Current through Register Vol. 35, No. 6, March 26, 2024
A. Written request: All requests for
administrative review must be made in writing.
B. Submittal deadline: All requests for
administrative review must be received by the department within 30 days of the
date of the applicable notice. Failure to submit a request within the
prescribed time will be deemed a waiver of the opportunity to contest the
offset and to a hearing.
C. Grounds
for administrative review: The grounds for administrative review shall be
limited to the following:
(1) no judgment has
been filed against the appellant or the appellant's spouse for an educational
loan;
(2) the judgment has been
paid in full;
(3) the judgment
creditor has agreed to accept other arrangements for payment of the judgment
and the arrangements have been fully complied with;
(4) the amount of the intercepted refund
exceeds the unpaid balance of the judgment; or
(5) the appellant is entitled to receive all
or part of the refund regardless of the claimed judgment debt against the
appellant's spouse based upon New Mexico's community property laws.
D. Filing of requests for
administrative review: The department representative responsible for the
debtor's account will receive the request for administrative review submitted
by the appellant and shall file the request in the debtor's loan
file.
E. Acknowledgement of receipt
of request for administrative review: The department will, upon receipt of the
appellant's request for administrative review, send the appellant an
acknowledgment of receipt of the request and will file a copy of the
acknowledgment in the debtor's loan file. The acknowledgment may be combined
with a notice of rejection of the request under Subsection F of 5.7.33.10 NMAC,
a notice of informal resolution under Subsection G of 5.7.33.10 NMAC, or notice
of submission of the request to the administrative hearing officer under
Subsection H of 5.7.33.10 NMAC.
F.
Rejection of request for administrative review: The department shall review the
appellant's request for administrative review to determine if the request
specifies an allowable ground for review as provided in Subsection C of
5.7.33.10 NMAC. If the appellant has failed to specify an allowable ground for
review, the department will prepare and send to the appellant a notice that the
request has been rejected for such failure. The department will file a copy of
this notice in the debtor's loan file. A request for administrative review
which has been rejected shall be treated as if no request had been
submitted.
G. Informal resolution
by the department: If the request for administrative review specifies an
allowable ground for review, the department shall check for possible error and
attempt to resolve the request prior to formal hearing, as follows:
(1) Resolution prior to transfer of the
refund to the department:
(a) Certified
judgment balance incorrect, no judgment, or other arrangements to pay judgment:
If, prior to transfer of the refund to the department, the department
determines that the debtor owes nothing, that there is no judgment against
debtor, or that the debtor has made other arrangements for payment of the
judgment and is not in default, the department shall cause the debtor's name to
be removed from the tax refund intercept list.
(b) Community property claim by spouse: If
prior to transfer of the refund to the department, the department determines
that the debtor's spouse is entitled to all or part of the refund, the
department must take steps to correct the amount.
(2) Resolution after transfer of the refund
to the department:
(a) Improper offset against
debtor's refund: If the department determines that an amount which has already
been offset is improper because there is no judgment against the debtor, the
judgment is paid in full, or the debtor has made other arrangements for payment
of the judgment and is not in default, the department must take steps to refund
the amount to the debtor promptly. In cases of joint tax returns, the refund
check should be made payable to both the debtor and spouse.
(b) Excess offset against debtor's refund: If
the department determines that an amount which has been offset exceeds the
amount of the debtor's unpaid judgement balance, the department must take steps
to refund the excess amount to the debtor promptly. In cases of joint tax
returns, the refund check should be made payable to both the debtor and
spouse.
(c) Resolution of
error-community property claim by spouse: If the department determines that the
debtor's spouse is entitled to a share of the refund, the department must take
steps to refund the proper share to the spouse. The refund check should be made
payable solely to the spouse.
(3) Notice to appellant of informal
resolution: In the event that the department determines that an error exists,
the department shall send the appellant a notice acknowledging the
determination of error and resolution. If the department's action fully
resolves the request for administrative review in favor of the appellant, the
notice shall state that the informal resolution shall be a final resolution of
the request unless the appellant requests further review within 15 days of the
date of this notice.
(4) No
determination of error or determination of error does not fully resolve appeal:
If the department determines that no error has been made, or a determination of
error does not fully resolve the appeal, the department must provide the
appellant with information concerning the administrative review process. If any
dispute remains between the department and the appellant at this point, the
appellant must be advised that the dispute will be resolved by the
administrative hearing officer.
H. Submission of hearing request to
administrative hearing officer: When the appellant has specified an allowable
ground for administrative review and the department makes a determination of no
error, or a determination of error does not fully resolve the appeal and a
dispute remains, the department shall transmit the appellant's hearing request
to the administrative hearing officer together with such information as may be
requested by the hearing officer.
