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HomeMy WebLinkAboutOrdinance-1969-0003 - Retail Sales Taxs S BY COUNCILMAN - E/ ORDINANCE No. 3 Series of 1969 A BILL FOR AN ORDINANCE LEVYING A RETAIL SALES TAX WITHIN THE CITY OF WHEAT RIDGE, COLORADO; PROVIDING FOR COLLECTION OF THE TAX; AND PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Title. Declaration of purpose- Uniformity of interpretation. This ordinance shall be known and cited as the "Wheat Ridge Retail Sales Tax Ordinance of 1969." The Council of the City of Wheat Ridge, Colorado declares that its intent, in the enactment of this ordinance, is to levy within the City of Wheat Ridge a retail sales tax authorized by Chapter 138, Article 10, of the Colorado Revised Statutes of 1969, as amended. This ordinance shall be so construed and interpreted as to effectuate the general purpose of making it uniform with the State of Colorado's sales tax levied by Chapter 138, Article. 5, of the Colorado Revised Statutes of 1963, as amended. Section 2. Definitions. In this ordinance: (1) The term "person" includes an individual, firm, partnership, joint venture, corporation, estate or trust, or any group or combination acting as a unit and the plural as well as the singular. (2) The term "treasurer" means the treasurer of the City of Wheat Ridge. (3) The term "sale" or "sale and purchase" includes installment and credit sales, and the exchange of property, as well as the sale thereof for money, and every such transaction, conditional or otherwise, for consideration, constituting a sale, and also includes the sale of furnishing of electrical energy, gas, steam, telephone or telegraph services taxable under the terms of this ordinance. (4) The term "wholesaler" means a person doing a regularly organized wholesale or jobbing business, and known to the trade as such and selling to retail merchants, jobbers, dealers or other wholesalers, for the purpose of resale. (5) The term "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 to users or consumers, not for resale; and the latter sales shall be deemed retail sales, and subject to the provisions of this ordinance. (6) The term "retailer" or "vendor" means a person doing a retail business, known to the trade and public as such, and selling to user or consumer, and not for resale. (7) The term "retail sale" includes all sales made within the city of Wheat Ridge, Colorado, except wholesale sales. (8) The term "business" includes all activities engaged in or caused to be engaged in with the object of gain, benefit, or advantage, direct or indirect. (9) The term "taxpayer" means any person obligated to account to the director of revenue for taxes collected or to be collected under the terms of this ordinance. (10) The term "tax" means either the tax payable by the purchaser of a commodity or service subject to tax, or the aggregate amount of taxes due from the vendor of such commodities or services during the period for which he is required to report his collections, as the context may require. (11) The term "tangible personal property" means corporeal personal property. This shall not be construed to include newspapers, as legally defined by Section 109-1-2 of the Colorado Revised Statutes of 1963. (12) The term "purchase price" means the price to the consumer, exclusive of any direct tax imposed by the federal government or by this ordinance, and, in the case of all retail sales involving the exchange of property also exclusive of the fair market value of the property exchanged at the time and place of the exchange, provided such exchanged property is to be sole thereafter in the usual course of the retailer's business. (13) The term "gross taxable sales" means the total amount received in money, credits, property, excluding the fair market value of exchanged.property which is to be sold thereafter in the usual course of the retailer's business, or other consideration valued in money from sales and - 2 - • 0 purchases at retail within the City of Wheat Ridge, and embraced within the provisions of this ordinance. The taxpayer may take credit in his report of gross sales for an amount equal to the sale price of property returned by the purchaser from the full sale price thereof is refunded whether in cash or by credit. The fair market value of any exchanged property which is to be sold thereafter in the usual course of the retailer's business, if included in the full price of a new article, shall be excluded from the gross sales. On all sales at retail, valued in money, when such sales are made under conditional sales contracts, or under other forms of sale where the payment of the principal sum thereunder be extended over a period longer than sixty days from the date of sale thereof, only such portion of the sale amount thereof may be counted for the purpose of imposition of the tax imposed by this ordinance as has actually been received in cash by the taxpayer during the period for which the tax imposed by this ordinance is due and payable. Taxes paid on gross sales represented by accounts found to be worthless and actually charged off for income tax purposes may be credited upon a subsequent payment of the tax herein provided, but if any such accounts are thereafter collected by the taxpayer, a tax shall be paid upon the amounts collected. (14) Sales to and purchases of tangible personal property by a person engaged in the business of manufacturing, compounding for sale, profit or use, any article, substance or commodity, which tangible personal property enters into the processing of or becomes an ingredient or component part of the product or service which is manufactured, compounded or furnished and the container, label, or the furnished shipping case thereof, shall be deemed to be wholesale sales and shall be exempt from taxation under this ordinance. (15) Sales and purchases of electricity, coal, gas, fuel oil, or coke, for use in processing, manufacturing, mining, refining, irrigation, building construction, telegraph, telephone, and radio communication, street and railroad transportation services and all industrial uses, and newsprint and printers' ink for use by publishers of newspapers and commercial printers shall be deemed to be wholesale sales and shall be exempt from taxation under this ordinance. - 3 - ~T 0 (16) Should a dispute arise between the purchaser and seller as to whether or not any such sale is exempt from taxation hereunder, nevertheless the seller shall collect and the purchaser shall pay such tax and the seller shall thereupon issue to the purchaser a receipt, or certificate, on forms prescribed by the director of revenue, showing the names of the seller and purchaser, the items purchased, the date, price, amount of tax paid, and a brief statement of the claim of exemption. The purchaser thereafter may apply to the director of revenue for a refund of such taxes, and it shall then be the duty of the director of revenue to determine the question of exemption, subject to review by the courts, as hereinafter provided. It shall be a misdemeanor, punishable as provided in this ordinance, for any seller to fail to collect, purchaser to fail to pay the tax levied by this ordinance, and on sales on which exemption is disputed. (17) When right to continuous possession or use of any article or tangible personal property is granted under a lease or contract and such transfer or possession would be taxable if outright sale were made, such lease or contract shall be considered the sale of such article and the tax shall be computed and paid by the vendor upon the rentals paid. (18) A "farm close out sale" means a sale by auction or private treaty, of all tangible personal property of a farmer or rancher previously used by him in carrying on his farming or ranching operations. Unless said farmer or rancher is making or attempting to make full and final disposition of all property used in his farming or ranching operations and is abandoning the said operations on the premises whereon they were previously conducted, such sale shall not be deemed a "farm close out sale" within the meaning of this ordinance. (19) The sales tax is imposed on the full purchase price of articles sold after manufacture or after having been made to order and includes the full purchase price for material used and the service performed in connection therewith, excluding however, such articles as are otherwise exempted in this ordinance. The sales price is the gross value of all materials, labor, service, and the profit thereon, included in the price charged to the user or consumer. - 4 - (20) The term "sale" or "sales and purchases," in addition to the terms included in subsection (3) of this section, includes the transaction of furnishing rooms or accommodations by any person, partnership, association, corporation, estate, receiver, trustee, assignee, lessee, or any other person acting in a representative capacity, or any other combination of individuals by whatever name known to a person or persons who for a consideration, use, possess, or have the right to use or possess any room or rooms in a hotel, apartment hotel, lodging house, motor hotel, guest house, guest ranch, mobile home, auto camp, trailer court, or trailer park under any concession, permit, right of access, license to use or other agreement, or otherwise. (21) "Auction sale" means any sale conducted or transacted at a permanent place of business operated by an auctioneer or a sale conducted and transacted at any location where tangible personal property is sold by an auctioneer at any sale defined herein, except when acting as an agent for a duly licensed retailer or vendor or when selling only tangible personal property which is exempt under the provisions of sections 14(5) and 14(6) of this ordinance, is a retailer or vendor as defined in subsection (6) of this section and the sale made by him is a retail sale as defined in subsection (7) of this section, and the business conducted by said auctioneer in accomplishing such sale is a transaction of a business as defined by subsection (8) of this section. (22)(a) "Doing business in this city," for the purposes of this ordinance, means the selling, leasing, or delivering in the City of Wheat Ridge, Colorado, or any activity in the City of Wheat Ridge, Colorado, in connection with the selling, leasing, or delivering in the City of Wheat Ridge, Colorado, of tangible personal property by a retail sale as defined in this section, for use, storage, distribution, or consumption within the City of Wheat Ridge, Colorado. This term shall include, but shall not be limited to, the following methods of transacting business: (b) The maintaining within the City of Wheat Ridge, Colorado, directly, or indirectly or by a subsidiary, an office, distributing house, salesroom or house, warehouse, or other place of business. (c) The soliciting, either by direct representatives, indirect representatives, or manufacturers' agents, or by distribution of catalogues - 5 - or other advertising, or by use of any communication media, or by any other means whatsoever, of business from persons residing in the City of Wheat Ridge, Colorado, and by reason thereof receiving orders from, or selling or leasing tangible personal property to, such persons residing in the City of Wheat Ridge, Colorado, for use, consumption, distribution, and storage for use or consumption in the City of Wheat Ridge. (23) The term "director of revenue" as used in this ordinance means the director of the department of revenue of the State of Colorado. Section 3. Licenses. (1)(a) It shall be unlawful for any person to engage in the business of selling at retail as the same is defined in this ordinance, without first having obtained a license therefor, which license shall be granted and issued by the treasurer, and shall be in force and effect until the thirty-first day of December of the year in which it is issued, unless sooner revoked. Such license shall be granted or renewed only upon application stating the name and address of the person desiring such a license, the name of such business and location, including the street number of such business, and such other facts as the director or treasurer may require. (b) It shall be the duty of each such licensee on or before January first of each year during which this ordinance remains in effect, to obtain a renewal thereof if the licensee remains in retail business or liable to account for the tax herein provided, but nothing herein contained shall be construed to empower the treasurer to refuse such renewal except revocation for cause of licensee's prior license. (c) For each license issued, a fee of two dollars shall be paid, which fee shall accompany the application together with an additional fifty cents for filing fee. A further fee of two dollars shall be paid for each year or fraction thereof which said license is renewed, together with an additional fee of fifty cents for filing fee; provided that only one-half of the said two dollars fee shall be charged on licenses issued after July first of any year. (2) In case business is transacted at two or more separate places by one person, a separate license for each place of business shall be required. - 6 - (3) Each license shall be numbered and shall show the name, residence, and place and character of business of the licensee and shall be posted in a conspicuous place in the place of business for which it is issued. No license shall be transferable. (4) The treasurer on reasonable notice and after a full hearing, may revoke the license of any person found to have violated any provision of this ordinance. (5) Any finding and order of the treasurer revoking the license of any person shall be subject to review by the District Court for the County of Jefferson, State of Colorado, upon application of the aggrieved party. The procedure for review shall be, as nearly as possible, the same as provided by Rule 106 (a)(4) of the Colorado Rules of Civil Procedure or Section 3-16-5 of the Colorado Revised Statutes of 1963. (6) No license shall be required for any person engaged exclusively in the business of selling commodities which are exempt from taxation under this ordinance. Section 4. Property and services taxed. (1)(a) There is hereby levied and there shall be collected and paid a tax on the amounts stated in section 6 as follows: (b) On the purchase price paid or charged upon all sales and purchases of tangible personal property at retail. (c) In the case of retail sales involving the exchange of property, on the purchase price paid or charged, including the fair market value of the property exchanged at the time and place of exchange, excluding, however, from the consideration or purchase price, the fair market value of the exchanged property, provided such exchanged property is to be sold thereafter in the usual course of the retailer's business. (d) Upon telephone and telegraph services, whether furnished by public or private corporations or enterprises, for all intrastate telephone and telegraph services. (e) For gas and electric service, whether furnished by municipal, public, or private corporations or enterprises, for gas and electricity furnished and sold for domestic and commercial consumption and not for - 7 - 0 resale, upon steam when consumed or used by the purchaser and not resold in original form whether furnished or sold by municipal, public, or private corporations or enterprises. Section 5. Vendor liable for tax. (1)-(a) Every retailer, also herein called "vendor", shall, irrespective of the provisions of section 6, be liable-and responsible for the payment of an amount equivalent to one percent of all sales made by him of commodities or services as specified in section 4, and shall before the twentieth day of each month make a return to the director of revenue for the preceding calendar month and remit an amount equivalent to said one percent on such sales to said director. Such returns of the taxpayer or his duly authorized agent shall contain such information and be made in such manner and upon such forms that the director of revenue may prescribe. (b) The director of revenue may extend the time for making a return and paying the taxes due under such reasonable rules and regulations as he may prescribe, but no such extension shall be for a greater period than is provided for in section 9 of this ordinance. (c) The burden of proving that any retailer is exempt from collecting the tax on any goods and paying the same to the director of revenue, or from making such returns, shall be on the retailer or vendor under such reasonable requirements or proof as the said director may prescribe. Section 6. Schedule of sales tax. (1) There is hereby imposed upon all sales of commodities and services specified in section 4, a tax in accordance with the following schedule: Amount of Sale Tax $.01 including $.18 No Tax .19 including 1.00 la On sales in excess of one dollar the tax shall be one cent on each full dollar of the sales price, plus the tax shown in the above schedule for the applicable fractional part of a dollar of each such sales price. (2)(a) Except as provided in paragraph (b) of this subsection, retailers shall add the tax imposed hereby, or the average equivalent - 8 - thereof, to the sale price or charge, showing such tax as a separate and distinct item, and when added such tax shall constitute a part of such price or charge and shall be a debt from the consumer or user to the retailer until paid and shall be recoverable at law in the same manner as other debts. (b) Any retailer selling malt, vinous, or spiritual liquors by the drink may include in his sales price the tax levied under this ordinance; provided, that no such retailer shall advertise or hold out to the public in any manner, directly or indirectly, that such tax is not included as a part of the sales price to the consumer. The schedule set forth in subsection (1) of this section shall be used by such retailer in determining amounts to be included in such sales price. No such retailer shall gain any benefit from the collection or payment of such tax, nor shall the use of the schedule set forth in subsection (1) of this section release such retailer from liability for payment of the full amount of the tax levied by this ordinance. Section 7. Rules and requlations. To provide uniform methods of adding the tax, or the average equivalent thereof, to the selling price, the director of revenue may formulate and promulgate appropriate rules and regulations to effectuate the purpose of this ordinance. Section 8. Tax cannot be absorbed. It shall be unlawful for any retailer to advertise or hold out or state to the public or to any customer, directly or indirectly, that the tax or any part thereof imposed by this ordinance will 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 will be refunded. Any person violating any of the provisions of sections 5 to 13 of this ordinance shall be guilty of a misdemeanor. Section 9. Reports of vendor. If the accounting methods regularly employed by the vendor in the transaction of his business, or other conditions, are such that reports of sales made on a calendar month basis will impose unnecessary hardship, the director of revenue,.upon written request of the vendor, may accept reports at such intervals as will in his opinion better suit the convenience of the taxpayer and will not jeopardize the collection - 9 - of the tax; provided, that the director of revenue may by rule permit taxpayers whose monthly tax collected is less than sixty dollars to make returns and pay taxes at intervals not greater than every three months. Section 10. Retailer - multiple locations. A retailer doing business in two or more places or locations, taxable hereunder, may file each return covering all such business activities engaged within the City of Wheat Ridge, Colorado. Section 11. Credit sales. In case of a sale upon credit, a contract for sale wherein it is provided that the price shall be paid in installments and title does not pass until a future date, chattel mortgage or conditional sale, there shall be paid upon each payment upon the account of purchase price, that portion of the total tax which the amount paid bears in the total purchase price. The director of revenue may authorize a retailer doing business, fully or partly on a credit basis, to make returns on the basis of cash actually received. Thereafter the retailer shall make return and pay taxes on that basis until further order of the director of revenue. Section 12. Excess tax--remittance. If any vendor, during any reporting period, shall collect as a tax on amount in excess of one percent of his total taxable sales, he shall remit to the director of revenue the full net amount of the tax herein imposed and also such expenses. The retention by the retailer or vendor of any excess sales tax collections over the one percent of the total taxable sales of such retailer or vendor or the intentional failure to remit punctually to the director of revenue the full amount declared to be remitted by the provisions of this ordinance, is declared to be unlawful and shall constitute a misdemeanor. Section 13. (Reserved.) Section 14. Exemptions-dispute. (1)(a) There shall be exempt from taxation under the provisions of this ordinance the following: (b) 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; (c) All sales made to religious, charitable or eleemosynary corporations, in the conduct of regular religious, charitable or eleemosynary functions and activities; - 10 - (d) All sales which the State of Colorado is prohibited from taxing under the constitution or laws of the United States or State of Colorado; (e) All sales of cigarettes; - (f) All sales-of drugs dispensed in accordance with a prescription and all sales of prosthetic devices; (g) All sales_ and purchases of commodities and services under the provisions of section 2 (20) to any occupant who is a permanent resident of any hotel, apartment hotel, lodging house, motor hotel, guest ranch, mobile home, auto camp, trailer court or park, and who enters into or has entered into a written agreement for occupancy of a-room or rooms or accommodations for a period of at least thirty consecutive days during the calendar year or preceding year; (h) All commodities which are taxed under provisions of sections 138-2-1 to 138-2-23 of the Colorado Revised Statutes of 1963, and all commodities which are taxed under said provisions and the tax refunded, and all sales or purchases of aviation fuel upon which no Colorado sales tax was in fact collected and retained prior to July 1, 1963, shall be exempt from taxation under this ordinance, and the storage, use or consumption of such aviation fuel shall be exempt from taxation under this ordinance. (i) Should a dispute arise between the purchaser and seller as to whether or not any sale, service, or commodity is exempt from taxation under this section, nevertheless the seller shall collect and the purchaser shall pay the tax and the seller shall thereupon issue to the purchaser a receipt or certificate, on forms prescribed by the director of revenue, showing the names of the seller and the purchaser, the items purchased, the date, price, amount of tax paid, and a brief statement of the claim of exemption. The purchaser thereafter may apply to the director of revenue for a refund of such taxes, and it shall then be the duty of the director of revenue to determine the question of exemption. The purchaser may request a hearing, and the final determination of the director of revenue may be appealed to the District Court for the County of Jefferson such hearing or appeal shall be governed by Sections 138-9-2 and 138-9-4 of the Colorado Revised Statutes of 1963, as amended, to the extent applicable. - 11 - (2)(a) A refund shall be made, or a credit allowed, for the tax so paid under dispute by a purchaser who has an exemption as in this ordinance provided. Such refund shall be made by the director of revenue after compliance with the following conditions precedent: Applications for refund must be made within sixty days after the purchase of the goods whereon an exemption is claimed; and, must be supported by the affidavit of the purchaser accompanied by the original paid invoice or sales receipt and a certificate issued by the seller; and, be made upon such forms as shall be prescribed and furnished by the director of revenue, which forms shall contain such information as the director shall prescribe. (b) upon receipt of such application the director shall examine the same with all due speed and shall give notice to the application by order in writing of his decision thereon. Aggrieved applicants, within thirty days after such decision is mailed to them, may petition the director for a hearing on the claim in the manner provided in Section 138-9-2 of the Colorado Revised Statutes of 1963 and may appeal to the District Court for the County of Jefferson in the manner provided in Section 139-9-4 of the Colorado Revised Statutes of 1963. The right of any person to a refund under this ordinance shall not be assignable and, except as provided in paragraph (d) of this subsection (2), such application for refund must be made by the same person who purchased the goods and paid the tax thereon as shown in the invoice of the sale thereof. Any applicant for refund under the provisions of this section, or any other person who shall make any false statement in connection with an application for a refund of any taxes shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more than three hundred dollars or by imprisonment in the city or county jail of not more than ninety days or by both such fine and imprisonment. (c) A refund shall be made or credit allowed by the director of revenue to any person entitled to an exemption where such person establishes: That a tax was paid by another on a purchase made on behalf of such person; and that a refund has not been granted to the person making the purchase; and that the person entitled to exemption paid or reimbursed the purchaser for such tax. No such refund shall be made or credit allowed in an amount greater than the tax paid. - 12 - (d) Such application for refund under paragraph (b) of this subsection (2) shall be made within three years after the date of purchase and shall be made on forms prescribed and furnished by the director of revenue, which forms shall contain, in addition to the foregoing information such pertinent data as the director shall prescribe. Upon receipt on such application and proof of the matters therein contained the director shall give notice to the applicant by order in writing of his decision thereon. Aggrieved applicants, within thirty days after such decision is mailed to them, may petition the director for a hearing on the claim in the manner provided in Section 138-9-2 of the Colorado Revised Statutes of 1963 and may appeal to the District Court for the County of Jefferson in the manner provided in Section 138-9-4 of the Colorado Revised Statutes of 1963. Any applicant for refund under the provisions of this paragraph (d), or any other persons who shall make any false statement in connection with an application for refund of any taxes, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than three hundred dollars or by imprisonment in the city or county jail for not more than ninety days, or by both such fine and imprisonment. (e) Claims for tax monies paid in error or by mistake may be processed for refund in accordance with regulations of the director of revenue under paragraph (c) of this subsection (2); provided, that the proceeds of any such claim for refund shall first be applied by the director of revenue to any tax deficiencies or liabilities existing against the claimant before allowance of such claim by the director of revenue; and provided further, that if such excess payment of tax monies in any period is discovered as a result of audit by the director of revenue and deficiencies are discovered and assessed against the taxpayer as a result of such audit, such excess money shall be first applied against any deficiencies outstanding to the date of the assessment but shall not be applied to any future tax liabilities. (4) The burden of proving that sales, services, and commodities, on which tax refunds are claimed, are exempt from taxation under this ordinance, or were not at retail, shall be on the one making such claim under such reasonable requirements of proof as the director of revenue may prescribe. Should the applicant for refund be aggrieved at the final decision of the - 13 - director, he may proceed to have the same reviewed by the District Court for the County of Jefferson, in the manner, provided for review of other decisions of the director as provided in Section 138-9-4 of the Colorado Revised Statutes of 1963. (5) All sales and purchases of meat cattle, sheep, lambs, s,;!ine and goats; all sales and purchases of mares and stallions for breeding purposes and all farm close out sales shall be exempt from taxation under this ordinance. (6) All sales and purchases of feed for livestock or poultry, all sales and purchases of seeds, and all sales and purchases of orchard trees shall be exempt from taxation under this ordinance. (7) Every vendor vending individual items of personal property through coin-operated vending machines shall be exempt from the provisions of sections 5 and 6, but nevertheless such vendor shall pay a sales tax of one percent on the personal property sold in excess of ten cents so vended in the coin-operated machines unless the sales shall be othen:ise exempt under the provisions of this ordinance. Section 15. (Reserved.) Section 16. (Reserved.) Section 17. Deficiency due to negligence. If any part of the deficiency is due to negligence or intentional disregard of authorized rules and regulations with knowledge thereof, but without intent to defraud, there shall be added ten percent of the total amount of the deficiency, and interest in such case shall be collected at the rate of one half percent per month on the amount of such deficiency from the time the return was due, from the person required to file the return, which interest shall become due and payable ten days after written notice and demand to him by the director of revenue. If any part of the deficiency is due to fraud with the intent to evade the tax, then there shall be added fifty percent of the total amount of the deficiency and in such case, the whole amount of the tax unpaid, including the additions, shall become due and payable ten days after written notice and demand by the director of revenue and an additional. one percent per month on said amount shall be added from the date the return was due until. paid. Section 18. (Reserved.) Section 19. (Reserved.) - 14 - Section 20. (Reserved.) Section 21. (Reserved.) Section 22. (Reserved.) Section 23. (Reserved.) Section 24. Recovery of taxes, penalty and interest. (1) All sums of money paid by the purchaser to the retailer as taxes imposed by this article shall be and remain public money, the property of the City of Wheat Ridge, in the hands of such retailer and he shall hold the same in trust for the sole use and benefit of the City of Wheat Ridge until paid to the director of revenue, and for failure to so pay to the director of revenue, such retailer shall be punished as provided by law. (2)(a) If a person neglects or refuses to make a return in payment of the tax as required by this ordinance the director of revenue shall make an estimate based upon such information as may be available, of the amount of taxes due for period for which the taxpayer is delinquent; and shall add thereto a penalty equal to ten percent thereof and interest on such delinquent taxes at the rate of one percent per month from the date when due. Promptly thereafter, the director of revenue shall give to the delinquent taxpayer written notice of such estimated taxes, penalty, and interest, which notice shall be served personally or by certified mail. (b) Such estimates shall thereupon become a notice of deficiency. A hearing may be held and the director shall make a final determination. The taxpayer may appeal the said final determination in the manner provided in section 138-9-4 of the Colorado Revised Statutes of 1963. (3)(a) If any taxes, penalty or interest imposed by this ordinance and shown due by returns filed by the taxpayer or shown by assessments duly made as provided herein, are not paid within the five days after the same are due, the director of revenue shall issue a notice, setting forth the name of the taxpayer, the amount of tax, penalties and interest, the date of the accrual thereof, and that the City of Wheat Ridge, Colorado claims a first and prior lien therefor, second only to the first and prior lien claim by the State of Colorado, on the real and tangible personal property of the taxpayer except as to the preexisting claims or liens of a bona fide mortgagee, pledgee, judgment creditor or purchaser whose rights shall have attached prior to the filing of the notice as herein provided on property of the taxpayer. - 15 - (b) Said notice shall be on forms prepared by the director of revenue, and shall be verified by him or his duly qualified deputy, or any duly qualified agent of the director of revenue, whose duties are the collection of such tax, and may be filed in the office of the clerk and recorder of any county in the state in which the taxpayer owns real or tangible personal property, and the filing of such notice shall constitute a lien on such property in that county and constitute notice thereof. After said notice has been filed, or concurrently therewith, or any time when taxes due are unpaid, whether such notice be filed or not, the director of revenue may issue a warrant directed to any duly authorized revenue collector, or to the sheriff of any county of the state, commanding him to levy upon, seize and sell sufficient of the real and personal property of the tax debtor found within his county for the payment of the amount due, together with interest, penalties and costs, as may be provided by law, subject to valid preexisting claims or liens. (4) Such revenue collector or sheriff shall forthwith levy upon sufficient of ihe property of the taxpayer, or any property used by such taxpayer in conducting his retail business, and said property so levied upon shall be sold and all respects with like effect and in the same manner as is prescribed by law in respect to executions against property upon judgment in a court of record, and the remedies of garnishment shall apply. The sheriff shall be entitled to such fees in executing such warrant, as are now allowed by law for similar services. (5) Any lien for taxes as shown in the records of the county clerk and recorder as herein provided, upon payment of all taxes, penalties and interest covered thereby shall be released by the director of revenue in the same manner as mortgages and judgments are released. (6) (Reserved.) (7)(a) The director of revenue may also treat any such taxes, penalties, or interest due and unpaid as a debt due the City of Reheat Ridge, Colorado from the vendor. In case of failure to pay the tax, or any portion thereof, or any penalty or interest thereon due, the director of revenue may receive at law the amount of such taxes, penalties and interest in the county or district court having jurisdiction of the amounts sought to be collected. - 16 - The return of the taxpayer or assessment made by the director of revenue, as herein provided, shall be prima facie proof of the amount due. (b) Such actions may be actions in attachment, and writs of attachment may be issued to the sheriff. It shall be the duty of the city attorney when requested by the director of revenue to commence action for the recovery of taxes due under this ordinance, and this remedy shall be in addition to all other existing remedies provided in this ordinance. (8) In any action affecting the title to real estate or the ownership or rights to possession of personal property the City of Wheat Ridge, Colorado may be made a party defendant for the purpose of obtaining adjudication or determination of its lien upon the property involved therein and in any such action service of summons upon the city clerk shall be sufficient service and binding upon the City of Wheat Ridge, Colorado. (9) The director. of revenue is hereby authorized to waive, for good cause shown, any penalty assessed as in this ordinance provided, and interest imposed in excess of six percent per annum shall be deemed a penalty. Section 24. Hearing and Judicial Review. Any person aggrieved by any decision or action by the director of revenue shall be entitled to a hearing and judicial review as provided in Sections 138-5-25, 138-5-26, and 138-5-27(2) of the Colorado Revised Statutes of 1963 as amended. Section 25. (Reserved.) Section 26. (Reserved.) Section 27. (Reserved.) Section 28. License and tax. The license and tax imposed by this ordinance shall be in addition to all other licenses and taxes imposed by law, except as herein otherwise provided. Section 29. Violation. (1) It shall be unlawful for any retailer or vendor to refuse to make any return provided to be made in this ordinance or to make any false or fraudulent return or false statement on any return or fail and refuse to make payment to the director of revenue of any taxes collected or due the City of Wheat Ridge, or in any manner evade the collection and payment of the tax, or any part thereof, or for any person or purchaser to fail or refuse to pay such tax or evade the payment thereof or to aid or abet another in any attempt to evade the payment of the tax. - 17 - (2) Any person violating any of the provisions of this ordinance shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment not to exceed ninety days in the city or county jail or a fine not to exceed three hundred dollars or by both such imprisonment and fine. Section 30. (Reserved.) Section 31. Administration. The administration of this ordinance is vested in and shall be exercised by the treasurer and the director of revenue, and the director of revenue shall prescribe forms and reasonable rules and regulations in conformity with this ordinance for the making of returns, for the ascertainment, assessment, and collection of taxes imposed hereunder, and for the proper administration and enforcement of this ordinance. Section 32. (Reserved.) Section 33. Limitations. The taxes for any period, together with interest thereon and penalties with respect thereto, imposed by this ordinance shall not be assessed nor shall any notice of lien be filed, or distraint warrant issued, or suit for collection be instituted, or any action to collect same be commenced, more than three years after the date on which the tax was or is payable; nor shall lien continue after such period, except for 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 cases such lien shall continue only for one year after the filing of notice thereof. In the case of a false or fraudulent return with intent to evade tax, 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. Before the expiration of such period limitation, the taxpayer and the director of revenue may agree in writing to an extension thereof, and the period so agreed on may be extended by subsequent agreements in writing. Section 34. Application. The sales tax imposed by this ordinance on the privilege of selling tangible personal property at retail shall apply to every retailer in the City of Wheat Ridge. For the purpose of this ordinance, all retail sales are deemed to be consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to a destination outside the limits of the City of Wheat Ridge or to a common carrier for delivery to a destination outside the limits of the City of Wheat Ridge. The gross receipts from such sales shall include delivery - 18 - charges, when such charges are subject to the State of Colorado's sales tax imposed by Chapter 138, Article 5, of the Colorado Revised Statutes of 1963, as amended, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the City of Wheat Ridge, or has more than one place of business, the place or places at which the retail sales are consummated for the purpose of the sales tax imposed by this ordinance shall be determined by the provisions of Chapter 138, Article 5, of the Colorado Revised Statutes of 1963, as amended, and rules and regulations promulgated by the director of revenue. The amount subject to tax shall not include the amount of any sales or use tax imposed by Chapter 138, Article 5, of the Colorado Revised Statutes of 1963, as amended. In addition to the other exemptions provided by this ordinance, all sales of personal property on which a specific ownership tax has been paid or is payable shall be exempt from the sales tax provided by this ordinance when such sales meet both of the following conditions: (a) The purchaser is a nonresident of, or has its principal place of business outside the City of Wheat Ridge, and (b) such personal property is registered or required to be registered outside the limits of the City of Wheat Ridge under the laws of the State of Colorado. _ Section 35. Effective date. This ordinance shall take effect at 12:01 a.m. on July 1, 1970, if, however, it shall have been approved by vote of the qualified electors of the City of Wheat Ridge at a special election to be held on the day of N ev^- , 1969, between the hours of 7:00 a.m. and 7:00 p.m. in the City of Wheat Ridge, at which election there shall be submitted to the vote of the qualified electors the following question: "Shall the City of Wheat Ridge adopt a one percent sales tax?" In the event that this ordinance is not approved by a vote of the qualified electors of the City of Wheat Ridge at a special election on the u ~l- day of LV , 1969, then this ordinance shall not take effect. Section 36. Amendments. The City Council of the City of Wheat Ridge shall not increase the retail sales tax imposed by this ordinance except by submission of such proposed increase to an election by the qualified electors of the City of Wheat Ridge for their approval or rejection in accordance with section 138-10-2 of the Colorado Revised Statutes of 1963, as amended. The City Council of Wheat Ridge reserves the power, however, to make any other - 19 - amendments of this ordinance or to repeal this ordinance in its entirety without submission of s„ch amendment or such repeal to an election by the qualified electors of the City of Wheat Ridge for their approval or reiection. Section 37. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance is for any reason held or decided to be unconstitutional or invalid, such decisions shall not effect the validity of the remaining portions. The City Council of the City of Wheat Ridge hereby declareF that it would have passed this ordinance and each section, subsection, sentencc, clause, and phrase thereof. even though any one or more sections, subsections, sentences, clauses, or phrases might be declared unconstitutional or invalid. INTRODUCED, READ, AND ORDERED POSTED AND PUBLISHED this 16th day of September, 1969. PASSED AND ADOPTED ON SECOND AND FINAL READING by a vote of five (5) to nothinq (0) this 30th day of September, 1969, Al rt E, Anderson, yor ATTEST: Louise F. Turner, City Clerk r: Lf ~ i~ ,^a I _20_ f THE FOLLOWING SECTION WAS ADDED BY MOTION BY COUNCIL ON SEPT. 30, 19.69. Section 38. EMERGENCY CLAUSE. The provisions of this ordinance are necessary to provide operating capital for municipal functions of the city of Wheat Ridge, Colo. _ (1) No municipal retail sales tax ordinance exists in the city because the city having just completed incorporation August 20, 1969, has not heretofore adopted any ordinances pertaining to or collecting retail sales tax. (2) The city of Wheat Ridge retail sales tax is necessary to provide funds to the budget of the city of Wheat Ridge, Colorado. (3) EFFECTIVE DATE. This ordinance shall take effect and be in force five (5) days after publication following final passage, providing it shall have been passed by an affirmative vote of three-fourths (3/4) of the City Council; otherwise said ordinance shall take effect thirty (30) days after publication following final passage after public hearing._ IV- CERTIFICATE OF POSTING I, Louise F. Turner hereby certify that Ordinance # ? was duly posted by me following first reading on'the ;/,day of , £&~7gm,SEX 1969, at the fallowing locations: Wheat Ridge Post Office Wheat Ridge Branch Library Westridge Sanitation District Office Wheat Ridge Fire Department Prospect Valley Fire Department Lakewood Bonnie Bonham Branch Library I, Louise F. Turner hereby certify that Ordinance # 3 was duly posted by me following second reading on the a vv day of 04~ 1969, at the above listed locations. i_ Louise F. Turner > City Clerk SEAL