IAL 121107.

• Case Date: December 11, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. IAL 121107. December 11, 2007IAL 121107The Honorable Joni Marie GutierrezNew Mexico State Representative P.O. Box 842Mesilla, NM 88046 Re: Opinion Request - County Regional Spaceport Gross Receipts TaxDear Representative Gutierrez: You requested our advice regarding the collection of Dona Ana County's regional spaceport gross receipts tax. We understand that your request stems from Dona Ana County's enactment of the tax, the proceeds of which are to be distributed, in part, to a regional spaceport district. No regional spaceport district exists at this time, but the Taxation and Revenue Department ("TRD") is required, by law, to begin enforcing and collecting the tax on January 1, 2008. See NMSA 1978, § 7-20E-3(B). Based on these circumstances, you ask:

1. Must the collection of Dona Ana County's regional spaceport gross receipts tax begin on January 1, 2008 even though no regional spaceport district will exist at that time to receive the tax proceeds?

2. May TRD defer enforcement of Dona Ana County's tax ordinance until a regional spaceport district is formed?

As discussed in more detail below, we conclude that the county regional spaceport gross receipts tax may not be imposed, collected or enforced absent the formation of a regional spaceport district to which the proceeds of the tax can be allocated. The Regional Spaceport District Act ("RSD Act") was enacted in 2006. See 2006 N.M. Laws, ch. 15, §§ 1-13, codified at NMSA 1978, 5-16-1 to -13 (2006). The Act's express purposes include: "allow[ing] multi-jurisdictional cooperation in the creation of a southwest regional spaceport" and "foster[ing] tourism in the cities and counties comprising the district." NMSA 1978, § 5-16-2(B), (D). Section 5-16-4 of the RSD Act governs the creation of a regional spaceport district. It provides, in pertinent part, that "[a] combination may create a regional spaceport district by contract." NMSA 1978, § 5-16-4(A). A "combination" is "two or more governmental units that exercise joint authority." NMSA 1978, § 5-16-3(D). For purposes of the Act, a "governmental unit" that may join a combination is "the state, a county or a municipality of the state or an Indian nation, tribe or pueblo located within the boundaries of the state." Before entering into a contract establishing a district, a governmental unit must hold "at least three public hearings." NMSA 1978, § 5-16-4(C). Copies of the contract, the district's bylaws and operating procedures are filed with the Spaceport Authority, which issues a certificate to the district. NMSA 1978, § 5-16-4(A). Once certified by the Spaceport Authority, the district "shall constitute a separate political subdivision of the state. . . ." Id. The RSD Act provides that a regional spaceport district "has no direct taxation authority." NMSA 1978, § 5-16-9. Revenue for a district is generated under...