New Mexico § 51-1-36 - Collection of contributions

§ 51-1-36. Collection of contributions

A. Contributions unpaid on the date on which they are due and payable shall bear interest

at the rate of one percent per month from and after such date until payment is received

by the division. Interest collected pursuant to this subsection shall be paid into the employment

security department fund. B. If, after due notice, any employer defaults in any payment of contributions or

interest thereon, the amount due shall be collected by civil action in the name of

the division, and the employer adjudged in default shall pay the costs of such action. Civil actions brought under this section to collect contributions or interest thereon

from an employer shall be heard by the court at the earliest possible date and shall

be entitled to preference on the calendar of the court, to the same extent as civil

actions and appeals of civil actions brought to collect unpaid or underpaid wages,

interest and any other amounts due under Section 50-4-26 NMSA 1978 , over all other civil actions except petitions for judicial review under this act

and worker's compensation cases arising under Chapter 52, Article 1 NMSA 1978 or in the discretion of the secretary, if any contribution or any portion thereof

or any interest or penalty imposed by the Unemployment Compensation Law is not paid

within thirty days after the same becomes due, the secretary shall, after due notice

and opportunity to be heard in accordance with regulations, issue a warrant under

its official seal, directed to the sheriff of any county of the state commanding the

sheriff to levy upon and sell the real and personal property of the person owning

the same, found within that county, of the payment of the amount due and an added

amount of ten percent of the contribution in addition to any other penalties imposed

and costs of executing the warrant, and to return such warrant to the secretary and

pay to the secretary the money collected by virtue thereof, by the time to be specified,

not more than thirty days from the date of the warrant. In the event the division does not know the amount of contribution due, and the

employer from whom the same is due refuses or fails to make reports showing what the

employer or the division claims for the amount of contributions that the division

believes to be due, and the division files the warrant for the estimated amount, mailing

notice to the employer stating that the division is estimating the amount of contribution

due and giving the estimated amount in the notice, the warrant and estimated amount

shown shall have the same effect as any other warrant issued under this subsection. If the employer does not make a showing to the satisfaction of the secretary that

the estimated amount is incorrect within thirty days after the warrant is filed with

the county clerk, then the estimated amount shown in the warrant shall be and become

the amount of the contribution due for the period stated in the warrant. The sheriff to whom any warrant, issued under this section, is directed shall, within

five days after receipt of the same, file with the county clerk of the sheriff's county

a copy thereof, for which the clerk shall make no charge, and thereupon the county

clerk shall record the same upon the clerk's records and the day when such copy is

filed. Thereupon the amount of the warrant so filed and entered shall become a lien upon

all property, real and personal, of the person against whom it is issued, including

choses in action, except negotiable instruments not past due; provided, however,

that such lien shall be inferior to all other valid liens, encumbrances, mortgages,

judgments and assessments that are filed or placed of record prior to the filing of

such warrant. The sheriff or a representative of the division thereupon shall levy upon any property

of the taxpayer, including negotiable instruments, and the property so levied on shall

be sold in all respects with the like effect, and in the same manner as is prescribed

by law with respect to executions against property upon judgments of a court of record,

and the remedies of garnishment shall apply. Whenever any property or right to property upon which levy has been made is not

sufficient to satisfy the claim for which levy is made, the sheriff or a representative

of the division may thereafter, and as often as may be necessary, proceed to levy

in like manner upon any other property or rights to property subject to levy of the

person against whom the claim exists, until the amount due from the person is fully

paid. The sheriff shall be entitled to the general fees for services in executing the

warrant as now allowed by law for like services, to be collected in the same manner

as now provided by law for like services. All costs of executing warrants including mileage of the sheriff serving and executing

the same and all other costs in connection with the levy, including advertising or

publication costs upon the sale of any property levied upon, shall be collected by

the department from the employer from whom contribution is due. C. In the event of any distribution of an employer's assets pursuant to an order of

any court under the laws of this state, including any receivership, assignment for

benefit of creditors, adjudicated insolvency, composition or similar proceeding, contributions

then or thereafter due shall be paid in full prior to all other claims except taxes

and claims for remuneration of not more than two hundred fifty dollars ($250) to each

claimant, earned within six months of the commencement of the proceeding. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension

proposal, or composition, under the Federal Bankruptcy Code 11 U.S.C. Sec. 101 et seq., contributions then or thereafter due shall be entitled to such priority as is provided

in the Federal Bankruptcy Code U.S.C. Title 11, Sec. 507 . D. If, not later than four years after the date on which any contributions or interest

thereon are paid, an employing unit that has paid such contributions or interest makes

application for an adjustment in connection with subsequent contribution payments

or for a refund because such adjustment cannot be made, and the secretary determines

that such contributions or interest or any portion was erroneously collected, the

secretary shall allow the employing unit to make an adjustment, without interest,

in connection with subsequent contribution payments by the employing unit, or if such

adjustment cannot be made, the secretary shall refund the amount, without interest,

from the fund to which the amount was deposited. For like cause and within the same period, adjustment or refund may be so made on

the secretary's own initiative. E. Any person, group of individuals, partnership or employing unit that acquires the

organization, trade or business or substantially all the assets thereof from an employer

shall notify the division in writing by registered mail not later than five days prior

to the acquisition. Unless such notice is given, such acquisition shall be void as against the division,

if, at the time of the acquisition, any contributions are due and unpaid by the previous

employer, and the secretary shall have the right to proceed against such employer

either in personam or in rem and the assets so acquired shall be subject to attachment

for such debt.