Balderas, 041015 NMAGO, IAL 04102015

Docket Nº:IAL 04102015
Case Date:April 10, 2015
Court:New Mexico
The Honorable Kelly Fajardo
IAL 04102015
New Mexico Attorney General Opinion
Attorney General of New Mexico
April 10, 2015
          HECTOR H. BALDERAS Attorney General           ELIZABETH A. GLENN Chief Deputy Attorney General          The Honorable Kelly Fajardo          New Mexico State Representative          1125 North Molina          Belen, N.M. 87002          Re: Opinion Request - Municipality's Authority to Impose a Technology Infrastructure Fee          Dear Representative Fajardo:          You requested our advice regarding whether the Village of Los Lunas is authorized to impose a technology infrastructure fee on utility customers. Specifically, you asked:
1. Is the Village of Los Lunas authorized to adopt a technology infrastructure fee by ordinance?
2. If yes, may the governing body place a question on the municipal election ballot allowing the voters to vote on the adoption of the ordinance and imposition of the specified fee?
3. If the answer to 2 is no, is there a method for the governing body to place the question on the municipal election ballot?
         As discussed below, we conclude:
1. If the proposed technology infrastructure fee constitutes a tax, the Village may be authorized to impose it under Section 3-18-2 of the Municipal Code..
2. Section 3-18-2 permits a municipality to impose an excise tax if the products or services to be taxed are specifically named in the authorizing ordinance and the ordinance is approved by a majority of the municipality's voters.
         Your request suggested that the Village of Los Lunas is exploring the option of imposing a "technology infrastructure fee that would be collected from all utility customers on a monthly basis to help fund a public wifi system and other technology related projects." Before determining whether the Village is authorized to impose this fee, we examine whether the proposed fee constitutes a "tax."          The New Mexico Supreme Court has recognized that "[a] tax is a charge imposed that is not...

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