HomeMy WebLinkAboutOrdinance-1986-0696INTRODUCED BY COUNCILMEMBER Johnson
ORDINANCE NO. 596
Series of 1986
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
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT
RIDGE, COLORADO:
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of the Code of Laws of the City of Wheat Ridge is hereby repealed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:
Auction: "Auction" means any sale conducted or transacted
at a permanent place of business operated by an auctioneer, or a
sale conducted and transacted at any other location where
tangible personal property is sold by an auctioneer when such
auctioneer when such auctioneer is acting either as agent for the
owner of such personal property or is in fact the owner thereof.
For purposes of this Chapter, the auctioneer at any sale defined
in this Subsection is a retailer or vendor and the sale made by
him is a retail sale as defined herein, and the business
conducted by the auctioneer in accomplishing such sale
constitutes the transaction of a business, except when the
auctioneer is action as an agent for a duly licensed retailer or
vendor when selling any tangible personal property which is
exempt.
Automotive Vehicle: "Automotive Vehicle" means any vehicle
or device in, upon, or by which any person or property is or may
be transported or drawn upon a public highway, or any device used
or designed for aviation or flight in the air and upon which a
specific ownership tax is imposed by the State of Colorado .
Automotive vehicle includes, but is not limited to, motor
vehicles, trailers, semi-trailers, mobile homes, mobile machinery
or self-propelled construction equipment, as defined by the
Colorado Revised Statutes for purposes of the imposition of
specific ownership taxes and the registration of such vehicles or
aircraft. Automotive vehicle shall not include devices moved by
human power or used exclusively upon stationary rails or tracks.
Carrier Access Service: "Carrier 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" is an
organization which, consistently with existing laws and for the
benefit of an indefinite number of persons, freely and
voluntarily ministers to the physical, mental, or spiritual needs
of persons, and thereby lessens the burdens of government, which
has applied for, been assigned, and furnished to the City a copy
of their State of Colorado Certificate of Exemption.
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
are considered tangible property
that control the hardware itself
assemble and process application
2) Applications programs
perform business functions, or c
for the instruction codes which
in this definition) programs
and allow it to compile,
programs.
programs that are created to
ontrol, 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.
Customer Access Service: "Customer Access Service" means
any direct charge by local telephone exchange companies to
the consumer.
Gross Taxable Sales and Services: "Gross Taxable Sales and
Services" means the total amount received in ;money, credit,
property or other consideration valued in money from sales,
leases, rentals and purchases at retail within the City, and
taxable under the provisions of this Chapter, and shall include
the cost of goods purchased tax free by the taxpayer or taken
from his stock and used or consumed by him personally or used by
him in the rendering of a service.
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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. The term newspaper
may not be extended to include: magazines, trade publications or
journals, credit bulletins, advertising pamphlets, circulars,
directories, maps, racing programs, reprints, newspaper clipping
and mailing service or listings, publications that include an
updating or revision service, books or pocket editions of books
or other newspapers not otherwise qualifying under this
Subsection.
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.
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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
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/vendor" means any person
selling, leasing or a person doing a retail business, known to
the trade and public as such, making sales to a purchaser, or
leasing or renting to a purchaser or consumer at retail and not
for resale, in the City or elsewhere, of tangible personal
property or services subject to the tax imposed by this Chapter
for use, storage, distribution or consumption within the City.
To prevent evasion and to provide for more efficient
administration, the term prevent evasion and to provide for more
efficient administration, the term "retailer" shall include any
salesman, representative, peddler or canvasser, whom, s an agent,
directly or indirectly of the dealer, distributor, supervisor or
employer under whom he operates or from whom he obtains the
tangible personal property or services sold by him, makes sales
or tangible personal property or services subject to the tax
imposed herein; and in such event the agent shall be responsible
for the collection and payment of the tax imposed, including but
not limited to, whenever the principal of such agent refuses to
become licensed as a vendor hereunder.
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, and telecommunications service.
Sales Tax: "Sales Tax" means the tax levied on all sales,
leases and rentals at retail on the basis of the purchase or sale
price of purchases of tangible personal property and specific
services taxable hereunder.
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.
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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.
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.
Use Tax: "Use Tax" means the tax levied upon the privilege
of using, storing, distributing or otherwise consuming tangible
personal property and taxable services which property or service
is purchased, leased or rented at retail and not subjected to the
wheat Ridge Sales Tax, without regard to whether the property or
service is purchased either from sources within or without the
City.
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
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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) 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
holder of a license to evade the payment of the tax provided for
by this article shall be sufficient cause for revocation.
(b) Continued operation/use of the license after revocation
shall constitute a violation of this Chapter.
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:
The sale, purchase, lease, rental, or grant of license for
use of tangible personal property, and any subsequent lease,
rental, or sale of tangible personal property by any person to
any consumer or purchaser, regardless of whether the person
purchasing the subsequently leasing, renting or selling the
personal property paid the tax imposed on his initial purchase
and use of the property so acquired which is subsequently leased,
rented, or sold. When a retail sale involves the exchange or
trade-in of property, the tax shall be collected on the purchase
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price paid or charged, including the fair market value of the
property exchanged or traded-in at the time and place of exchange
or trade-in.
(b) There shall be levied a tax upon telecommunications
services, except carrier 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 if 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 or city on
behalf of a person utilizing a service address within this city.
For purposes of this section "telecommunication service" includes
the installation of any telecommunications equipment or
apparatus. A credit shall be allowed to the extent provided in
section 21-11(d) for any telecommunications services subject to
the tax herein that are also subject to a sales tax outside of
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) Meals furnished in any restaurant, eating house, hotel,
motel, drugstore, club, resort or other place as follows:
(1) on the selling price of meals, whether sold to the
public or to employees.
(2) on the cost of meals which are given to employees
in return for their labor or services rendered or otherwise given
away.
(3) 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.
(e) Pay, cable or subscription television services
sold, purchased, leased, rented, furnished, or used, including
charges for service connections, installations, connection
charges and all and any other similar charges made for such
services.
(f) Every retailer or vendor vending items of tangible
personal property through coin-operated vending -machines shall be
taxable and such retailer or vendor shall pay retail sales or use
tax at the rate specified in Section 21-7 on the tangible
personal property sold or vended in the coin-operated machine
unless the sale shall be otherwise exempt as provided in this
Chapter. Owners of vending machines that vend articles of
tangible personal property are subject to sales or use tax on the
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cost of the vending machines; provided that owners of coin
operated devices that do not vend articles of tangible personal
property are not subject to the sales or use tax on the cost of
such devices; instead, the utilization of such machines are
considered short term rentals of tangible personal property and
the gross receipts are subject to the sales tax.
(g) 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.
(h) Machinery, machine tools and specific processing
equipment and repair parts and replacements thereof, exclusively
and directly used in manufacturing or processing tangible
personal property.
(i) On the entire amount charged for clothing purchased at
retail.
(j) 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.
(k) Upon farm equipment not titled or registered as a motor
vehicle.
(1) On the design, development, writing, translation,
fabrication, maintenance, lease, or transfer of computer program
(software) services.
(m) On the total lease or rental charges for storage
lockers/units.
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 direct 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 direct sales, except of building materials
and supplies as specified in Section 21-13, to charitable
corporations, as defined in Section 21-1 in the conduct of their
regular religious, charitable and elemosynary functions and
activities. Any exempt organization which makes sales of
tangible personal property to the public and which otherwise
meets the definition of a retailer as set forth herein must have
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a sales tax license and collect and remit tax in the same manner
as any other retailer. The fact that the merchandise sold may
have been acquired by gift or donation, or that the proceeds are
to be used for charitable purposes, does not make the sales
exempt from tax.
(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) Motor fuel upon which there has been accrued or has
been paid either the gasoline tax or special fuel tax required by
Article 27 of Title 39, C.R.S., and which is not subject to
refund.
(g) Consideration received for labor or services sold,
except those specific services defined as taxable, if such
services are separately stated from the tangible personal
property sold. Manufacturing or fabrication labor is not exempt.
(h) Newspapers as defined in C.R.S. 24-70-102.
(i) Construction and building materials, 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 on the
materials.
(j) Tangible personal property or the furnishing of
services if the transaction was previously subjected to a sales
or use tax, lawfully imposed on the purchaser or user by another
municipality, equal to or in excess of the rate established
pursuant to Section 21-7. A credit shall be granted against the
City's sales tax with respect to such transaction equal to
the lawfully imposed local sales or use tax previously paid by
the purchaser or user to the previous municipality. The amount
of the credit shall not exceed the rate established pursuant to
Section 21-7.
(k) The sale price of property returned by the purchaser
when the full sale price including the tax levied is refunded,
either in cash or by credit.
(1) Discounts from the original selling price if such
discount or decrease in purchaser price and the corresponding
decrease in sales tax due is actually passed on to the consumer.
An anticipated cash discount to be allowed for payment on or
before a given date is not an allowable adjustment to the selling
price in determining gross taxable sales on any vendor's return
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prior to the date when the customer actually receives the
discount. Any adjustments in sale price such as allowable
discounts, rebates, and credits cannot be anticipated and the tax
must be based upon the original selling price unless such
adjustments have actually been made prior to the filing of the
return wherein such sale is reported; except that, if the price
upon which the tax was computed and paid to the City by the
vendor is subsequently readjusted, prior to the payment of the
tax by the purchaser, a property credit may be taken against the
tax due on the next subsequent return.
(m) 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) (a) All wholesale sales or sales of tangible personal
property purchased for resale.
Sales of tangible personal property to a person engaged
in manufacturing or compounding for sale shall be deemed a
wholesale sale when it meets all of the following conditions:
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(i) The property is transformed in fact by the process
of manufacture;
(ii) The property becomes by the manufacturing
processes a necessary and recognized ingredient,
component and constituent part of the finished product;
and
(iii) The physical presence of the property in the
finished product is essential to the use thereof in
the hands of the ultimate consumer.
(b) Sales of tangible personal property for use as
containers, labels, and shipping cases to a person
engaged in manufacturing or compounding for sale shall
be deemed to be a wholesale sale when it meets all of
the following conditions:
(i) The property is used by the manufacturer or
compounder to contain or label the finished product so
manufactured or compounded;
(ii) The property is sold by the manufacturer or
compounder along with and as a part of the finished
product; and
(iii) The property is not returnable to the
manufacturer for reuse.
(7) The fair market value of any exchanged or traded-in
property which is to be resold thereafter in the usual
course of the retailer's business, if included in the
full price of an article sold.
(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
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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) "Carrier 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
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.
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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.
(a) 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
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.
(b) Except provided in Subsections (1) and (2) of this
Section, it shall be unlawful for any retailer to advertise
or hold out or state to the public or to any consumer, directly
or indirectly, that the Wheat Ridge Sales tax or any part thereof
shall be assumed or absorbed by the retailer, or that it will not
be added to the selling price of the property sold, or if added,
that it or any part thereof shall be refunded. Any person
violating any provision of this Section shall be subject to the
penalties provided in this Chapter.
(1) Nothing contained in this Section shall be deemed
to prohibit any retailer selling malt, vinous or
spirituous liquors by the drink from including in his
sales price any Wheat Ridge Sales Tax.
(2) Nothing contained in this Section shall be deemed
to prohibit any owner or operator of vending machines
or coin-operated devices from including in his sales
price any Wheat Ridge Sales Tax.
(3) No retailer shall advertise or hold out to the
public in any manner, directly or indirectly, that the
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tax levied by this chapter is not considered as an
element in the sales price to the consumer.
(c) The amount of gross sales which are represented by
accounts not secured by a conditional sales contract or
chattel mortgage and which are found to be worthless
and are actually and properly charged off as bad debts
for the purpose of the income tax imposed by the laws
of the State of Colorado may be credited upon a
subsequent payment of the tax herein. However, if any
such accounts are hereafter collected by the taxpayer
the tax shall be paid upon the amount so collected.
Provided, such credit shall not be allowed with respect
to any account or item therein arising from the sale of
any article under a conditional sales contract or other
title retention agreements for all or part of the
purchase price or from the sale of any article when the
seller takes a chattel mortgage on the tangible
personal property to secure all or part of the purchase
price.
(d) The amount paid by the purchaser as, or in the nature
of, interest or finance charges on credit extended in
connection with the sale of any tangible personal
property, if the interest or finance charges are
separately stated from the consideration received for
the tangible personal property transferred in the
retail sale, and if included in the report of gross
sales and services, are deductible from the gross sales
and services.
(e) If any vendor shall, during any reporting period,
collect as a tax an amount in excess of the percentages
set forth in Section 21-7 of his total taxable sales,
he shall remit to the City Treasurer the full net
amount of the tax herein imposed, and also such excess.
The retention by the retailer to vendor of any excess
tax collections or the intentional failure to remit
punctually to the City Treasurer the full amount
required to be remitted by the provisions of this
Chapter is hereby declared to be a violation of this
Chapter.
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
14
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. Timely filing shall be evidenced by the
postmark date. 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 - Deficiency.
(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 section 21-18(d).
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
15
facilities and structures on real property owned or leased
within the city.
(b) Acquisition of business: The Wheat Ridge use tax
shall be remitted on the price paid for tangible personal
property which is acquired with the purchase of a business,
and for use in the operation of a business. The tax shall be
based on the price paid for such chattels as recorded in the
bill of sale or agreement and constituting a part of the total
transaction at the time of the sale or transfer, provided the
valuation is as great or greater than the fair market value of
such merchandise or chattels. Where the transfer of ownership is
a package deal made by a lump sum transaction, the use tax shall
be paid on the book value established by the purchaser for income
tax depreciation purposes, or fair market value if no
determination has been made. When a business is taken over in
return for the assumption of outstanding indebtedness owed by
former owners, the tax shall be paid on the fair market value of
all taxable tangible personal property acquired by the purchaser.
Such tax shall be reported on the intitial use tax return and
remitted on or before the twentieth day of the month following
the date of sale. Timely remittance shall be evidenced by
the postmark date.
(c) 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
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
16
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.
(3) The city will collect use tax only from the lessee
and only on any lease payment which is due when
the property is located within 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 property.
(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 sales and 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
17
legally imposed on the purchaser or user equal to or in excess of
two percent (2%). 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 (2%).
(e) Use Tax - Nonapplicability to Use or Consumption
Occurring More Than Three Years After Most Recent Sale.
The City's u
the use or consumption
city which occurs more
sale of the property,
sale, the property has
for the principal purp
"Significant use" shal
sales tax inspector on
se tax shall not be imposed with respect to
of tangible personal property within the
than three (3) years after the most recent
if, within the three years following such
been significantly used within the state
ose for which it was purchased.
1 be determined in the discretion of the
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 (30) 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 (30)
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 (2%)
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
(2%) 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,
18
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 (90) 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 (90) days duration, no
later than ten (10) 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
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.
(6) 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 M.
19
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 tangible personal property or taxable services upon
which the City retail sales tax has been paid to a vendor
authorized and licensed to collect the same.
(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) 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. Provisions Relative to Building materials and
supplies.
(a) Every person who builds, constructs, reconstructs,
alters, expands, modifies or improves any building, dwelling, or
20
other structure or improvement to real property in the City,
including all Federal, State, County, exempt institutions or
private construction job sites, who is required to obtain a
building permit for such activity, and who purchases lumber,
fixtures, or any other building materials and supplies used
therefore, or any other article or articles of any tangible
personal property used therein, and every owner or lessee of
realty or improvements thereon situate in this City, upon which
any article or articles of tangible personal property acquired
from sources within or without the City, are installed, attached
or affixed, shall pay a use tax in either of two (2) ways:
(1) By determining an estimated amount of the total
cost of construction as established by the City Building
inspector_ and stated on the building permit and multiplying that
value by fifty percent (50%). This shall establish an estimated
value upon which the City sales or use tax shall be computed
and collected, either through the owner, lessee or general
contractor. The term "cost of construction" shall include
the cost of interior decoration but shall not include land cost;
or
(2) By obtaining a City sales and use tax license and
making monthly reports and returns and remitting the tax on an
actual cost basis.
(b) City Treasurer or his authorized agent subsequently may
conduct an audit to recompute the tax by comparing the estimated
value of the building materials and supplies used therefore and
the articles of tangible personal property used therein to the
actual cost of the same. If the recomputed tax is greater than
that shown and paid by the taxpayer, the taxpayer shall be
notified of the deficiency in the manner set forth in Section
21-20.
(c) No final inspection shall be made by the City Building
Inspector, and no certificate of occupancy shall be issued unless
all taxes due as provided in this Chapter, on all lumber,
fixtures, and any other building materials and supplies used in
or connected with the construction, reconstruction, alteration,
expansion, modification, or improvement of any building,
dwelling, or other structure or improvement to real property
within the City have been paid or arrangement therefor made with
the City Treasurer. In addition to the previously stated
authority of the Chief Building Inspector, said Chief Building
Inspector is expressly authorized to issue "Stop Work orders"
upon discovery of the failure or refusal of a person subject to
the use tax hereby imposed to remit the same or work adequate
arrangements for remitting said use taxes.
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
21
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, "Engaged in business in
the City" means the selling, leasing, renting, delivering or
installing in the City of tangible personal property or taxable
services by a retail sale as defined in this Section for
purchase, use, storage, distribution, or consumption within the
City. This term shall include, but shall not be limited to the
following acts or methods of transacting business:
(1) Maintaining within the City, directly indirectly
or by a subsidiary, an office, distributing house,
sales room or house, warehouse or other place of
business.
(2) Soliciting, either by direct representatives,
indirect representatives manufacturers' agents or
by distribution of catalogues or other
advertising, or by use of any communication media,
or by use of the newspaper, radio or television
advertising media, or by any other mans
whatsoever, of business from persons residing in
the City, and by reason thereof receiving orders
from, or purchasing, leasing, or renting tangible
personal property or taxable services to such
persons residing in the City or selling, leasing
or renting for use, consumption, storage or
distribution in the City.
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 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.
(c) 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
22
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.
(d) 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 pursuant to the criteria established in
C.R.S. 42-6-137:
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.
23
(b) Required records need not be stored or kept within the
city, but if 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.
Section 21-17. Transfer of ownership of Business; Renewal,
Transfer or Issuance of Business License:
(a) Any retailer who shall sell out his business or stock
of goods, or shall quit business shall be required to file a
final return as provided in this Chapter within ten (10) days of
the date of the sale of his business or stock of goods or of
quitting business.
The purchaser of any business shall be responsible for
determining whether any sales or use tax including penalties and
interest, is owed for that business and shall withhold a
sufficient amount from the purchase money to cover the amount of
all outstanding sales and use tax due the City, including any
penalties and interest, until such time as the former owner shall
produce a receipt from the City Treasurer showing that the taxes,
and any penalties and interest, have been paid or a certificate
that no taxes, penalties or interest are due. if the purchaser
of a business or stock of goods fails to withhold the purchase
money as provided in this Section, and the taxes, penalties or
interest are due and unpaid after the ten (10) day period allowed
he, as well as the vendor, shall be personally liable for the
payment of the taxes, penalties and interest unpaid by the former
owner. Likewise, anyone who takes any stock of goods or business
fixtures of or used by a retailer under lease, installment sales
contract, or other contract arrangement, by purchase, foreclosure
sale, or otherwise, shall be liable for the payment of all
delinquent sales and use taxes on the value of property so taken
or acquired.
24
(1) The seller or his agent will be held liable for
sales and use tax remittance on the sale of
business in the event the purchaser fails to remit
the tax due on the purchaser.
(2) The Wheat Ridge use tax shall be remitted on the
price paid for tangible personal property and
taxable services which are purchased to establish
a new business or business location within the
City. Such tax shall be reported on the initial
use tax return and be remitted on or before the
twentieth day of the month following the opening
day of business. Timely filing shall be evidenced
by the postmark date.
Section 21-18. Refusal to report; estimate of tax;
emergency collection procedures; penalties
and interest calculated; fraud
(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 penalties and interest in accordance with (d) of this
section will be added.
(b) When an estimate of taxes is made, the sales tax
inspector shall serve notice thereof on the taxpayer by personal
25
service, certified or registered mail to the taxpayer's last
known address, or by leaving a copy with the person in charge at
the taxpayer's business establishment or last known address.
In the event that the taxpayer cannot be found at its last known
address or notices sent by the city are returned by the post
office, no further attempts at providing notice shall be required.
The burden shall at all times be on the taxpayer to inform the
city of the taxpayer's current 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 (10) 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 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.
(d) When a sales and use tax deficiency exists from
under reporting or failure to pay due to negligence or a knowing,
intentional disregard of the provisions of this Chapter or rules
and regulations promulgated thereunder, without the intent to
defraud, penalty and interest shall be assessed as follows:
(1) For transactions consummated prior to January 1,
1986, the penalty shall be twelve percent (12%) of
the delinquent tax or deficiency. Interest shall
be one percent (1%) of the delinquent tax or
deficiency per month from the date due.
(2) For transactions consummated on or after January
1, 1986: Penalty shall be fifteen dollars ($15.00)
or ten percent (108) of the delinquent sales tax
or deficiency, whichever is greater. Interest
shall be the rate imposed under Subsection (a) of
this Section plus one-half percent (1/2%) per
month from the date when due: except that all
interest shall not exceed eighteen percent (18%)
per annum.
26
(a) For transactions consummated on or after
January 1, 1986, the annual rate of interest
assessed pursuant to this Section shall be
the rate established by the State
Commissioner of Banking Pursuant to Section
39-21-110.5, C.R.S.
(e) Penalty for Fraud: For transactions consummated on or
after January 1, 1986, if any part of delinquent tax or
deficiency is due to fraud with the intent to evade the tax, the
penalty shall be fifty percent (50%) of the total amount of the
deficiency. The City Treasurer shall mail a written notice of
assessment to the taxpayer. The amount of the tax due, including
the penalty and interest, shall become due and payable within ten
(10) days after the notice of assessment is mailed by the
Treasurer. Interest shall be one (1%) per month of the tax due
from the date the tax was due until paid. For transactions
consummated on or after January 1, 1986, penalty and interest
shall be assessed at the rate specified in (d)(2) and (d)(2)(a)
of this section.
(f) Special Penalty for Enforcement Proceedings: When any
person liable for the payment for a tax imposed by this Chapter
has repeatedly failed, neglected or refused to pay the tax within
the time specified for such payments, and the Treasurer has been
required to exercise enforcement proceedings against the taxpayer
three (3) or more times to collect such taxes due, the treasurer
is hereby authorized to assess and collect the amount of such
taxes due together with all the interest and penalties thereon
provided by law and also an additional amount equal to fifteen
percent (15%) of the delinquent taxes or deficiency, interest and
penalties due, or the sum of twenty five dollars ($25.00)
whichever amount is greater.
(g) City Treasurer May Waive Penalty: For good cause
shown, the Treasurer is authorized to waive any penalty assessed
in this Chapter. For purposes of this Chapter interest shall
never be deemed a penalty.
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.
(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,
27
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
subssequent agreements in writing.
(d) The period of limitation provided herein shall not run
against the City for an audit period if written notice is given
to the taxpayer prior to the expiration of the statute of
limitations that the latter's records will be audited pursuant to
this chapter. "Audit Period" is the thirty six (36) month
reporting period preceding thee date of the notice of audit.
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
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.
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(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 (180) 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.
(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. X29-2-106.1(8).
(3) The taxpayer may elect a state hearing on the
deficiency or denial of claim pursuant to C.R.S.
§29-2-106.1(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
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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.
(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.
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(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
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.
(g) Whenever the business or property of any taxpayer
subject to this Chapter is subject to receivership, bankruptcy of
assignment for the benefit of creditors, or seized under
distraint for property taxes, all taxes, penalties and interest
imposed by this Chapter and for which the taxpayer is in any way
liable under the terms of this Chapter shall be a prior and
preferred lien against all the property of the taxpayer. No
sheriff, receiver, assignee or other officer shall sell the
property of any person subject to this Chapter under process or
order of any court, without first ascertaining from the City
Treasurer the amount of any taxes due under this Chapter. If any
tax is due, the officer shall pay the amount of the taxes out of
the proceeds less costs before making payment to any judgment
creditor or other claimants. For the purpose of this Section,
the term "taxpayer" shall include "retailer".
(h) Violations; Summons and Complaint; Penalty: It shall
be a violation of this Chapter to refuse to make any return
provided to be made in this Chapter, or to make any false or
fraudulent return, or any false statement in any return, or to
fail or refuse to make timely payment to the City Treasurer or
his authorized agent of any taxes collected or due to the City,
or in any manner to evade the collection and timely payment of
the tax, or any part thereof, imposed by this Chapter, or for any
person or purchaser to fail or refuse to pay such tax or evade
the timely payment thereof, or to aid or abet another in any
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Section 2. Ordinance 650, Series of 1985, is hereby
specifically repealed.
Section 3. 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 4. 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 5. This ordinance shall take effect November 1,
1986.
INTRODUCED, READ, AND ADOPTED on first reading by a vote of
P, to n on this 13th day October, 1986, 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 October 27, 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 7 to 1 this 97th day of nrtnher
, 1986.
1986SIGNED by the Mayor on this 28th day of pctober
.
Frank Stites, Mayor
ATTEST:
Wanda Sang, City Clork
1st Publication: Oct. 16, 1986 APPROVED AS TO F M BY
2nd Publication: Oct. 30, 1986 OFFICE F Y TT N
Wheat Ridge Sentine: , I/O j
Effective Date: Nov. 1, 1986 j
Joo/hp,'E. Hayes
v /
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