A. A telecommunications relay service surcharge of thirty-three hundredths percent is imposed on the gross amount paid:

(1) by customers, except customers whose telephone service rates are reduced as authorized by the Low Income Telephone Service Assistance Act [Chapter 63, Article 9C NMSA 1978], for intrastate telecommunications services provided in this state;

(2) by customers for the intrastate portion of interconnected voice over internet protocol service;

(3) by customers for intrastate mobile telecommunications services that originate and terminate in the same state, regardless of where the mobile telecommunications services originate, terminate or pass through, provided by home service providers to customers whose place of primary use is in New Mexico; and

(4) by a prepaid consumer in a retail transaction.

B. The telecommunications relay service surcharge shall be included on the monthly bill of each customer of a local exchange company or other telecommunications company providing intrastate telecommunications services, interconnected voice over internet protocol services or intrastate mobile telecommunications services and paid at the time of payment of the monthly bill. Receipts from selling those services to any other telecommunications company or provider for resale are not subject to the surcharge. The customer is liable for the payment of the surcharge to the provider of intrastate mobile telecommunications services, the provider of interconnected voice over internet protocol services or the local exchange company or other telecommunications company providing intrastate telecommunications services to the customer.

C. For the purposes of the surcharge imposed on a retail transaction pursuant to Paragraph (4) of Subsection A of this section:

(1) the surcharge shall be collected by the seller from the prepaid consumer with respect to each retail transaction occurring in this state. The amount of the surcharge shall be either separately stated on an invoice, receipt or other similar document that is provided to the prepaid consumer by the seller or otherwise disclosed to the prepaid consumer;

(2) for the purposes of Paragraph (1) of this subsection, a retail transaction that is effected in person by a prepaid consumer at a business location of the seller shall be treated as occurring in this state if that business location is in this state, and any other retail transaction is treated as occurring in this state if the retail transaction is treated as occurring in this state for purposes of the Gross Receipts and Compensating Tax Act [Chapter 7, Article 9 NMSA 1978];

(3) the surcharge is the liability of the prepaid consumer and not of the seller or any provider, except that the seller shall be liable to remit all surcharges collected from the prepaid consumer as provided in this subsection, including all such surcharges that the seller is deemed to collect where the amount of the surcharge has not been separately stated on an invoice, receipt or other similar document provided to the prepaid consumer by the seller;

(4) the amount of the surcharge that is collected by a seller from a prepaid consumer, if such amount is separately stated on an invoice, receipt or other similar document provided to the prepaid consumer by the seller, shall not be included in the base for measuring any tax, fee, surcharge or other charge that is imposed by this state, any political subdivision of this state or any intergovernmental agency;

(5) when prepaid wireless communications service is sold with one or more other products or services for a single, non-itemized price, the percentage specified in Subsection A of this section shall apply to the entire non-itemized price unless the seller elects to apply such percentage to:

(a) if the amount of the prepaid wireless communications service is disclosed to the prepaid consumer as a dollar amount, such dollar amount; or

(b) if the seller can identify the portion of the price that is attributable to the prepaid wireless communications service by reasonable and verifiable standards from its books and records that are kept in the regular course of business for other purposes, including non-tax purposes, such portion;

(6) if a minimal amount of prepaid wireless communications service is sold with a prepaid wireless device for a single, non-itemized price, the seller may elect not to apply the percentage specified in Subsection A of this section to such transaction. For the purposes of this paragraph, an amount of service denominated as ten minutes or less, or five dollars ($5.00) or less, is minimal;

(7) surcharges collected by sellers shall be remitted to the taxation and revenue department at the times and in the manner provided with respect to the Gross Receipts and Compensating Tax Act. The department shall establish registration and payment procedures that substantially coincide with the registration and payment procedures that apply to the Gross Receipts and Compensating Tax Act. A seller shall be permitted to deduct and retain three percent of surcharges that are collected by the seller from the prepaid consumer;

(8) the audit and appeal procedures applicable to the Gross Receipts and Compensating Tax Act shall apply to the surcharge;

(9) the taxation and revenue department shall establish procedures by which a seller of prepaid wireless communications services may document that a sale is not a retail transaction, which procedures shall substantially coincide with the procedures for documenting sale for resale transactions for the Gross Receipts and Compensating Tax Act; and

(10) notwithstanding Paragraph (1) of this subsection, if a 911 surcharge is imposed on prepaid wireless communications service pursuant to the Enhanced 911 Act, the taxation and revenue department shall promulgate rules to permit sellers to combine the surcharge imposed pursuant to this section and the surcharge imposed pursuant the Enhanced 911 Act into a single surcharge on the invoice, receipt or other similar document that is provided to the prepaid consumer. The department shall ensure that appropriate surcharge revenues are directed proportionately to the respective 911 and telecommunications relay service funds.

D. A telecommunications company providing intrastate telecommunications services, a home service provider providing intrastate mobile telecommunications services and a seller of interconnected voice over internet protocol services shall, on sales subject to the telecommunications relay service surcharge, assess and collect the surcharge and remit the surcharge collected monthly to the taxation and revenue department on or before the twenty-fifth day of the month following collection. The department shall administer and enforce the collection of the surcharge in accordance with the Tax Administration Act [Chapter 7, Article 1 NMSA 1978].

E. The taxation and revenue department shall transfer to the telecommunications access fund the amount of the telecommunications relay service surcharge collected less any amount deducted in accordance with Subsection F of this section. Transfer of the net receipts from the surcharge to the telecommunications access fund shall be made within the month following the month in which the surcharge is collected.

F. The taxation and revenue department may deduct an amount not to exceed three percent of the telecommunications relay service surcharge collected as a charge for the administrative costs of collection and shall remit that amount to the state treasurer for deposit in the general fund each month.

G. The commission shall report to the revenue stabilization and tax policy committee annually by September 30 the following information with respect to the prior fiscal year:

(1) the amount and source of revenue received by the telecommunications access fund;

(2) the amount and category of expenditures from the fund; and

(3) the balance of the fund on that June 30.

History: Laws 1993, ch. 54, § 11; 1996, ch. 48, § 2; 2002, ch. 18, § 7; 2004, ch. 106, § 6; 2017, ch. 96, § 2.

The 2017 amendment, effective July 1, 2017, expanded the application of the telecommunications relay service surcharge to include modern telecommunications technologies, exempted certain telecommunications services customers from the surcharge, clarified certain provisions of the Telecommunications Access Act, and deleted "telephone" and added "telecommunications" throughout the section; in Subsection A, after "paid:", added new paragraph designation "(1)", in Paragraph A(1), added "except customers whose telephone service rates are reduced as authorized by the Low Income Telephone Service Assistance Act", after "for", deleted former paragraph designation "(1)", after "services", deleted "other than mobile telecommunications services", added a new Paragraph A(2) and redesignated former Paragraph A(2) as Paragraph A(3), in Paragraph A(3), added "by customers for", and added Paragraph A(4); in Subsection B, after "services", added "interconnected voice over internet protocol services", after "selling", deleted "a service" and added "those services", after "resale", deleted "shall" and added "are", after "not", deleted "be", after "The customer", deleted "shall be" and added "is", after "surcharge to", added "the provider of intrastate mobile telecommunications services, the provider of interconnected voice over internet protocol services or", and deleted the last sentence of the subsection, which defined "home service provider", "mobile telecommunications services" and "place of primary use"; added a new Subsections C and redesignated former Subsections C through F as Subsections D through G, respectively; in Subsection D, after "services", added "a home service provider providing intrastate mobile telecommunications services and a seller of interconnected voice over internet protocol services", after "shall", deleted "be responsible for assessing, collecting and remitting" and added "on sales subject to", after "service surcharge", deleted "to the taxation and revenue department. The amount of the telecommunications relay service" and added "assess and collect the surcharge and remit the", after "surcharge collected", deleted "by a telecommunications company shall be remitted", after "twenty-fifth", added "day", after "following collection", deleted "which", in the last sentence, added "The department", and after "collection of the surcharge", deleted "pursuant to the provisions of" and added "in accordance with"; in Subsection E, after "shall", deleted "remit" and added "transfer", after "amount deducted", deleted "pursuant to the provisions of" and added "in accordance with", and after "Subsection", deleted "E" and added "F"; and in Subsection F, after "costs of collection", deleted "which" and added "and shall remit that", and after "amount", deleted "shall be remitted".

The 2004 amendment, effective July 1, 2005, revised Subsection A to delete "of one" before "percent", designated the last paragraph of Subsection A as Subsection B, redesignated Subsections B to E as Subsections C to F and amended Subsection F to delete "general services department" and insert "commission".

The 2002 amendment, effective August 1, 2002, made a minor stylistic change in Subsection A; added the Paragraph A(1) designation and inserted "other than mobile telecommunication services"; added Paragraph A(2); in the following paragraph inserted "or intrastate mobile telecommunications services" in the first sentence, and added the last sentence.

The 1996 amendment, effective July 1, 1996, inserted "providing intrastate telephone services" in the second sentence of Subsection A, substituted "providing intrastate telephone services" for "except a company contributing to the intrastate relay service" in the first sentence in Subsection B, and added Subsection E.