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HomeMy WebLinkAboutOrdinance-1986-0650INTRODUCED BY COUNCILMEMBER ORDINANCE NO. 650 Series of 1985 TITLE: AN ORDINANCE REPEALING AND REENACTING, WITH AMENDMENTS, CHAPTER 21, TAXATION, ARTICLE 1, RETAIL SALES, OF THE CODE OF LAWS OF THE CITY OF WHEAT RIDGE NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, THAT: Section 1. Chapter 21, Taxation, Article 1, Retail Sales, of the Code of Laws of the City of Wheat Ridge is hereby repealed and reenacted, with amendments, as follows: Section 21-1. Definitions. As used herein, the following words and phrases shall have the following meanings: Access Service: "Access Service" means any charge by local telephone exchange companies to providers of telecommunications services for the latter's use in providing telecommunications services. Charitable Organization: "Charitable organization" means those organizations which exclusively, freely, and voluntarily minister to the physical, mental, or spiritual needs of an indefinite number of persons and by so doing lessen the burdens of government. City: "City" means the City of Wheat Ridge, Colorado. Computer Software: "Computer Software" means the internalized instruction code which controls the basic operations (i.e., arithmetic and logic) of the computer, causing it to execute instructions contained in system programs, as an integral part of the computer. It is not normally accessible or modifiable by the user. A software program is one in which instructions and routines (programs) are determined necessary to program the customer's electronic data processing equipment to enable the customer to accomplish specific functions with his EDP system. The software may be in the form of: 1) Systems programs (except for the instruction codes which are considered tangible property in this definition) programs that control the hardware itself and allow it to compile, assemble and process application programs. 2) Applications programs programs that are created tc perform business functions, or control, or monitor processes. 3) Pre-written (canned) programs that are either systems programs or application programs and are not written specifically for the user. 4) Custom programs created specifically for the user. Local Exchange Company: "Local Exchange Company" means any person which provides public telephone or telecommunication exchange access lines, mobile telecommunications or channels necessary to effect the transfer of two-way voice or data grade information between the final user and the local telecommunications network. Mobile Machinery: "Mobile Machinery" means those vehicles, self-propelled or otherwise, which are not designed primarily for the transportation of person or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for transportation of persons or cargo, but which have been redesigned or modified by the mounting thereon of special equipment or machinery, and which may be only incidentally operated or moved over the public highways. This definition includes, but is not limited to, wheeled vehicles commonly used in the construction, maintenance and repair of roadways, the drilling of wells, and the digging of ditches. Newspaper: "Newspaper" means (a) a publication printed on newsprint, intended for general circulation, and published regularly at short intervals, containing information and editorials on current events and news of general interest; or (b) publications which meet the requisites of a legal newspapers as provided in Section 24-70-101 et seq., C.R.S. Non-Resident Vendor: "Non-resident Vendor" shall mean any retailer/vendor whose place of business is located outside the city. Person: "Person" shall mean any individual, firm, co-partnership, joint venture, corporation, estate or trust, receiver, trustee, assignee, lessee or any person acting in fiduciary or representative capacity, whether appointed by a court or otherwise, and any group or combination acting as a group and the plural as well as singular number. Purchase Price: "Purchase Price" means the price or cost to the user or consumer exclusive of any direct tax imposed by the federal and state governments and those imposed by this article, inclusive of sales by exchange for property, less the fair market value of property exchanged. Retail sale: "Retail sale" means any sale, except sale for resale, within the city. The phrases "retail sales," "to engage in the business of sales at retail" and "on the purchase price 2 paid or charged upon all sales and purchases of tangible personal property at retail within the city of Wheat Ridge," as used in the sentence and paragraph structure in this article, shall relate to retail sales as defined hereby. Retailer/vendor: "Retailer" and "vendor" shall mean a person doing a retail business, 'mown to the trade and public as such, and selling to the user or consumer, and not for resale. Sale: "Sale" shall mean the exchange of property for property as well as for money, including installment and credit sales, conditional or otherwise, leases of personal property, and also including the sale of electrical energy, natural and manufactured gas, telephone and telegraph communication service, and carriage of televised visual and audio messages by wire or cable. Sales Tax Inspector: "Sales Tax Inspector" shall mean the City Treasurer, or other person or person designated by him, and shall likewise refer to the sales tax auditor or administrator. Storage: "Storage" means the keeping or retention of, or exercise of dominion or control over, or possession of tangible personal property under lease or purchase at retail within or without the city from a vendor. Tangible Personal Property: "Tangible Personal Property" shall mean any corporeal personal property which is in any manner perceptible to the senses. Tax: "Tax" means the tax payable as provided in this article by the purchaser of a commodity or service subject to tax, or the aggregate amount of taxes due from the retailer or vendor for taxable sales during a collection and reporting period applicable as required herein. Taxable Sales: "Taxable Sale" means the sale to the user or consumer, exclusive of exempt sales as provided in this article. Taxpayer: "Taxpayer" means any person obligated to account to the Treasurer for taxes collected or to be collected under the terms of this article. Telecommunications Service: "Telecommunication Service" means the transport of signs, signals, writing, images, sounds, messages, data, or other information of any nature by wire, radio, light waves, electromagnetic, digital, or electronic means. Treasurer: "Treasurer" shall mean the City Treasurer, or his designee, including, not by way of limitation, the building inspector and the sales tax inspector. 3 Use: "Use" means the exercise, for any length of time, by any person within the city, of any right, power, or dominion over tangible personal property by lease or purchase. Wholesale Sale: "Wholesale Sale" means a sale by wholesalers to retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers for resale and does not include a sale by wholesalers to users or consumers not for resale; and the latter sales shall be deemed retail sales, and subject to the provisions of this article. Wholesaler: "Wholesaler" means a person doing a regular organized wholesale or jobbing business, known to the trade as such, selling to retailers. Section 21-2. License - Required to engage in retail sales. (a) It shall be unlawful for any person to engage in the business of retail sales within the city, on and after the effective date of this article, without first having obtained a license therefor, which license shall be granted at no charge and issued by the treasurer upon the filing of an application in the form prescribed by the sales tax auditor. Such license shall be in force until revoked, suspended, or transferred as hereinafter provided. A license shall be applied for and issued for each location if more than one location is used by the applicant in the conduct of business of sales at retail. (b) The Treasurer shall make available to any requesting vendor a map/location guide showing the boundaries of the city. For transactions consummated on or after January 1, 1986, the requesting vendor may rely on such map/location guide and any update thereof made available to such vendor in determining whether to collect a sales or use tax. No penalty shall be imposed or action for deficiency maintained against such a vendor who in good faith complies with the most recent map/location guide available to it. Section 21-3 Same - Transfer; revocation. A license issued hereunder designating the place of business may be transferred to a new location by the filing with the treasurer of a notice of location change. In case a licensee shall sell his business, the then-existing license shall become void and a new license shall be issued by the treasurer for the location of the business upon the filing of an application for license by the new owner. The sales tax inspector shall have the power, at any time, upon violation by any holder of a license as provided for in this article of any of the regulations lawfully prescribed hereunder, or for violation of any provisions of the Code of the city or the Colorado state statutes, to suspend or revoke any such license after ten days notice and a hearing before the Treasurer. Any device or method employed by the 4 holder of a license to evade the payment of the tax provided for by this article shall be sufficient cause for revocation. Section 21-4. Sales tax - Property and service subject to tax. There is hereby levied and there shall be collected and paid a tax in the amount stated in section 21-7 as follows: on all sales and services taxable by the State of Colorado under the sales tax provisions of the Colorado Revised Statutes 1973, section 39-26-104, as amended, including, but not limited to, the following: (a) On the purchase price paid or charged upon all sales and purchases of tangible personal property at retail within the city, except as the purchase price is reduced by an allowance for an exchange of tangible personal property, at fair market value, and which is intended to be offered for resale. (1) When a trade-in of tangible personal property is received by a retailer upon the sale of tangible personal property, the tax imposed shall be based upon the purchase price of the tangible personal property sold, less trade-in allowance, provided the property taken in trade is to be resold in the usual course of the retailer's trade or business. (b) There shall be levied a tax upon telecommunications services, except access services as designated in section 21-5(i)(11), whether furnished by public or private corporations or enterprises for all interstate and intrastate telecommunications service originating from or received on telecommunications equipment in this city and the charge for the service is billed to a person in this city or billed to an affiliate or division of such person in any state/city on behalf of a person in this city. (c) Upon the charge within the city for electrical energy and natural or manufactured gas sold for domestic or commercial consumption and not for resale. (d) Upon the amount paid for all meals, foods, beverages, liquors served in or by restaurants, cafes, lunch counters, cafeterias, hotels, drugstores, social clubs, nightclubs, cabarets, resorts, snack bars, caterers, carry-out shops, and other like places of business at which prepared food or drink is regularly sold, including sales from pushcarts, motor vehicles, and other mobile facilities. (1) Cover charges shall be included as part of the amount paid for such food or drink. However, meals provided to employees of the places mentioned in this paragraph (d) at no charge or at a reduced charge and which are considered as part of their salary, wages, or income shall be exempt from taxation under the provisions of this article. 5 (e) On the purchase price paid for sales of tangible personal property at retail to national banking associations and banks organized and chartered under the laws of the State of Colorado, for use within the city. (f) Machinery, machine tools and specific processing equipment and repair parts and replacements thereof, exclusively and directly used in manufacturing or processing tangible personal property. (g) On the entire amount charged for clothing purchased at retail. (h) Upon "used merchandise" which has previously been purchased and which has been remanufactured or rebuilt and, as so remanufactured or rebuilt, been sold to a subsequent owner. (i) Upon farm equipment not titled or registered as a motor vehicle. (j) On the design, development, writing, translation, fabrication, maintenance, lease, or transfer of computer program (software) services. Section 21-5. Same Exempt Sales. There shall be exempt from taxation under the provisions of this article the items of sales and services exempt from taxation by the state under the sales tax provisions of the Colorado Revised Statutes 1973, section 39-26-114, including, but not limited to, the following: (a) All sales to the United States government, to the State of Colorado, its departments and institutions, and the political subdivisions thereof in their governmental capacities only. (b) All sales to religious, charitable and eleemosynary corporations, in the conduct of the regular religious, charitable and eleemosynary functions and activities providing such organization holds an exemption letter/certificate pursuant to C.R.S. X39-26-114. (c) All sales which the city is prohibited from taxing under the constitution or laws of the United States or the State of Colorado. (d) All sales of cigarettes. (e) All charges for rooms and accommodations (see Chapter 21-53; Lodger's tax). (f) All sales of commodities which are taxed under the provisions of the Colorado Motor Fuel Tax of 1933. 6 (g) Newspapers as legally defined in Colorado Revised Statutes 1973, section 24-70-102, as amended. (h) Every vendor selling items otherwise taxable, but exempted by Colorado Revised Statutes 1973, section 39-26-114(7), as amended, for sales through vending machines shall nonetheless register all vending machines with the Treasurer and pay the sales tax provided in section 21-4 on all property sold for a price of more than thirty cents in the coin-operated vending machines, unless otherwise exempt by this ordinance. (i) Additional provisions of exemption from the tax under this article: (1) All sales of tangible personal property if both the following conditions exist: the sales are to those who reside or do business outside the city for their use outside the city, and the article or commodity is delivered to the purchaser by common carrier, by mail or conveyed by the seller. (2) All sales of tangible personal property to a public utility doing business both within and outside the city, for use in its business outside the city, even though sale and/or delivery thereof is made within the city. (3) All sales of farm machinery, machinery parts, livestock, poultry, and livestock and poultry feeds and drugs, seeds and fertilizers to purchasers for use outside the city even though sale and/or delivery is made within the city, except that trucks of one-ton manufacturer-rated capacity or less and lawn and garden tillers, mowers and renovators are not to be considered as farm machinery. (4) All permits, licenses, service charges, fines and assessments, for benefit or penalty, charged by and in accordance with the Code of the City of Wheat Ridge. (5) All sales of personal property, provided that such sales are infrequently conducted, that the sale occurs at the residence of the owner, that the property to be sold was originally purchased for use by members of the household (i.e., garage sales, yard sales, etc.). (6) All sales by churches, clubs, lodges, parent-teacher organizations or other religious, charitable or eleemosynary organizations chartered by the State of Colorado as nonprofit corporations, provided that such sales are conducted for a period not to exceed three days during any calendar year and that all funds derived from such sales are used for the activities of the organization conducting the sale. 7 (7) Tangible personal property purchased or leased from a vendor by a person engaged within the city in the business of manufacturing for wholesale sale or compounding for wholesale sale, when such tangible personal property is an article, substance or commodity which becomes an ingredient or component part of the product manufactured, which product is itself tangible personal property, and the container, label, and shipping case thereof. (8) The exemption stated herein shall not include natural gas and/or electricity used in the processing or manufacturing of goods or commodities or substances. (9) All sales of drugs dispensed in accordance with a prescription, all sales of insulin in all its forms dispensed pursuant to the direction of a licensed physician, and all sales of prosthetic devices. (i) A "prescription" means any order in writing, dated and signed by a practitioner, or given orally by a practitioner, and immediately reduced to writing by the pharmacist, assistant pharmacist, or pharmacy intern, specifying the name and address of the person for whom a medicine, drug, or poison is ordered and directions, if any, to be placed on the label. (ii) A "prosthetic device" is an artificial part which aids or replaces a bodily function and which is designed, manufactured or adjusted to fit a particular individual. The foregoing definitions also apply to prescription drugs and prosthetic devices for animals. (10) The sale of construction and building materials, as the term is used in section 29-2-109, C.R.S., if such materials are picked up by the purchaser and if the purchaser of such materials presents to the retailer a building permit or other documentation acceptable to the City evidencing that a local use tax has been paid or is required to be paid in another city. (11) "Access Services" by local telephone exchange companies to providers of telecommunication service for use in providing such service shall be deemed to be wholesale sales and shall be exempt from taxation under this section. (12) All sales of electrical energy and natural or manufactured gas sold for direct use in the commercial growth, for sale whether wholesale or retail, of plants and flowers. Section 21-6. Same - Disputes - Refunds - Limitation of Actions. (a) Should a dispute arise between the seller and purchaser as to whether or not any purchase, storage, use or consumption of q a service or commodity is exempt under this article, nevertheless the seller shall collect and the purchaser shall pay such tax, and the seller shall thereupon issue to the purchaser an appropriate receipt showing the details of the transaction. Refunds may be applied for by submittal to the treasurer on forms prescribed and furnished by the sales tax auditor within sixty days of the date of purchase in instances of dispute, unintentional payment of tax on exempt purchases, or an overpayment of taxes reported and paid by any taxpayer to the treasurer. The treasurer shall forthwith, after receipt of the application for refund, submit same to the sales tax auditor for a determination of applicability. The treasurer shall disburse to the applicant a refund when such has been approved by the sales tax auditor, or notify the applicant in instances of disapproval by the sales tax auditor. (b) An application for refund of sales or use tax paid by a person who establishes that a tax was paid by another on a purchase, storage, use, or consumption made on behalf of a person entitled to an exemption and that a refund has not been granted to the person making the purchase, storage, use, or consumption, or of tax monies paid in error or by mistake, shall be made within three years after the date of purchase, storage, use, or consumption of the goods for which the refund is claimed. (c) All claims for refund shall be processed in the manner provided in section 21-20. Section 21-7. Same - Schedule. There is hereby imposed a tax on all sales of commodities and services specified in section 21-4 and not otherwise exempted in section 21-5, in the amount of two percent of the purchase price. In order to avoid fractions of pennies, the following brackets shall be applicable to all taxable transactions: (a) On sales amounting to $0.19 to and including $0.84, a tax of ........................$0.01 (b) On sales amounting to $0.85 to and including $1.18, a tax of ........................$0.02 On sales in excess of one dollar, the tax shall be two cents on each full dollar of the sales price, plus the tax shown on the above schedule for the applicable fractional part of a dollar of each such sale price. Section 21-8. Same - Liability of retailer or vendor for collection. Every retailer, vendor and wholesaler shall be liable for the collection of the tax as provided for in this article for sales at retail to the user or consumer, by adding the tax imposed hereby or the average equivalent to the sale price or 9 charge as a separate and distinct item, and when added, such tax shall constitute a part of such total price or charge and shall be a debt from the consumer or user to the vendor until paid and shall be recoverable at law in the same manner as other debts. It shall be unlawful for any vendor to absorb or advertise the intent to absorb the tax imposed by the provisions of this article, or to directly or indirectly reflect in any manner that the total of the charge including the tax is not greater than the total of the charge would be if the tax was not imposed. Section 21-9. Same - Reports by vendor, payment of tax; monies collected to be held in trust. (a) Every vendor shall be liable as a taxpayer and responsible for the reporting to the treasurer and paying the tax at the rate of two percent of the net total of taxable sales or charges for service during the reporting period, plus any overage of collections of tax on sales or charges for service resulting from the use of the bracket system herein prescribed, less two percent of such total of the two, to cover the taxpayer's cost of collection and reporting. This two percent vendor's fee is disallowed on any delinquent report. A reporting period shall be monthly for vendors exceeding a $100 tax liability per month, quarterly for a vendor with less than $300 in tax liability per quarter, and annual only upon approval of the sales tax inspector. A report shall be made and tax paid under the provisions of this article on or before the twentieth day of the month following the reporting period. A report shall be made for each place of business if more than one location is used in the business of sales at retail within the city. (b) All monies paid by the purchaser to the retailer as taxes imposed by this Chapter shall be and remain the property of the city while in the hands of the retailer. Until paid to the treasurer, the monies shall be held in trust by the retailer for the sole use and benefit of the city. Failure by the retailer to pay the monies to the treasurer shall be a violation of this Code. Section 21-10. Sales or use tax - Delinquencies - Penalties and interest. (a) The treasurer shall, as soon as practical after receipt of a taxpayer's report, recompute the tax by the use of known and visible factors and if the resulting recomputed tax is less than that shown and paid by the taxpayer, the difference shall be credited toward the taxpayer's obligation for the next reporting period. If the recomputed tax is more than that shown and paid by the taxpayer, the difference shall be recorded as a deficiency. The taxpayer shall be notified of the deficiency as provided in section 21-20. Willful disregard of the requirements for reporting, and remittance of tax due, or failing to respond within ten days to the treasurer's notice of deficiency, shall, in addition to constituting a violation of this Code, subject the taxpayer to penalties and interest provided in this section. 10 (b) If a person neglects or refuses to make a return in payment of the sales tax or to pay any tax as required, the sales tax inspector shall make an estimate, based upon such information as may be available, of the amount of taxes due for the period for which the taxpayer is delinquent and may add thereto a penalty equal to the greater of fifteen dollars or ten percent of the amount of the delinquency and interest on such delinquent taxes at the rate imposed under subsection (d) of this section plus one-half percent per month from the date when due, not exceeding eighteen percent in the aggregate per annum. (c) If a person neglects or refuses to make a return in payment of the use tax as required, the sales tax inspector shall make an estimate, based upon such information as may be available, of the amount of taxes due for the period for which the taxpayer is delinquent and may add thereto a penalty equal to ten percent thereof and interest on such delinquent taxes at the rate imposed under subsection (d) of this section, plus one-half of one percent per month from the date when due. (d) The annual rate of interest on delinquent taxes under subsections (b) and (c) above shall be that established by the state commissioner of banking pursuant to section 39-21-110.5, C.R.S. Section 21-11. Use Tax - Property subject to tax. (a) It is hereby declared to be the legislative intent of the city council that for the purposes of this article every person who, on and after the effective date of this article, stores, uses, distributes or consumes within the city any article of tangible personal property purchased at retail, and not stored or distributed in the normal function of wholesaling, is exercising a taxable privilege and shall be taxed therefor at the rate specified in section 21-13 hereof. It is hereby declared that every resident of the city or any person doing business within the city who purchases or leases tangible personal property for use, storage or consumption within the city from sources outside the city and taxable hereunder, and who has not paid the tax imposed by this article, shall make an application, file a return and pay the tax to the treasurer. The use, storage or consumption of tangible personal property includes for the purpose of this article materials, commodities and items of tangible personal property affixed to or made a part of facilities and structures on real property owned or leased within the city. (b) For purposes of this article, the storage of any article of tangible personal property, other than any construction and building materials purchased at retail and any motor and other vehicles purchased at retail on which registration is required, is subject to the provision that any article of tangible personal property located within the city for a continuous period of longer than sixty days shall be presumed 11 to be in use or consumption rather than in storage and shall be subject to any applicable use tax the incidence of which tax shall apply from the date of the property's acquisition, subject to rebuttal as provided in subparagraph (1) of this subsection. (1) The taxpayer may rebut such presumption by satisfactory evidence that: (i) Such property is in fact in storage for use or consumption outside the jurisdiction of the city; and (ii) The taxpayer is doing business in another local jurisdiction and the nature of the taxpayer's business is such that storage is likely to occur for future use in another local jurisdiction. (2) For purposes of this section, storage ends and a taxable incident occurs when the property is taken out of storage and placed into use or is consumed. Such use or consumption includes removal from storage and being made available for immediate or subsequent use or consumption at will, even if the use or consumption is not completed within the city. (c) Taxation of Leases. (1) In the case of any payment under a lease of thirty days or less, or in the case of any payment during the first thirty days of a lease or longer than thirty days, the sales tax on any lease payment shall be paid by the lessee and shall be remitted by the lessor to the city providing delivery of the property to the lessee occurs in the city. In the case of any payment after the first thirty days, the sales tax on any lease payment shall be paid by the lessee and shall be remitted by the lessor to the city providing the property is located in the city at the time the payment is due. (2) Payment and remittance of sales tax to the city pursuant to subparagraph (1) above shall be made on each payment made under the lease, including but not limited to each payment under any option to purchase contained in the lease, each payment for termination of the lease, and each payment for purchase of the leased property if the same is sold to the lessee after termination of the lease, regardless of the subsequent location of the property. 12 (3) The city will collect use tax only from the lessee and only on any lease pa yment which is due when the property is located wi thin the jurisdiction of the city. Such collection of use tax on a lease payment shall be subject to the credit provisions of section 21 -11(d). (4) Any applicable use tax shall be imposed on the lessee and not on the lessor. (5) Any applicable use tax shall be based upon the full purchase price of the prop erty. (6) If a lease is renewed, it shall be treated in the same manner as provided in this section. (d) Use Tax - Credit for Sales or Use Tax Previously Paid to Another Municipality. The City's use tax shall not apply to the storage, use, or consumption of any article or tangible personal property the sale or use of which has already been subjected to a sales or use tax of another statutory or home rule municipality legally imposed on the purchaser or user equal to or in excess of two percent. A credit shall be granted against the city's use tax with respect to the person's storage, use, or consumption in the city of tangible personal property, the amount of the credit to equal the tax paid by him by reason of the imposition of a sales or use tax of the previous statutory or home rule municipality on his purchase or use of the property. The amount of the credit shall not exceed two percent. (e) Use Tax - Nonapplicability to Use or Consumption Occurring More Than Three Years After Most Recent Sale. The City's use tax shall not be imposed with respect to the use or consumption of tangible personal property within the city which occurs more than three years after the most recent sale of the property, if, within the three years following such sale, the property has been significantly used within the state for the principal purpose for which it was purchased. "Significant use" shall be determined in the discretion of the sales tax inspector on a case-by-case basis. (f) Use Tax - Proration as Applied to Certain Construction Equipment. (1) Construction equipment located within the boundaries of the city for a period of more than thirty consecutive days shall be subjected to the full applicable use tax of the city. (2) Construction equipment which is located within the boundaries of the city for a period of thirty 13 consecutive days or less shall be subjected to the city's use tax in an amount which does not exceed the amount calculated as follows: the purchase price of the equipment shall be multiplied by a fraction, the numerator of which is one and the denominator of which is twelve, and the result shall be multiplied by two percent. (3) where the provisions of subsection (f)(2) of this section are utilized, the credit provisions of this section shall apply at such time as the aggregate sales and use taxes legally imposed by and paid to other statutory or home rule municipalities on any such equipment equal two percent. (4) In order to avail himself of the provisions of this section, the taxpayer shall comply with the following procedure: (i) Prior to or on the date the equipment is located within the boundaries of the city, the taxpayer shall file with the city an equipment declaration on a form provided by the city. Such declaration shall state the dates on which the taxpayer anticipates the equipment will be located within and removed from the boundaries of the city, shall include a description of each such anticipated piece of equipment, and shall include such other information as reasonably deemed necessary by the city. (ii) The taxpayer shall file with the city an amended equipment declaration reflecting any changes in the information contained in any previous equipment declaration no less than once every ninety days after the equipment is brought into the boundaries of the city or, for equipment which is brought into the boundaries of the city for a project of less than ninety days duration, no later than ten days after substantial completion of the project. (iii) The taxpayer need not report on any equipment declaration any equipment for which the purchase price was under $2,500. (5) If the equipment declaration is given as provided in subsection (f)(4) of this section, then as to any item of construction equipment for which the customary purchase price is under $2,500 which was brought into the boundaries of the city 14 temporarily for use on a construction project, it shall be presumed that the item was purchased in a jurisdiction having a local sales or use tax as high as two percent and that such local sales or use tax was previously paid. In such case the burden of proof in any proceeding before the city, the Executive Director for the Department of Revenue, or the district court, shall be on the city to prove such local sales or use tax was not paid. (5) If the taxpayer fails to comply with the provisions of subsection (f)(4) of this section, the taxpayer may not avail himself of the provisions of subsection (2) of this section and shall be subject to the provisions of subsection (1) of this section (f). However, substantial compliance with the provisions of subsection (4) of this section shall allow the taxpayer to avail himself of the provisions of subsection (2) of this section (f). Section 21-12. Same Exemptions. There shall be exempt from the tax provided in section 21-11, the storage, use, distribution and consumption of the following: (a) Any personal property on which a sales tax has been paid to the city. (b) Tangible, personal property, which if it were sold at retail within the city, would be exempt from sales tax under the provisions of section 21-5, with the exception of disposable medical accessories, including, but not limited to, hypodermic syringes and needles or related accessories. (c) Tangible personal property brought into the city by a nonresident for his own use, storage, or consumption while temporarily within the city. (d) Tangible personal property of a resident which was acquired prior to his becoming a resident. (e) Tangible personal property purchased or leased from a vendor by a person engaged within the city in the business of manufacturing for wholesale sale or compounding for wholesale sale, when such tangible personal property is an article, substance or commodity which becomes an ingredient or component part of the product manufactured, which product is itself tangible personal property, and the container, label, and shipping case thereof. 15 (f) Any right to the continuous possession or use for three years or less of any article of tangible personal property under a lease or contract, only if the lessor has sought and been granted permission from the city to pay and has paid to the city a sales or use tax on such tangible personal property upon its acquisition. If such permission has not been sought or granted pursuant to this section the provisions of section 21-11(c) shall apply. (1) With regard to the right to the continuous possession or use for three years or less of any article of tangible personal property under a lease or contract, the lessor shall collect and remit sales tax on each lease payment received on such property, subject to the provisions of this section. (2) Where the lessor does not lease tangible personal property in the ordinary course of business and wishes to engage in a one-time transaction with respect to an article of tangible personal property, he may request permission from the city to pay a sales or use tax on such article of tangible personal property upon its acquisition, and the city may grant such permission. Section 21-13. Same - Rate of tax; date due, form of return; periodic reporting and payment authorized; no building permit or certificate of occupancy until paid; deficiency, penalty. (a) Every purchaser, personal property, and eve shall be taxed pursuant to at the rate of two percent personal property not made Section 21-12 hereof which consumed within the city. consumer, user, owner or lessee of ry owner or lessor of real property, the provisions of section 21-11 hereof of the purchase price of any item of exempt from taxation pursuant to is stored, used, distributed, or (b) On or before the thirtieth day of the month following the month of purchase of, or the month of commencement of use or storage of, tangible personal property which is taxable under the provisions of this article, every person or entity subject to, and liable for payment of the taxes hereby imposed shall complete and return to the treasurer, on a form prescribed by and acceptable to the treasurer, a schedule of personal property subject to said tax, and shall at the same time pay the tax imposed hereby. (c) Upon the prior written appro shall be evidenced by said treasurer's endorsed by the taxpayer, any taxpayer and pay accrued taxes at intervals not year, in lieu of reporting and payment occurrence of each taxable event. val of the treasurer, which signature on an agreement may file periodic reports greater than once per of taxes upon the 16 (d) No building permit shall be issued to any person who is purchasing, using, storing or consuming materials or other items, or who intends to purchase, use, store or consume materials or other items, for the purpose of building, adding onto, or otherwise making improvements to any real property within the city unless and until provision is made pursuant to this subsection for the payment to the city of the tax imposed hereby. Any person applying for any such building permit shall elect to comply with, and shall thereafter strictly comply with, either of the following procedures: (1) Upon submission by a person of an application for a building permit to the building inspector, said building inspector shall, using the valuation tables codified in section 5-81 of this code, estimate the costs to complete said building or other improvements for which said building permit is sought. Upon completion of said estimate, the applicant for said building permit shall remit to the building inspector, as the agent of the treasurer, the tax imposed hereby, an amount equal to two percent of fifty percent of the total estimated cost derived by the building inspector. Upon payment of this sum by applicant to the building inspector, applicant shall be entitled to present to the treasurer receipts evidencing the retail value of the items or materials purchased, used, consumed or stored, and subject to taxation hereunder. In the event the total tax thereby determined to be owed to the city is less than the amount previously paid to the city to allow issuance of the building permit, taxpayer shall be entitled to a refund of the difference between the amount previously paid and the amount subsequently determined to be owed. In the event, however, the tax so determined to be owed is greater than the amount paid at the time of issuance of the building permit, the taxpayer shall forthwith pay the additional tax owed to the city. (2) In the event an applicant desires not to pay the estimated tax pursuant to the procedure provided for in paragraph (1) above, the following procedure shall be followed: Upon submission by a person of an application for a building permit to the building inspector, said building inspector shall, as the agent of the treasurer, procure the signature of applicant on a written agreement, prepared by and on a form acceptable to the treasurer, obligating applicant to comply with the procedures of subsection (b) of this section 21-13, which agreement shall expressly provide for the issuance of a stop-work order by the building 17 inspector upon failure of applicant/taxpayer to return the forms and make the payments required hereby. Notwithstanding any provision of this Code to the contrary, no certificate of occupancy shall be issued by the building inspector unless and until all taxes imposed hereby have been received by the city. (e) Interest charges for deficiency and interest and penalty charges for failure to report and pay the taxes as orescribed in section 21-10 hereof shall be likewise applicable to the tax due under this section 21-13. Section 21-14. Non-Resident Vendor. (a) It shall be unlawful for any nonresident vendor to engage in business in the city without first having obtained a license in accordance with section 21-2. Any nonresident vendor engaged in business in the city shall have the same tax liability and responsibility for reporting and collecting the city use tax on sales to city residents as a resident vendor has with respect to sales tax pursuant to this chapter. (b) For purposes of this section, a nonresident vendor engages in business in the city when selling, leasing, or conducting any activity in connection therewith in the city for the use, storage, consumption or distribution of taxable personal property with the city. This term shall include, but not be limited to: (1) The maintaining, within the city, directly, indirectly, or by a subsidiary, of an office, salesroom, warehouse, or other place of business. (2) The soliciting, by salesmen, representatives or agent of business, from persons residing in the city and, by reason thereof, receiving orders therefrom. (3) The purchasing or leasing of tangible personal property by such persons residing in the city for use, storage or consumption in the city, and the tangible personal property so ordered, purchased, or leased actually coming to rest for any length of time in the city and becoming a part of the mass of property of the city as a result thereof. (c) In the event that the sales tax inspector has reasonable cause to believe that a nonresident vendor is engaged in business in the city without first having obtained a license, he may schedule a hearing before the treasurer or his designee, upon not less then ten days' written notice to the nonresident 18 vendor, to determine whether or not such vendor is engaged in business within the city, and order shall issue, directing the vendor to obtain a license or cease doing business in the city, which order shall be appealable to the district court in accordance with law. (d) In the event that a nonresident vendor fails to comply with such order and continues to engage in business in the city, the sales tax inspector may seize and impound any personal property of the vendor, or his agent, located in the city and used in any manner in furtherance of or to facilitate the transaction of the vendor's business in the city. The vendor shall be notified of the impoundment and shall have the right to demand an administrative hearing to be held not later than five working days from the date of seizure, unless the vendor requests a later date. The hearing officer at such hearing shall determine only whether or not the impounded property was used in furtherance of or to facilitate the transaction of business by the vendor in the city. If no hearing is demanded or if a hearing is held and it is determined that the property was so used, it shall be held until the vendor has obtained a license. If it is determined at the hearing that the property was not so used, it shall be released forthwith. The determination of the hearing officer shall be appealable to the district court pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. (e) If the vendor fails to apply for a license within the thirty days from the date of impoundment, the sales tax inspector may estimate the taxes due in accordance with section 21-18 and collect such taxes pursuant to this article from the proceeds of the impounded property. Section 21-15. Motor Vehicles. (a) No motor vehicle, defined as any vehicle, including any device in or upon which any person or property is or may be transported or drawn upon a public highway, road or street, or any device used or designed for aviation or for flight in the air and upon which a specific ownership tax is imposed by the state, which is purchased by a resident of the city or other person for use within the city, shall be registered in Jefferson County, nor shall title to a motor vehicle as defined herein be transferred within Jefferson County by the county clerk of the respective county, if the tax imposed by the provisions of this article has not been paid. (b) The determination of the address of registration for the purpose of establishing liability under this article for sales or use taxes on motor and other vehicles required to be registered shall be made by considering the following factors: (1) the address of the taxpayer's voter registration, if any; 19 (2) the location of school registration of the taxpayer's children, if any; (3) the address where the vehicle is normally parked or stored as shown on the vehicle registration, insurance policy, application for vehicle registration; and (4) the location where the vehicle is customarily or usually parked, stored, or garaged. Section 21-16. Burden of proof as to exemption; keeping of records. (a) The burden of proving that any person is exempt from taxation or any article or commodity is exempt under the provisions of this article shall be upon the person asserting the claim for exemption. It shall be the duty of every person engaging or continuing in business within the city or otherwise subject to the tax under the provisions of this article or a person requiring a license under section 21-2 or 21-14 hereof to keep and preserve suitable records of all sales and transactions as may be necessary from time to time to determine the applicability of the provisions of this article thereto, and to keep such invoices, sales memoranda, books and records for a period of three years; and they shall be open at any time for examination by the sales tax inspector or his agents. Failure to keep and preserve suitable records as required by this section shall be a violation of this code. (b) Required records need not be stored or kept within the city, but it they are not, they must be, upon request of the sale tax inspector, produced for inspection either at the taxpayer's place of business within the city or at the Wheat Ridge City Hall no later than fourteen days from the date of request. (c) When the sales tax inspector has scheduled an audit or examination of the records required herein not less than fourteen days in advance, and has so notified the vendor or taxpayer, and the taxpayer fails to make available the records required hereunder at the appointed time, he shall pay to the city costs of twenty-five dollars; provided, however, that costs shall not be assessed if: (1) A postponement is approved by the sales tax inspector, for good cause shown, not less than seven days before the scheduled audit; or (2) Sufficient notice is given within seven days that the sales tax inspector is able to schedule and conduct an audit of another taxpayer at the appointed time in lieu thereof. 20 Section 21-17. Sale of business. Any vendor who shall sell out his business or stock of goods or shall quit his business shall be required to file a report or return and remit the tax due thereon from all retail sales within ten days after the date of the sale o.1 the business or stock of goods or quitting of the business. Action by the city against the former owner shall not prohibit the exercise by the city of the tax lien provisions stated herein. Section 21-18. Refusal to report; estimate of tax; emergency collection procedures. (a) In the event any taxpayer: (1) Refuses to report in accordance with the provisions of this article; (2) Fails to comply with the provisions of section 21-13 of this article; (3) Who, being the seller of a business, fails to file the report and remit the taxes required in section 21-17 of this article; (4) Intends to leave the city without paying any taxes which are lawfully owed; (5) Removes, or intends to remove, property subject to tax hereunder from the city, or to sell any such property with the intent to remove the proceeds of sale from the city without paying tax thereon; or (6) Engages or intends to engage in any activity which the treasurer reasonably believes to jeopardize collection of taxes authorized hereunder Thereby prohibiting the establishment by the treasurer of an accurate and exact amount of tax due, the treasurer may, in any reasonable manner possible, estimate the amount of tax due, to which interest at the rate of one percent per month from the date the tax was due and a penalty of ten percent of the amount of tax and interest shall be added. (b) When an estimate of taxes is made, the sales tax inspector shall serve notice thereof on the taxpayer by personal service, certified or registered mail, or by leaving a copy with the person in charge at the taxpayer's business establishment or last known address. Unless the taxpayer files a written demand for administrative hearing and determination of tax liability, as provided in section 21-20 hereof, within ten days from the date of receipt of such notice, he shall conclusively be deemed to have accepted the estimate as a fair and accurate determination 21 of his tax obligation and shall thereby waive the right to contest that determination. In the event that such a hearing is held, the determination of the hearing officer shall be reviewable as provided in section 21-20 hereof. (c) In any case wherein it appears that collection of revenues from taxes lawfully imposed hereby is in jeopardy, the treasurer may immediately issue demand for payment. Upon issuance of said demand for payment, the tax required therein shall be due and payable, and the treasurer may proceed forthwith to collect said taxes by any lawful means, including, not by way of limitation, filing of liens upon the property subject to tax, issuance and execution of distraint warrants, or filing of summons and complaint in any competent court; provided, however, that collection under this section 21-18 may be stayed upon the provision by taxpayer to the treasurer of such security as, in the opinion of the treasurer, shall be satisfactory to insure payment to the city of all taxes lawfully owed by taxpayer. Section 21-19. Limitation of action. (a) No sales or use tax, or interest thereon or penalties with respect thereto, shall be assessed, nor shall any notice of lien be filed, or distraint warrant issued, or suit for collection be instituted, nor any other action to collect the same be commenced, more than three years after the date on which the tax was or is payable nor shall any lien continue after such period, except for actual or estimated taxes assessed before the expiration of such period, notice of lien with respect to which has been filed prior to the expiration of such period, in which case such lien shall continue only for one year after the filing of notice of lien with respect to which has been filed prior to the expiration of such period. (b) In the case of a false or fraudulent return with intent to evade tax, or in the case of a failure to file a return, the tax together with interest and penalties thereon may be assessed, or proceedings for the collection of such taxes may be begun at any time. (c) Before the expiration of such period of limitation, the taxpayer and the treasurer may agree in writing to an extension thereof and the period so agreed on may be extended by susbsequent agreements in writing. Section 21-20. Taxpayer's remedies. (a) For transactions consummated on or after January 1, 1986, when the city asserts that sales or use taxes are due in an amount greater than the amount paid by a taxpayer, the city shall mail a deficiency notice to the taxpayer by certified mail. The deficiency notice shall state the additional sales and use taxes due. The deficiency notice shall contain notification, in clear and conspicuous type, that the taxpayer has the right to elect a 22 state hearing of the deficiency pursuant to 29-2-106.1(3), C.R.S. As used in this section, "state hearing" means a hearing before the executive director of the department of revenue or delegate thereof as provided in 29-2-106.1(3), C.R.S. (b) In the event that the taxpayer disputes the tax liability imposed by any deficiency notice, he shall file a written demand for an administrative hearing and determination of tax liability within ten (10) days of receipt of the notice, which demand will stay the sale under any distraint warrant until the conclusion of the hearing. This demand shall include the name, business address and license number of the taxpayer, a copy of the notice sent by the city, the taxable periods and the amounts of tax which are being disputed, and a statement of the grounds upon which the taxpayer bases his claim. Upon receipt of the taxpayer's written demand, the city treasurer shall set the time and place for the hearing, to be held as quickly as possible, and shall appoint as the hearing officer any qualified person who has education or experience in tax administration matters and who can render a proper decision. In the event that it is determined at the hearing that the taxpayer's liability is less than the amount in the possession of the treasurer, such excess shall be paid to the taxpayer forthwith. Failure to demand an administrative hearing and termination of tax liability shall constitute a waiver of the right to contest such liability; however, when such determination is requested or when a request for a refund is timely made, the final decision rendered therein shall be appealable as provided herein. (c) The hearing provided in subsection (b) shall be informal and no transcript, rules of evidence, or filing of briefs shall be required, but the taxpayer may elect to submit a brief, in which case the city may submit a brief. The city shall hold such hearing and issue the final decision thereon within ninety days after the receipt of the taxpayer's written request therefor, except the city may extend such period if the delay in holding the hearing or issuing the decision thereon was occasioned by the taxpayer, but, in any such event, the city shall hold such hearing and issue the decision thereon within one hundred eighty days of the taxpayer's request in writing therefor. (d) If the dispute was not resolved by the informal hearing, the taxpayer may elect one of the following avenues of appeal within thirty days of the city's final decision: (1) The taxpayer may request a formal hearing on the record before a city hearing officer, which shall be held within sixty days of the taxpayer's request. Any appeal from the decision rendered after such formal hearing shall be pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. 23 (2) If the deficiency notice or claim for refund involves only the city, the taxpayer may appeal such deficiency or denial of a claim for refund to the district court of the County of Jefferson as provided in C.R.S. §29-2-106.1(8). (3) The taxpayer may elect a state hearing on the deficiency or denial of claim pursuant to C.R.S. X29-2-106.1(3). (e) The taxpayer shall have no right to any form of appeal if he has not exhausted his administrative remedies or if he fails to request a hearing within the time period provided in this subsection. For purposes of this subsection, "exhaustion of administrative remedies" means: (1) The taxpayer has timely requested in writing a hearing before the city and the city has held such hearing and issued a final decision thereon or (2) The taxpayer has timely requested in writing a hearing before the city and the city has failed to hold such hearing or has failed to issue a final decision thereon within the time periods provided in subparagraph (c) above. (f) Except in the event that the taxpayer elects the avenue of appeal specified in subsection (d)(1) above, the taxpayer shall post a bond or other security as required by state law as a condition precedent to exercising his right to appeal. Section 21-21. Additional remedies of city. (a) Any sales or use tax imposed by this article, together with the interest and penalties herein provided and the cost of collection which may be incurred by the city, shall be and, until paid, remain a first and prior lien upon: (1) the goods, stock-in-trade, and business fixtures of or used by any retailer under lease, title-retaining contract or other contractual arrangement; and (2) the real and personal property owned or leased by any person, and shall take precedence on all such property over other claims and mortgages. Any new owner or successor of a business or stock-in-trade shall be required to withhold sufficient of the purchase money, if any, to cover the amount of tax due until such time as the former owner shall produce a receipt from the treasurer showing the tax paid in full or a certificate showing no taxes dues. Anyone who takes title to or possession of a business, fixtures, or stocks by purchase, foreclosure, or otherwise, takes same subject to the lien for delinquent tax and shall be liable for the payment thereof to the extent of the tax, interest, penalties, and collection costs, but not to exceed the value of the property so taken or acquired. Any person who takes title to or possession of any real property upon which a use tax is owed takes said property subject to the 24 lien for said delinquent tax and shall be liable for payment thereof to the extent of the tax, interest, penalties and collection costs. (b) The lien provided herein may be foreclosed by seizing under distraint warrant and selling so much of the property covered by the lien as may be necessary to discharge said lien. Such distraint warrant may be issued by the treasurer whenever the taxpayer or vendor is in default on the payment of sales or use tax, interest and penalty, and may be served and the goods or property subject to such liens seized and sold by the treasurer or any member of the city police department. (c) Goods or property seized pursuant to distraint warrant shall be sold at public auction after ten days' public notice by publication not less than two times in a newspaper of general circulation within the city. Such goods or other property whether real or personal may be redeemed by the taxpayer any time prior to sale by paying such tax, penalty, and interest as is due, together with such costs as have accrued from the seizure and preparation for sale. (d) A notice of lien shall be served on the taxpayer and a copy of such notice shall be filed in the real estate records of Jefferson County prior to the issuance of a distraint warrant. (e) In lieu of seizure of property pursuant to a distraint warrant, the treasurer may cause a civil action to be filed in the district court of Jefferson County to enforce the city's lien for such tax upon the real property situated in that county or in any other county in the state which may be subject to such lien or to subject any real property or any right, title, or interest in real property to the payment of such tax. The court shall adjudicate all matters involved in such action and may decree a sale of the real property and distribute the proceeds of such sale according to the findings of the court in respect to the interest of the parties and of the city. The proceedings in such action and the manner of sale, the period for and manner of redemption from such sale, and the execution of a deed of conveyance shall be in accordance with the law and practice relating to foreclosures of mortgages upon real property. In any such action, the court may appoint a receiver of the real property involved in such action if equity so requires. (f) Recovery of Unpaid Tax by Action of Law: (1) The treasurer may also treat any such taxes, penalties or interest due and unpaid as a debt due the city from the taxpayer. (2) In case of failure to pay the taxes, or any portion thereof, or any penalty or interest thereon, when due, the treasurer may recover at law the amount of such taxes, penalties and 25 interest in any county or district court of the county wherein the taxpayer resides or has his principal place of business having jurisdiction of the amounts sought to be collected. (3) The return of the taxpayer or the assessment made by the city, as herein provided, shall be prima facie proof of the amount due. (4) No such civil action may be filed by the city until the time for the taxpayer to exercise his administrative remedies or to file an appeal has expired. (5) This remedy shall be in addition to all other existing remedies available to the city. Section 21-22. Administration, duties of treasurer. The administration of sections 21-1 through 21-21 is vested in and shall be exercised by the treasurer, who shall prescribe forms and reasonable rules and regulations in conformity with said sections for the making of returns and reports, ascertainment and collection of the tax imposed hereunder, and for the proper administration and enforcement of said sections. Section 21-23. Legislative intent. The purpose of this Chapter is to provide the power necessary to exercise effectively the right to raise revenue that is essential to home rule and self-government. Any similarities to state law herein are adopted for the purpose of promoting efficiency in the collection of revenue. Regardless of any such similarity, the provisions contained herein are matters of solely local concern. Section 2. Safety Clause. The City Council hereby finds, determines, and declares that this ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public, and that this ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the ordinance bears a rational relation to the proper legislative object sought to be attained. Section 3. Severability. If any clause, sentence, paragraph, or part of this ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect application to other persons or circumstances. Section 4. This ordinance shall take effect 15 days after final publication. 26 INTRODUCED, READ, AND ADOPTED on first reading by a vote of _ 6 to 0 on this 9th day of December , 1985, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for January 13 , 1986, at 7:30 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado READ, ADOPTED, AND ORDERED PUBLISHED on second and final reading by a vote of 8 to 0 this 13th day of January , 1986. SIGNED by the Mayor on this 14th day of January 1986. ATTEST: Wanda Sang, City C1 rk 1st Publication: 12/12/1985 2nd Publication: 1/23/1986 Wheat Ridge Sentinel: Effective Date: January 1, 1986 Frank Stites; Mayor APPROVED A T ;FOR BY Y ORNE CTT OFFICE 7 John Hayes 27 Y: