipts, tax, and presumption of taxability
• NMSA 1978, §§ 7-9-77.1 and 7-9-93 — deductions raised but not pursued
• NMSA 1978, §§ 7-1-3(X) and 7-1-17(C) — tax definition and assessment presumption
• NMSA 1978, §§ 7-1-67 and 7-1-69 — interest and civil negligence penalty
• NMSA 1978, § 7-1-28(F) — equitable recoupment
• NMSA 1978, § 52-5-19 — Workers' Compensation Act assessment
• Regulation 3.2.1.19(C)(1) NMAC — reimbursed expenditures and disclosed agency
• Regulation 8.325.4.18 NMAC — Medicaid room-and-board reimbursement

Cases cited:

• MPC Ltd. v. New Mexico Taxation & Revenue Department, 2003-NMCA-021 — reimbursed expenses and disclosed-agent requirements
• Maes v. Audubon Indemnity Insurance Group, 2007-NMSC-046 — common-law agency
• Chevron Oil Co. v. Sutton, 1973-NMSC-111 — relationship labels are not controlling
• Teco Investments, Inc. v. Taxation & Revenue Department, 1998-NMCA-055 — equitable-recoupment elements

Source

• Listing: New Mexico Decisions & Orders
• Decision post: Del Corazon Hospice LLC
• Decision PDF: D&O 18-15

Original ruling text

STATE OF NEW MEXICO
ADMINISTRATIVE HEARINGS OFFICE
TAX ADMINISTRATION ACT

IN THE MATTER OF THE PROTEST OF
DAVID S RODRIGUEZ
DEL CORAZON HOSPICE
TO ASSESSMENT ISSUED UNDER
LETTER ID NO. L1216767280

and

IN THE MATTER OF THE PROTEST OF
DEL CORAZON HOSPICE LLC
TO ASSESSMENT ISSUED UNDER
LETTER ID NO. L0849274160

v. No. 18-15

NEW MEXICO TAXATION AND REVENUE DEPARTMENT

DECISION AND ORDER

A protest hearing occurred in the above-captioned and consolidated protests on March

29, 2018 before Chris Romero, Esq., Hearing Officer, in Santa Fe, New Mexico. At the hearing,

Mr. Wade Jackson, Esq. (Sutin, Thayer and Browne, P.C.), appeared representing Del Corazon

Hospice, L.L.C. (“Taxpayer”). Mr. David S. Rodriguez, president and executive director of

Taxpayer, appeared and testified. Staff Attorney, Mr. David Mittle, Esq., appeared representing

the State of New Mexico Taxation and Revenue Department (“Department”). Protest Auditor,

Ms. Amanda Carlisle, appeared as a witness for the Department. Taxpayer Exhibits 2, 3, 4, 8, 9,

10, 11, 12, 13, and 14 were admitted into the record. Department Exhibit A, reflecting the

Taxpayer’s purported outstanding liability as of March 29, 2018, was filed with the permission

of the Hearing Officer after conclusion of the hearing. Department Exhibit B, which reflected a

correction to Department Exhibit A, was filed on April 5, 2018. All exhibits are more thoroughly
described in the Administrative Exhibit Coversheet. Taxpayer also requested an opportunity to

submit proposed findings of fact and conclusions of law. The parties agreed that proposed

findings of fact and conclusions of law were due on or before April 13, 2018. Based on the

evidence and arguments presented, IT IS DECIDED AND ORDERED AS FOLLOWS:

FINDINGS OF FACT

1. On April 21, 2017, the Department assessed Taxpayer the amounts of $503.10 in

workers’ compensation fees, $100.62 in penalty, and $32.97 in interest for a total sum of $636.69

for the periods from March 31, 2011 through December 31, 2015 under Letter ID No.

L0849274160. [See Administrative File].

2. On April 21, 2017, the Department assessed Taxpayer the amounts of

$219,420.85 in gross receipts tax, $45,080.63 in penalty, and $18,242.43 in interest for a total tax

assessment of $282,743.91 for the CRS reporting periods from June 30, 2011 through February

29, 2016 under Letter ID No. L1216767280. [See Administrative File].

3. On July 25, 2017, Taxpayer submitted its formal protest of the assessments. [See

Administrative File].

4. On August 11, 2017, the Department acknowledged receipt of Taxpayer’s formal

protest under Letter ID No. L2012081456. [See Administrative File].

5. On September 25, 2017, the Department requested a scheduling hearing in this

matter with the Administrative Hearings Office. [See Administrative File].

6. On September 27, 2017, the Administrative Hearings Office entered a Notice of

Telephonic Scheduling Conference setting this matter for a hearing on October 13, 2017. [See

Administrative File].

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 2 of 26

7. On October 10, 2017, Taxpayer’s counsel of record entered its appearance. [See

Administrative File].

8. On October 13, 2017, a telephonic scheduling hearing occurred in which the

parties agreed on a date to conduct a hearing on the merits of Taxpayer’s protest as well as all

other associated deadlines. The scheduling hearing was within 90 days of the protest and neither

party objected that the hearing should satisfy the 90-day hearing requirement provided by NMSA

1978, Section 7-1B-8 (A). [See Record of Scheduling Hearing (10/13/2017)].

9. On October 17, 2017, the Administrative Hearings Office entered a Scheduling

Order and Notice of Administrative Hearing formalizing the agreed upon date for a hearing on

the merits of Taxpayer’s protest and associated deadlines. [See Administrative File].

10. On November 2, 2017, Taxpayer filed a Certificate of Service of Taxpayer’s First

Set of Interrogatories. [See Administrative File].

11. On November 2, 2017, Taxpayer filed a Certificate of Service of Taxpayer’s First

Set of Requests for Production. [See Administrative File].

12. On November 30, 2017, the Department filed a Certificate of Service indicating

that it served its Response to Taxpayer’s First Set of Interrogatories and First Set of Requests for

Production on Taxpayer’s counsel of record. [See Administrative File].

13. On February 27, 2018, Taxpayer filed its Motion for Summary Judgment. [See

Administrative File].

14. On March 13, 2018, the Department filed Department’s Response to Motion for

Summary Judgment. [See Administrative File].

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 3 of 26

15. On March 13, 2018, Taxpayer filed Taxpayer’s Motion to Convert Hearing on the

Merits into Summary Judgment Hearing and to Hold Hearing on the Merits in Abeyance. [See

Administrative File].

16. On March 14, 2018, Taxpayer and the Department filed their Joint Prehearing

Statement. [See Administrative File].

17. On March 20, 2018, the Department filed the Department’s Response to

Taxpayers Motion to Convert Hearing on the Merits Into Summary Judgment Hearing and to

Hold Hearing on the Merits in Abeyance. [See Administrative File].

18. On March 23, 2018, the Administrative Hearings Office entered an Order

Denying Motion for Summary Judgment which in addition to denying Taxpayer’s request for

summary judgment, also denied Taxpayer’s requests that the hearing on the merits of the protest

be converted to a hearing on Taxpayer’s Motion for Summary Judgment and to hold merits of

protest in abeyance. [See Administrative File].

19. David Rodriquez is the founder, president, and executive director of Taxpayer.

[Testimony of Mr. Rodriguez].

20. In that capacity, Mr. Rodriguez oversees all of Taxpayer’s operations. [Testimony

of Mr. Rodriguez].

21. Prior to establishment Taxpayer, Mr. Rodriguez acquired, through previous

employment, significant experience in the operation of hospice-care organizations. [Testimony

of Mr. Rodriguez].

22. Mr. Rodriquez is also a licensed nurse with 40 years’ experience and has been

licensed as a nursing home administrator for 33 years. Mr. Rodriguez was also previously

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 4 of 26
employed by the department of health of the State of New Mexico where he served as director of

its division of health improvement. [Testimony of Mr. Rodriguez].

23. Taxpayer is a licensed provider of hospice care services authorized by federal

authorities to provide services to Medicare and Medicaid patients. [Testimony of Mr.

Rodriguez].

24. Taxpayer provides hospice care service in Santa Fe and Espanola, New Mexico.

[See Taxpayer Exs. 8 – 13; Testimony of Mr. Rodriguez].

25. Taxpayer does not provide room and board for patients its serves nor does it

operate nursing home facilities. Rather, Taxpayer provides hospice care services in the location

where the patient resides, including nursing home facilities. [Testimony of Mr. Rodriguez].

26. Taxpayer began providing hospice care services in January of 2012 at three

nursing home facilities in Santa Fe and Espanola, New Mexico. [Testimony of Mr. Rodriguez].

27. Although Taxpayer commenced operations in January of 2012, it was prohibited

from billing for its services until it satisfied the requirements for Medicare and Medicaid

certification. [Testimony of Mr. Rodriguez].

28. Taxpayer obtained its Medicare certification in January of 2013 at which time it

was permitted to bill retroactively to June 20, 2012. [Testimony of Mr. Rodriguez].

29. After receiving Medicare certification, Taxpayer applied for and received its

Medicaid certification which was granted on or about March 6, 2013. Taxpayer was then

permitted to bill Medicaid services retroactively to approximately March 20, 2012. [Testimony

of Mr. Rodriguez].

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 5 of 26

30. Consequently, Taxpayer did not bill for Medicaid services performed prior to

March 20, 2012, nor did it bill for Medicare services performed prior to June 20, 2012.

[Testimony of Mr. Rodriguez].

31. There are two components through which Taxpayer provides hospice care

services. The first arises through the direct-hospice benefit in which patients receive services.

The second scenario arises from provision of the same services, but to a Medicaid recipient

receiving institutional Medicaid living in a nursing home whose room and board is provided by

the state. [Testimony of Mr. Rodriguez].

32. The majority of services, or approximately 95 percent, are provided by Taxpayer

under the Medicare hospice benefit which provides compensation directly to Taxpayer at a per

diem rate intended to compensate it for all care and services regardless of where the patient

resides, such as in a nursing facility or in their own homes. [Testimony of Mr. Rodriguez].

33. The minority of services, or approximately 5 percent, are provided by Taxpayer

through Medicaid for individuals residing in their homes or other non-institutional settings;

under commercial contracts with insurance companies; or pro bono. [Testimony of Mr.

Rodriguez].

34. Because New Mexico is classified as a pass-through state, Taxpayer bills

Medicaid for all services performed on behalf of its patients, including room and board services

provided and performed by the nursing home facilities in which the patients reside, as required

by the regulations of the Centers for Medicare and Medicaid Services (hereinafter “CMS”).

[Testimony of Mr. Rodriguez].

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 6 of 26

35. CMS coordinates services through its fiscal intermediary. Palmetto GBA serves

as the fiscal intermediary for Medicare services under the Medicare hospice benefit. [Testimony

of Mr. Rodriguez].

36. Medicaid utilizes four intermediaries, or medical care organizations in New

Mexico: (1) United Health Care; (2) Molina Healthcare; (3) Presbyterian Healthcare Services;

and (4) Blue Cross and Blue Shield of New Mexico. [Testimony of Mr. Rodriguez].

37. For services provided under Medicaid, Taxpayer bills specifically for hospice

service for patients that may not be eligible for Medicare benefit but may qualify for Medicaid

hospice services regardless of where they reside, whether in their homes or within an

institutional setting. [Testimony of Mr. Rodriguez].

38. By virtue of regulatory framework, Taxpayer is primarily liable for payment to

the nursing home facilities for their room and board services. [Testimony of Mr. Rodriguez; See

Taxpayer Exs. 8 – 14].

39. Standard practice provides that the nursing home facility will bill Taxpayer for the

patient’s room and board within the facility. The bill contains the patient’s personal identifying

information, insurance information, the dates of service, the number of days within the dates of

service, the nursing home’s daily rate, the total amount due, as well as the patient’s share of the

total amount due. The amount billed to the Taxpayer is the difference between the total amount

due and the amount of the patient’s share. [See Taxpayer Ex. 14.1; Testimony of Mr. Rodriguez].

40. Taxpayer thereafter relies on the billing from the nursing home facility to prepare

a detailed invoice to be submitted to the medical care organization. The invoice consists of

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 7 of 26
detailed room and board information for each day of the billing period for which payment is due

for the patient’s room and board. [See Taxpayer Ex. 14.2 – 14.3 1; Testimony of Mr. Rodriguez].

41. The bill from Taxpayer is transmitted electronically to the medical care

organization. The medical care organization thereafter issues payment to Taxpayer. [See

Taxpayer Ex. 14.4; Testimony of Mr. Rodriguez].

42. Hospice care services and room and board charges to Medicare and Medicaid are

separately submitted. [Testimony of Mr. Rodriguez].

43. The managed care organization is thereafter entitled to a five percent (5%)

discount which it implements in the form of payment to Taxpayer in the amount of 95 percent of

the amount actually billed. [Testimony of Mr. Rodriguez].

44. Although Taxpayer receives payment for 95 percent of the charges actually billed

for a patient’s room and board, it is nevertheless contractually obligated to pay the full amount

billed by the nursing home facility. [See Taxpayer Ex. 14.5; Testimony of Mr. Rodriguez].

45. Taxpayer is obligated to pay the nursing home facility for patient room and board

within 30 days of receiving the nursing home facility’s bill. [Testimony of Mr. Rodriguez; See

Taxpayer Exs. 8 – 13].

46. Initial contracts between Taxpayer and the nursing home facilities in which it

provided hospice care services expressly disclaimed any agency relationship between the nursing

home facility and Taxpayer. Those contracts were each effective on November 1, 2011. [See

Taxpayer Ex. 8.24; 9.24; 10.24 (Sections 17.12); Testimony of Mr. Rodriguez].

1
Mr. Rodriguez indicated that there had been an inadvertent failure to fully redact patient-identifying information
appearing in the header of Taxpayer Exhibit 14.2 – 14.3. Finding that the identity of the patient subject of Taxpayer
Exhibit 14.2 – 14.3 is not relevant to the issues in this protest, the Hearing Officer redacted the patient’s name. The
Department did not object.

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 8 of 26

47. Subsequent contracts between Taxpayer and the nursing home facilities in which

it provided hospice care services were amended effective November 1, 2012. The amended

contracts still disclaimed any general agency relationship, but created a limited exception

purporting to permit Taxpayer to serve as agent on behalf of the nursing home facilities for

billing room and board to Medicaid. [See Taxpayer Ex. 11.14 – 11.15; 12.14 – 12.15; 13.14 –

13.15 (Sections 7.4; 9.1; 9.6; 15.3); Testimony of Mr. Rodriguez].

48. Despite the differences between contracts executed in 2011 and 2012, billing and

payment protocols utilized by Taxpayer did not change. [Testimony of Mr. Rodriguez].

49. Taxpayer has not had, nor does it presently have the authority to bind any nursing

homes in a contract with any third party, including any medical care organization through which

it bills or receives payment for room and board, nor does it have authority to bind a medical care

organization in contract with any nursing homes. [Testimony of Mr. Rodriguez].

50. None of the relevant agreements between the nursing home facilities and

Taxpayer are required to be submitted to Medicaid or Medicare, nor have they actually been

submitted. [Testimony of Mr. Rodriguez].

51. If any of the relevant contracts actually created a genuine agency relationship, the

relationship has not actually been disclosed to the medical care organizations. [Testimony of Ms.

Carlisle; Testimony of Mr. Rodriguez].

52. The Department perceives Taxpayer’s payment to the nursing home facilities as a

Taxpayer expenditure and the payment from the medical care organization as a reimbursement of

that expenditure. [Testimony of Ms. Carlisle].

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 9 of 26

53. Taxpayer is contractually obligated to make timely payment for room and board

services regardless of the amount of time elapsing between its billing to the managed care

organization and receiving payment. [Testimony of Mr. Rodriguez].

54. Mr. Rodriguez has not been assessed in his personal capacity. His name is

included on the assessment only for purposes of mailing. [Testimony of Ms. Carlisle].

55. Taxpayer speculated that the nursing homes paid gross receipts taxes on payments

received for room and board. [Testimony of Mr. Rodriguez]. Due to significant statutory

prohibitions on the Department’s ability to disclose confidential taxpayer information, the

Department was unable to confirm or deny such speculation. [Testimony of Ms. Carlisle].

56. Taxpayer’s outstanding liability as of March 29, 2018 was $290,967.68 reflecting

the sum of $219,420.85 in gross receipts tax, $45,080.63 in penalty, $18,242.43 in interest for a

total balance of $282,743.91 plus interest accruing through March 29, 2018 in the amount of

$8,223.77. [See Letter ID No. L1216767280; Dept. Ex. B].

57. The record lacks information to establish the present outstanding liability, if any,

under Letter ID No. L0849274160.

DISCUSSION

The principal issue in this protest is whether Taxpayer’s receipts from Medicaid, for the

room and board of its patients residing in nursing home facilities, are excluded from gross

receipts under the Gross Receipts and Compensating Tax Act as “amounts received solely on

behalf of another in a disclosed agency capacity[.]” See NMSA 1978, Section 7-9-3.5 (A) (3) (f).

Although Taxpayer indicated in various pleadings that it intended to assert entitlement to

deductions under NMSA 1978, Section 7-9-93 and NMSA 1978, Section 7-9-77.1, Taxpayer did

not present evidence or argument in support of either deduction, nor did Taxpayer address either

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 10 of 26
deduction in Del Corazon Hospice, LLC’s Proposed Findings of Fact and Conclusion of Law.

For these reasons, the Hearing Officer finds that Taxpayer has waived or withdrawn its claims to

deductions under Section 7-9-93 and Section 7-9-77.1.

Presumption of Correctness.

Under NMSA 1978, Section 7-1-17 (C) (2007), the assessment from which this protest

arises is presumed correct and the burden is on Taxpayer to overcome the presumption. See

Archuleta v. O’Cheskey, 1972-NMCA-165, ¶11, 84 N.M. 428, 504 P.2d 638. Unless otherwise

specified, for the purposes of the Tax Administration Act, “tax” is defined to include interest and

civil penalty. See NMSA 1978, Section 7-1-3 (X) (2013). Under Regulation 3.1.6.13 NMAC, the

presumption of correctness under Section 7-1-17 (C) encompasses the Department’s assessment

of penalty and interest. See Chevron U.S.A., Inc. v. State ex rel. Dep’t of Taxation & Revenue,

2006-NMCA-50, ¶16, 139 N.M. 498, 503, 134 P.3d 785, 791 (agency regulations interpreting a

statute are presumed proper and are to be given substantial weight).

For that reason, Taxpayer carries the burden to present countervailing evidence or legal

argument to show that it is entitled to an abatement of an assessment. See N.M. Taxation &

Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶8, 336 P.3d 436. “Unsubstantiated

statements that the assessment is incorrect cannot overcome the presumption of correctness.” See

MPC Ltd. v. N.M. Taxation & Revenue Dep’t, 2003-NMCA-021, ¶13, 133 N.M. 217, 62 P.3d

308; See also Regulation 3.1.6.12 NMAC. If a taxpayer presents sufficient evidence to rebut the

presumption, then the burden shifts to the Department to re-establish the correctness of the

assessment. See MPC, 2003-NMCA-021, ¶13.

“Where an exemption or deduction from tax is claimed, the statute must be construed

strictly in favor of the taxing authority, the right to the exemption or deduction must be clearly

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 11 of 26
and unambiguously expressed in the statute, and the right must be clearly established by the

taxpayer.” See Wing Pawn Shop v. Taxation and Revenue Department, 1991-NMCA-024, ¶16,

111 N.M. 735, 809 P.2d 649 (internal citation omitted); See also TPL, Inc. v. N.M. Taxation &

Revenue Dep’t, 2003-NMSC-007, ¶9, 133 N.M. 447, 64 P.3d 474.

Gross Receipts Tax and the Exception for a Disclosed Agency Relationship.

For the privilege of engaging in business, New Mexico imposes a gross receipts tax on the

receipts of any person engaged in business. See NMSA 1978, Section 7-9-4 (2017). The Gross

Receipts and Compensating Tax Act imposes a presumption that all receipts of a person engaged

in business are taxable. See NMSA 1978, Section 7-9-5 (2002). “Engaging in business” is defined

as “carrying on or causing to be carried on any activity with the purpose of direct or indirect

benefit.” See NMSA 1978, Section 7-9-3.3 (2003). The term “gross receipts” is defined at NMSA

1978, Section 7-9-3.5 (A) (1) (2007) to mean:

the total amount of money or the value of other consideration
received from selling property in New Mexico, from leasing or
licensing property employed in New Mexico, from granting a right to
use a franchise employed in New Mexico, from selling services
performed outside New Mexico, the product of which is initially
used in New Mexico, or from performing services in New Mexico.

Our courts have construed receipts to “include payments received for one’s own account

and then expended to meet one’s own responsibilities.” See MPC, ¶14.

In this protest, the parties do not dispute that Taxpayer performed hospice care services in

New Mexico and that, in the course of providing those services, Taxpayer collected receipts for

its own account and to satisfy its responsibilities to the nursing homes in which its patients

resided. However, Taxpayer claims that the receipts it received from Medicaid to compensate the

nursing home facilities for room and board are not taxable because Taxpayer received those

payments “solely on behalf of another in a disclosed agency capacity.” It further argues that
In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 12 of 26
Regulation 3.2.1.19 (C) (1) NMAC is not applicable because Taxpayer did not incur expenses

requiring reimbursement. Rather, Taxpayer asserts it acted merely as the conduit through which

payment flowed from Medicaid to the nursing home facilities. Regulation 3.2.1.19 (C) (1)

NMAC provides:

The receipts of any person received as a reimbursement of
expenditures incurred in connection with the performance of a
service or the sale or lease of property are gross receipts as defined
by Section 7-9-3.5 NMSA 1978, unless that person incurs such
expense as agent on behalf of a principal while acting in a
disclosed agency capacity. An agency relationship exists if a
person has the power to bind a principal in a contract with a third
party so that the third party can enforce the contractual obligation
against the principal.

The Hearing Officer will first address the argument that receipts from Medicaid were not

reimbursed expenditures. Although the evidence established that Taxpayer was not engaged in

the business of providing room and board, it undoubtedly assumed individual responsibility to

compensate the nursing home facilities for their room and board services, even if Taxpayer was

authorized to obtain payment, or reimbursement, from Medicaid. Contracts between Taxpayer

and each of the nursing home facilities in which it provided services required Taxpayer, not

Medicaid, to make payment within 30 days after Taxpayer’s receipt of the nursing home

facility’s invoice. See Taxpayer Exs. 8 (Sec. 11.4); 9 (Sec. 11.4); 10 (Sec. 11.4); 11 (Sec. 9.6); 12

(Sec. 9.6); 13 (Sec. 9.6).

At all times relevant to this protest, it was the practice of the nursing home facilities to

generate invoices referencing each patient and the details upon which the amount due for each

patient was calculated. [See Taxpayer Ex. 14.1]. Those invoices were submitted to Taxpayer, the

date of which also established the due date for any forthcoming payment. Taxpayer, according to

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 13 of 26
its contracts, was thereafter solely responsible for making timely payment to the nursing home

facilities.

Taxpayer, however, was also concurrently authorized to obtain payment from Medicaid

for room and board services. Accordingly, Taxpayer in reliance on the bills received from the

nursing home facilities also prepared its own invoices for room and board, and submitted them

electronically to Medicaid via the medical care organization. Taxpayer’s invoices provided the

name and address of the patient, and the details underlying the charges. Except for the street

address provided for a patient’s place of residence, invoices did not specifically reference the

name of any individual nursing home facility or signify that it was submitted on behalf of such

facility. Rather, invoices were submitted visibly in the name of Taxpayer alone. [See Taxpayer

Ex. 14.2 – 14.3].

The medical care organization thereafter reviewed the invoices and authorized payment.

Payment was then made electronically, directly to Taxpayer, provided with the details of the

payment relevant to each individual patient. The payment details do not specifically reference

any nursing home facility, or contain any information to indicate that payment is tendered for

further dispersal. [See Taxpayer Ex. 14.4].

With regard for where payments are deposited, there was no indication from the evidence

presented whether payments from Medicaid are separately maintained or comingled with

Taxpayer funds. However, Mr. Rodriguez candidly testified that Medicaid rarely processes

payments in less than 30 days, requiring that Taxpayer advance payment from its own funds in

order to assure timely payment is made to the nursing home facilities. Taxpayer’s exhibits

demonstrate those circumstances. Taxpayer Ex. 14.1 consists of an invoice from a nursing home

facility to Taxpayer dated February 8, 2018. Although it is unclear when Taxpayer submitted its

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 14 of 26
own invoice to Medicaid, via the medical care organization, it is apparent that Taxpayer paid the

invoice from the nursing home facility on February 27, 2018. [See Taxpayer Ex. 14.5]. Taxpayer

thereafter received its payment, or reimbursement, from Medicaid on March 16, 2018. [See

Taxpayer Ex. 14.4].

It is also useful to address the difference between the amounts billed by the nursing home

facilities to Taxpayer, Taxpayer to Medicaid, and the amount which Medicaid thereafter pays to

Taxpayer. Taxpayer Exhibits 14.1 and 14.5 provide that Taxpayer was billed and subsequently

paid $4,416.42 for room and board services. More than two weeks later, Taxpayer Exhibit 14.4

illustrated that Medicaid compensated Taxpayer $4,109.83 for those same room and board

services. The difference, Mr. Rodriguez explained, stemmed from Regulation 8.325.4.18

NMAC, which provides “reimbursement” at 95 percent of the Medicaid rate that it would pay

directly to a nursing home facility, and Taxpayer’s contracts with the nursing home facilities in

which Taxpayer agreed to compensate the nursing home facilities at the full Medicaid rate.

Accordingly, these facts illustrate and exemplify a scenario in which payments from

Medicaid represent reimbursed expenditures which are taxable pursuant to Regulation 3.2.1.19

(C) (1), NMSA 1978, Section 7-9-3.5, and MPC, explaining that receipts include payments

received for one’s own account and expended to meet one’s own responsibilities.

The next issue therefore centers on the relationship between Taxpayer, the nursing home

facilities, and Medicaid, and specifically whether Taxpayer incurred the expenses in a disclosed

agency capacity.

The New Mexico Supreme Court has acknowledged that “[t]he common law emphasizes

the fiduciary nature of the agency relationship, which does not arise until ‘one person (a

“principal”) manifests assent to another person (an “agent”) that the agent shall act on the

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 15 of 26
principal’s behalf and subject to the principal’s control, and the agent manifests assent or

otherwise consents so to act.’” See Maes v. Audubon Indem. Ins. Grp., 2007-NMSC-046, ¶17,

142 N.M. 235, 164 P.3d 934 quoting Restatement (Third) of Agency §1.01 (2006); See also

Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶40, 143 N.M. 142, 173 P.3d 749; Santa Fe Techs.,

Inc. v. Argus Networks, Inc., 2002-NMCA-030, ¶26, 131 N.M. 772, 42 P.3d 1221.

Our courts have, on several occasions, considered the existence and consequence of the

agency relationship on receipts generated amidst that relationship. MPC considered Section 7-9-

3.5(A) (3) (f) and Regulation 3.2.1.19 (C) (1) NMAC and determined that reimbursement of

expenses may be excluded from taxable gross receipts if those receipts stem from an agency

relationship in which:

(1) the agent [taxpayer] has the authority to bind the principal… to an
obligation… created by the agent [taxpayer], and (2) the beneficiary of
that obligation… is informed by contract that he or she has a right to
proceed against the principal… to enforce the obligation.

In this protest, the evidence failed to establish any authority for Taxpayer to act on a

nursing home facility’s behalf or subject to its control. Initial contracts between Taxpayer and

nursing home facilities in 2011 expressly renounced the creation of any agency relationship

whatsoever, and affirmed that the relationship of the parties was that of two independent

contractors. Moreover, the contracts expressly disavowed creating any rights that might be

enforceable by third-party beneficiaries. [See Taxpayer Exs. 8 – 10 (Sections 17.11 – 17.12)].

Subsequent contracts executed in 2012, continued to employ similar terms, but created a

limited and narrow exception for the purpose of billing Medicaid, providing that the Taxpayer

would serve as agent for the nursing home facility for that limited purpose. [See Taxpayer Exs.

11 – 13 (Section 7.4; 9.1.A(i)]. Otherwise, the 2012 contracts similarly renounced the creation of

any other agency relationship, affirmed that the relationship of the parties was that of two

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 16 of 26
independent contractors, and disavowed creating any rights that might be enforceable by third-

party beneficiaries. [See Taxpayer Exs. 11 – 13 (Sections 15.12 – 15.13)].

However, the Hearing Officer observed that the addition of language purporting to create

a limited agency relationship did not confer any additional or newfound authority on Taxpayer.

Taxpayer was already authorized to bill Medicaid for room and board services pursuant to

Regulation 8.325.4.18 NMAC and did not require any additional authority from the nursing

home facilities. Most significantly, however, is the fact that Mr. Rodriguez testified that

regardless of the revisions to the contracts from 2011 to 2012, Taxpayer’s billing practices and

procedures did not change as a result of the new language.

“The majority rule is that the manner in which the parties designate a relationship is not

controlling, and if an act done by one person on behalf of another is in its essential nature one of

agency, the one is the agent of the other, notwithstanding he is not so called.” See Chevron Oil

Co. v. Sutton, 1973-NMSC-111, ¶4, 85 N.M. 679, 515 P.2d 1283; See also Robertson v. Carmel

Builders Real Estate, 2004-NMCA-056, 135 N.M. 641, 92 P.3d 653. In this protest, the 2012

contracts certainly utilized specific keywords or catchphrases, but the evidence failed to

demonstrate any conduct exemplifying a genuine agency relationship.

For instance, Mr. Rodriguez’s testimony and Taxpayer Exhibit 14 demonstrate that

payments received by Taxpayer from Medicaid were electronically deposited to its account from

which it also made its payments to the nursing home facilities. [See Taxpayer Ex. 14.5]. As

previously discussed, there is no indication that payments from Medicaid were tendered to

Taxpayer as an agent on behalf of its principal, or treated by Taxpayer in a manner that would

differentiate, or segregate, those funds from its own. This is a relevant observation because

general rules of agency discourage an agent from commingling a principal’s assets with its own,

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 17 of 26
and therefore, conduct intended to maintain a separation of assets may be indicative of a genuine

agency relationship. For example, the Restatement (Third) of Agency, §8.12, states:

An agent has a duty, subject to any agreement with the principal,

(1) not to deal with the principal’s property so that it appears to be
the agent’s property;

(2) not to mingle the principal’s property with anyone else’s; and

(3) to keep and render accounts to the principal of money or other
property received or paid out on the principal’s account.

Conversely, if the parties had an alternative agreement for the maintenance of their

respective assets, then evidence on that agreement may have been relevant as well. Comment c

of the Restatement (Third) of Agency, §8.12 instructs that “[a]n agent and a principal may agree

that the agent may use the principal’s property in a manner that creates the appearance that it is

the agent’s property. In the absence of such an agreement, an agent has a duty to the principal not

to deal with the principal’s property in this manner.” In this protest, where Taxpayer asserted that

it was an agent dealing solely with the assets of its principal, it offered no evidence to

demonstrate that it adhered to any procedures for maintaining the principal’s purported assets in

a manner consistent with the obligations of a genuine agent.

Despite the lack of outward conduct demonstrating the existence of an agency

relationship, the Hearing Officer has no intention to merely disregard the language of the

contract purporting to establish an agency relationship. Instead, the Hearing Officer applies the

general rule that “[a] contract must be construed as a harmonious whole, and every word or

phrase must be given meaning and significance according to its importance in the context of the

whole contract.” See Bank of N.M. v. Sholer, 1984-NMSC-118, ¶6, 102 N.M. 78, 691 P.2d 465.

In this protest, the contracts impose a strict limit on Taxpayer’s agency, confining its authority to

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 18 of 26
requesting reimbursement from Medicaid only. [See Taxpayer Exs. 11 (Sec. 7.4); 12 (Sec. 7.4);

13 (Sec. 7.4)]. There is no further grant of authority within the contracts which is consistent with

Mr. Rodriguez’ testimony that the nursing home facilities did not confer authority to Taxpayer to

bind them to obligations with third parties, including Medicaid.

Moreover, the Hearing Officer observed that Taxpayer was already entitled, through the

regulatory framework of Regulation 8.325.4.18 NMAC, to seek reimbursement from Medicaid

and did not require any grant of additional authority. This observation is significant because it

illustrates that the newly-added agency language was not intended to modify established billing

procedures, which is also consistent with Mr. Rodriguez’ testimony that nothing actually

changed, from a billing perspective, as a result of the 2012 revisions.

Consequently, the conduct of the parties, as well as the terms of their contracts, fails to

establish a genuine agency relationship in which Taxpayer had authority to bind the nursing

home facilities to obligations created by Taxpayer. With regard for the second prong of MPC,

there is also no evidence to establish that the beneficiary of that obligation, if it had existed, was

informed by contract that it had a right to proceed against the principal to enforce the obligation.

Mr. Rodriguez testified that neither Medicaid nor any other third party was actually

informed by contract that it had a right to proceed against the nursing home facilities to enforce

obligations it may have created, even if there was actual authority to do so, which the Hearing

Officer did not find.

Even if disclosure could be implied from the regulatory framework of the Medicaid

program, an apparent authority, or a constructive disclosure, is insufficient because of the clear

statutory and regulatory language requiring that the relationship be disclosed. The Court of

Appeals recently recognized, while applying MPC that “[a]n actual, affirmative statement

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 19 of 26
disclosing the agency relationship is necessary.” See Bogle Management Co., Inc. v. N.M.

Taxation & Revenue Dep’t, No. A-1-CA-35641, dec. at 18 - 19 (N.M. Ct. App. Dec. 5, 2017)

(non-precedential); See Santa Fe Tow and Emergency Lock & Key, No. 15-21 (June 30, 2015)

(non-precedential).

In summary, Taxpayer did not establish it was a disclosed agent in this case with

authority to bind the nursing home facilities to third-party obligations, and that the third parties

were actually informed of their right to proceed against the nursing home facilities to enforce

such obligations. See MPC, ¶36.

The totality of the evidence established that Taxpayer received payments from Medicaid

on its own behalf as reimbursement for satisfying its own contractual obligations with the

nursing home facilities. Those payments, tendered solely to Taxpayer, were not “amounts

received solely on behalf of another in a disclosed agency capacity[,]” and are therefore not

excludable from Taxpayer’s taxable gross receipts. See NMSA 1978, Section 7-9-3.5 (A) (3) (f);

Regulation 3.2.1.19(C) (1) NMAC. Instead, the evidence established that the receipts at issue in

this protest consisted of “payments received for one’s own account and then expended to meet

one’s own responsibilities.” See MPC, ¶14.

Worker’s Compensation.

Although the caption utilized in this protest incorporates Letter ID No. L0849274160,

which arose from the imposition of tax, penalty and interest under NMSA 1978, Section 52-5-19

of the Workers Compensation Act, Taxpayer’s protest is silent with regard for that assessment.

Moreover, Taxpayer did not present evidence or argument relevant to rebutting the presumption

of correctness that attached to that assessment. See NMSA 1978, Section 7-1-17 (C) (2007).

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 20 of 26
The Hearing Officer presumes that it was never the Taxpayer’s intention to protest the

assessment of tax, penalty and interest under NMSA 1978, Section 52-5-19 of the Workers

Compensation Act. To the extent Taxpayer intended its protest to also address those matters,

then Taxpayer’s protest should be denied for the lack of sufficient evidence and arguments to

overcome the presumption of correctness that attached to that assessment.

Equitable Recoupment

During Ms. Carlisle’s cross-examination, Taxpayer inquired whether any of the nursing

home facilities paid gross receipts tax on their receipts from relevant room and board services.

Ms. Carlisle responded that answering that question would require that she divulge the

confidential taxpayer information of those entities, contrary to NMSA 1978, Section 7-1-8.

Taxpayer did not object and made no further inquiries relevant to that potential issue.

Nevertheless, it was apparent that the Taxpayer intended to advance, or at least explore a theory

of equitable recoupment.

An assessment may be abated when another person paid the amount of the tax “on behalf

of the taxpayer on the same transaction; provided that the requirements of equitable recoupment

are met.” See NMSA 1978, Section 7-1-28 (F) (2013). Generally, equitable recoupment permits

a party to assert a claim or defense that would otherwise be barred by a statute of limitations

when the claim arises from the same transaction. See City of Carlsbad v. Grace, 1998-NMCA-

144, ¶16, 126 N.M. 95, 966 P.2d 1178. The purpose of the doctrine of equitable recoupment is

to prevent the unjust enrichment of one party due to another’s mistake and to bypass harsh

applications of a procedural bar on limitations periods. See id. at ¶20-21.

In tax transactions, there are three elements that must be met for equitable recoupment to

apply. See Teco Invs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-055, ¶8, 125 N.M. 103,

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 21 of 26
957 P.2d 532. There must be: 1) a single taxable event; 2) taxes assessed on that single event on

inconsistent theories; and 3) a strict identity of interest. See id. Separate parties may still have a

strict identity of interest. See id. at ¶ 10-11.

In this case, Taxpayer could not rely on the testimony of the Department to establish the

elements of equitable recoupment given the statutory prohibitions on disclosing taxpayer return

and return information. Taxpayer was not, however, prohibited from presenting its own evidence

to establish those elements. Although Mr. Rodriguez testified to his belief that the nursing home

facilities should have paid gross receipts, that testimony was speculative and unsupported by any

foundation. Accordingly, Taxpayer did not establish the elements of equitable recoupment.

Penalty and Interest.

When a taxpayer fails to make timely payment of taxes due to the state, “interest shall be

paid to the state on that amount from the first day following the day on which the tax becomes

due...until it is paid.” See NMSA 1978, Section 7-1-67 (2007) (italics for emphasis). Under the

statute, regardless of the reason for non-payment of the tax, the Department has no discretion in

the imposition of interest, as the statutory use of the word “shall” makes the imposition of

interest mandatory. See Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-

013, ¶22, 146 N.M. 24, 206 P.3d 135 (statutory use of the word shall indicates mandatory

requirement). The language of Section 7-1-67 also makes it clear that interest begins to run from the

original due date of the tax until the tax principal is paid in full. The Department has no discretion

under Section 7-1-67 and must assess interest against Taxpayer.

Under NMSA 1978, Section 7-1-69 (2007), when a taxpayer fails to pay taxes due to the

State because of negligence or disregard of rules and regulations, but without intent to evade or

defeat a tax, by its use of the word “shall,” civil penalty must be added to the assessment. As

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 22 of 26
discussed above, the statute’s use of the word “shall” makes the imposition of penalty mandatory

in all instances where a taxpayer’s actions or inactions meet the legal definition of “negligence.”

Regulation 3.1.11.10 NMAC defines negligence in three separate ways: (A) “failure to

exercise that degree of ordinary business care and prudence which reasonable taxpayers would

exercise under like circumstances;” (B) “inaction by taxpayer where action is required”; or (C)

“inadvertence, indifference, thoughtlessness, carelessness, erroneous belief or inattention.” In this

case, Taxpayer’s failure to pay gross receipts tax meets the legal definition of negligence as defined

under Regulation 3.1.11.10 NMAC and Taxpayer presented no evidence or argument to the rebut

that finding. Since the Department’s assessment of penalty and interest is presumed correct, and the

Taxpayer did not officer evidence or argument to rebut that presumption, the Department’s

assessment of penalty and interest was appropriate.

In conclusion, the Department’s assessment of tax, penalty and interest in the above-

captioned protests was correct. Having failed to rebut the presumption of correctness that attached

to the assessments, Taxpayer’s protest should be denied.

CONCLUSIONS OF LAW

A. Taxpayer filed a timely, written protest to the assessment. Jurisdiction lies over the

parties and the subject matter of this protest.

B. A hearing was timely set and held within 90 days of Taxpayer’s protest as required

by NMSA 1978, Section 7-1B-8 (A) (2015).

C. All of Taxpayer’s receipts were presumed subject to gross receipts tax under

NMSA 1978, Section 7-9-5 (2002).

D. The contracts between the nursing home facilities and Taxpayer failed to establish a

disclosed agency relationship in which Taxpayer had actual authority to bind the nursing home

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 23 of 26
facilities in contracts with third parties, and Taxpayer was therefore not a disclosed agent under

NMSA 1978, Section 7-9-3.5 (A) (3) (f) and Regulation 3.2.1.19 (C) (1) NMAC. See MPC, ¶36.

E. Since Taxpayer was not a disclosed agent under NMSA 1978, Section 7-9-3.5 (A)

(3) (f) and Regulation 3.2.1.19 (C) (1) NMAC, Taxpayer’s receipts from Medicaid for room and

board services were taxable gross receipts.

F. Under NMSA 1978, Section 7-1-67 (2007), Taxpayer is liable for accrued interest

under the assessment, which shall continue to accrue until the tax principal is satisfied.

G. Under NMSA 1978, Section 7-1-69 (2007), Taxpayers are liable for civil

negligence penalty under the negligence definition found under Regulation 3.1.11.10 (C) NMAC.

Based on the foregoing, Taxpayer’s protest is DENIED. As of March 29, 2018,

Taxpayer’s liability under Letter ID No. L0849274160 was $290,967.68 reflecting the sum of

$219,420.85 in gross receipts tax, $45,080.63 in penalty, $18,242.43 in interest for a total

balance of $282,743.91 plus interest accruing through March 29, 2018 in the amount of

$8,223.77. [See Letter ID No. L1216767280; Dept. Ex. B].

DATED: April 27, 2018

Chris Romero
Hearing Officer
Administrative Hearings Office
P.O. Box 6400
Santa Fe, NM 87502

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 24 of 26
NOTICE OF RIGHT TO APPEAL

Pursuant to NMSA 1978, Section 7-1-25 (2015), the parties have the right to appeal this

decision by filing a notice of appeal with the New Mexico Court of Appeals within 30 days of the

date shown above. If an appeal is not timely filed with the Court of Appeals within 30 days, this

Decision and Order will become final. Rule of Appellate Procedure 12-601 NMRA articulates

the requirements of perfecting an appeal of an administrative decision with the Court of Appeals.

Either party filing an appeal shall file a courtesy copy of the appeal with the Administrative

Hearings Office contemporaneous with the Court of Appeals filing so that the Administrative

Hearings Office may begin preparing the record proper. The parties will each be provided with a

copy of the record proper at the time of the filing of the record proper with the Court of Appeals,

which occurs within 14-days of the Administrative Hearings Office receipt of the docketing

statement from the appealing party. See Rule 12-209 NMRA.

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 25 of 26
CERTIFICATE OF SERVICE

On April 27, 2018, a copy of the foregoing Decision and Order was submitted to the parties

listed below in the following manner:

First Class Mail Interagency Mail

In the Matter of the Protest of
Del Corazon Hospice, L.L.C.
Page 26 of 26