CITY OF ALAMOGORDO, NEW MEXICO, a
Municipal Corporation,
Plaintiff-Appellee,
vs.
WALKER MOTOR CO., INC., NORM ARNOLD CHRYSLER-PLYMOUTH,
SACRAMENTO MOTOR CO., INC. MILNE AUTO ELECTRIC and
MILNE INTERNATIONAL, Defendants-Appellants.
SUPREME COURT OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF OTERO
COUNTY, Joe H. Galvan, District Judge.
Burroughs & Rhodes, F. Randolph
Burroughs, Alamogordo, New Mexico, Attorneys for Appellants.
Steven K. Sanders, Alamogordo, New
Mexico, Attorney for Appellee.
SOSA, Chief Justice, wrote the opinion. WE
CONCUR: WILLIAM R. FEDERICI, Justice, EDWIN L. FELTER, Justice.
{*691} SOSA, Chief
Justice.
{1} A motion for rehearing
was filed and granted in order to consider our previous opinion. After
reconsideration this opinion is substituted for the opinion filed November 16,
1979.
{2} Appellee, the City of
Alamogordo, brought this suit against appellants, Walker Motor Co., Inc., Norm
Arnold Chrysler-Plymouth, Sacramento Motor Co., Inc., Milne Auto Electric and
Milne International, to collect occupation taxes allegedly due for the years
1973, 1974, 1975 and 1976, and for penalties and interest thereon. The district
court held that taxpayers were obligated to pay the delinquent occupation
taxes, but the court refused to impose the penalties or interest. Taxpayers
appeal from a judgment upholding the tax, and the City cross-appeals from the
district court's refusal to impose the penalties and interest. We reverse the
decision of the district court.
{3} Taxpayers, who are
engaged in the business of selling motor vehicles, contend that the imposition
of a municipal occupation tax upon such businesses is prohibited by state law.
We agree.
{4} The City imposed the
occupation taxes which are the subject of this dispute under the authority of
Section
3-38-3, N.M.S.A. 1978, which provides in part:
A. A municipality may impose an occupation tax and classify
any occupation, profession, trade, pursuit, corporation and other institution
and establishment, utility and business of whatever name or character, like or
unlike * * *.
B. The occupation tax shall not exceed one dollar ($1.00) per
annum for each one thousand dollars ($1,000) gross receipts of business done
per annum except a minimum tax of five dollars ($5.00) per annum may be levied
or an occupation tax in an amount not to exceed twenty-five dollars ($25.00)
per annum per business may be levied on each business. A municipality may
classify occupations and impose an occupation tax on each occupation.
{5} Although Section 3-38-3
evinces a legislative intent that all businesses be treated equally for
purposes of occupation tax treatment, other statutes demonstrate that the
Legislature has intended that businesses engaging in the sale of motor vehicles
be treated differently.
{6} Section 3-18-2(C)(3)(d)
and (D), N.M.S.A. 1978, provide in part:
Unless otherwise provided by law, no municipality may impose:
C. any excise tax including but not limited to:
(3) excise taxes on any incident relating to:
D. However, any municipality may impose excise taxes of the
sales, gross receipts or any other type on specific {*692}
products and services, other than those enumerated in Paragraph (3) of
Subsection C....
{7} There is no question but
that an occupation tax imposed under Section 3-38-3 is an excise tax as that
term is used in Section 3-18-2(C). An excise tax is defined as:
A tax imposed directly by [the] Legislature without
assessment and measured by amount of business done, income previously received,
or by extent to which [the] privilege may have been enjoyed or exercised by the
taxpayer, irrespective of [the] nature or value of his assets or his
investments in business * * *.
Black's Law Dictionary 672 (4th ed. rev. 1968). The
definition of an occupation tax is:
A tax imposed upon an occupation or the prosecution of a
business, trade, or profession; not a tax on property, or even the capital
employed in the business, but an excise tax on the business itself * *.
(Emphasis added.)
Black's Law Dictionary 1230 (4th ed. rev. 1968).
{8} Under Section 3-38-3(B),
the municipal occupation tax is assessed according to the amount of gross
receipts of business done. Thus, such a tax is an excise tax. The question for
resolution, therefore, is whether such a tax can be imposed on businesses
engaged in the sale of motor vehicles, notwithstanding the specific
prohibitions of Section 3-18-2(C)(3)(d) and (D).
{9} Although the grant of
taxing authority in Section 3-38-3 is broad and all-inclusive, the prohibitions
found in Section 3-18-2(C)(3)(d) and (D) are specific and explicit. It is a
well-established principle of statutory construction that where one statute
deals with a subject in general terms and another deals with a part of the same
subject in a more specific way, the more specific statute will be considered to
be an exception to the general statute.
New Mexico Bureau of Rev. v. Western
Elec. Co.,
89 N.M. 468, 533 P.2d 1275 (1976);
State v. Spahr,
64
N.M. 395,
328 P.2d 1093 (1958).
See also Sutherland,
Statutes and
Statutory Construction, § 51.05, p. 315 (4th ed. 1973).
{10} It is also well-settled
that where the conflict between an earlier act and a later act is clear and
irreconcilable, the later act, as the most recent expression of legislative
intent, will be considered to have repealed by implication the earlier
conflicting statute to the extent of the inconsistency.
See Rader v. Rhodes,
48 N.M. 511,
153 P.2d 516 (1944); Sutherland,
supra, § 51.02 p. 290.
Section 3.38-3 was enacted in 1965; Section 3-18-2 was enacted in 1972.
{11} The City contends that
the imposition of occupation taxes on motor vehicle sales is permissible
because the prohibitions contained in § 3-18-2 are prefaced with the phrase
"unless otherwise provided by law." The City argues that Section
3-38-3 falls within the phrase, and is thus a statutory exception to the
prohibitions of Section 3-18-2.
{12} We do not agree that the
very general taxing statute passed in 1965 was contemplated to be within the
term "unless otherwise provided by law," and thus to be outside the
specific prohibition relating to motor vehicles which was enacted seven years
later. We believe that if the Legislature had intended that an existing general
law be an exception to the later enacted specific limitations on municipal
taxing authority, it would have so provided in more specific language.
{13} The conclusion we reach
is buttressed by other statutes which demonstrate a legislative policy of
treating the taxation of motor vehicles sales differently from the taxation of
most other business activities.
{14} Section
66-6-27, N.M.S.A. 1978 (Cum. Supp. 1979), imposes an
excise tax of two percent of the sales price on the issuance of a certificate
of title arising from the sale of a motor vehicle. Section
7-9-22, N.M.S.A.
1978, provides that the receipts from sales of motor vehicles on which a tax is
imposed under Section 64-11-15, N.M.S.A. 1953 (Supp. 1975), the predecessor to
Section 66-6-27 are exempt from the gross receipts tax imposed by the state
under the Gross Receipts and Compensating Tax Act, Sections 7-9-1 to
7-9-81,
N.M.S.A. 1978. Municipal gross receipts taxes may not be imposed on those items
which are exempted from the state gross receipts tax (e.g., the exemption
contained in Section 7-9-22, for gross receipts from the sale of motor
vehicles). §
7-19-6, N.M.S.A. 1978 (Repl. Pamp. 1979).
{15} Although the foregoing
provisions do not in themselves necessarily mandate the result we reach in this
case, they do support our construction of Sections 3-38-3 and 3-18-2.
{16} Therefore, we hold that
municipal occupation taxes may not be imposed under Section 3-38-3 on any
incident relating to motor vehicle sales. This holding makes it unnecessary to
consider the other issues raised on appeal by both parties. In the interest of
the fair administration of justice, this Court's holding is given modified
prospectivity and made applicable only to the parties to this litigation, to
any cases actually filed, docketed and pending, and to any causes of action
arising after the filing of this decision.
{17} The decision of the
district court is reversed and the cause remanded for further action not
inconsistent with this opinion.
WE CONCUR: WILLIAM R. FEDERICI, Justice, EDWIN L. FELTER,
Justice.