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HomeMy WebLinkAboutOrdinance-2002-1272 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER Figlus Council Bill No, 35-2002 Ordinance No. 1272 Series of 2002 TITLE: AN ORDINANCE REPEALING AND REENACTING CHAPTER 22 OF THE CODE OF LAWS OF THE CITY OF WHEAT RIDGE CONCERNING TAXATION; MOVING CERTAIN SECTIONS OF CHAPTER 22 CONCERNING THE LICENSING OF PEDDLERS, SOLICITORS AND NONRESIDENT VENDORS TO CHAPTER 11; AND ELIMINATING THE REQUIREMENT THAT CANVASSERS OBTAIN A LICENSE. WHEREAS, the City of Wheat Ridge, Colorado (the "City"), is a political subdivision of the State of Colorado organized and existing as a home rule municipality pursuant to Article XX of the Colorado Constitution and the home rule charter for the City (the "Charter"); and WHEREAS, pursuant to section 1.3 of the Charter, the City has all the power of local self-government and home rule and all the power possible for a municipality to have under the Constitution of the State of Colorado, including the power to tax; and WHEREAS, the City has previously adopted provIsions concerning taxation, codified at Chapter 22 of the Code of Laws of the City of Wheat Ridge (the "Code"); and WHEREAS, Chapter 22 of the Code contains several inconsistencies in vocabulary and section number references due primarily to a series of amendments to portions of the Chapter during the preceding years; and WHEREAS, Chapter 22 of the Code also contains prOVISions concerning business licensing better suited to Chapter 11 of the Code concerning licensure; and WHEREAS, the City Council desires to eliminate the requirement that persons engaging in First Amendment speech door-to-door or on public property obtain a license to do so in light of the recent United States Supreme Court decision concerning the issue; and WHEREAS, the City Council now desires to repeal and reenact Chapter 22 of the Code to remedy such inconsistencies, to enact certain revisions that do not constitute changes in tax policy, to move certain licensing provisions to Chapter 11 and to eliminate the requirement that canvassers who engage in First Amendment speech first obtain a license. CNB\53027\409266.05 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Chapter 22 of the Code of Laws IS hereby repealed and reenacted to read in its entirety as follows: CHAPTER 22 TAXATlON*' Article I. Sales and Use Tax Division 1. Administration and Enforcement Sees. 22-1--22-20 Reserved. Sec. 22-21 Definitions and usage. See 22-22. Legislative intent. See 22-23 Motor vehicles. Secs 22-24--22-32. Reserved. Sec. 22-33 Administrative authority of Treasurer Secs 22-34, 22-35 Reserved. Sec. 22-36 Disputes; refunds, limitation of actions. See 22-37 Reserved. Sec 22-38 Transfer of ownership of business, renewal or issuance of business license. Sec. 22-39 Liability of retailer or vendor for collection. Sec 22-40 Reports by vendor; payment of tax, monies collected held in trust. See 22-41 Sales or use tax; deficiency Sec 22-42 Business records; burden of proof. Sec 22-43 Refusal to report; estimate of tax; emergency collection procedures, penalties and interest. Sec. 22-44 Limitation of action. Sec. 22-45 Taxpayer remedies. Sec 22-46 Additional remedies of City Sec 22-47 Intercity claims for recovery See 22-48 Notice of sales and use tax ordinance amendment. Sec 22-49 Participation in simplification meetings. Sec 22-50 Confidentiality of information and records. Secs.22-51--22-55 Reserved. Division 2. Sales Tax Sec 22-56 Schedule. Sec 22-57 Property and service subject to tax. Sec. 22-58 Exempt sales. Secs. 22-59--22-65 Reserved. ] Charter reference-Taxation, S 11 1 et seq. Cross references-Improvement districts, Ch. 10; licenses, permits and miscellaneous business regulations, Ch. 11 State law references-home rule powers, Co Const. Art. XX, S 6, municipal taxation, C.R.S S 31-20-101, et seq CNB \5 3027\409266.05 2 Division 3 Use Tax See 22-66 Property subject to tax. See 22-67 Exemptions. See 22-68 Building materials and supplies. Sees. 22-69--22-72. Reserved. Division 4 Enhanced Sales Tax Incentive Program See 22-73 Program established. See 22-74 Purpose See.22-75 Definitions. See 22-76 Participation. Sec. 22-77 Approval of agreement; use of funds generally See 22-78 Uses enumerated. Sec. 22-79 Increments, sharing of funds. See 22-80 Revenues restricted. See 22-81 Capital improvement fund. Sec. 22-82. Criteria for approval of application. See 22-83 Agreement required. See 22-84 Joint venture; liability Division 5 Business Development Zone See 22-85 Program established. Sec. 22-86 Legislative declarations. See 22-87 Definitions. See 22-88 Participation. See 22-89 Approval of agreement; use of funds generally. Sec. 22-90 Uses enumerated. See 22-91 Increments, sharing of funds. See 22-92. Capital improvement fund. See 22-93 Criteria for approval of application. Sec. 22-94 Agreement required. See 22-95 Joint venture liability. See 22-96 ESTIP and TIF Sees. 22-97--22-99 Reserved. Article II. Lodgers' and Admissions Tax See 22-100 Lodgers' tax. See 22-101 Admissions tax. See 22-102--22-119 Reserved. Article III. Basic Local Telecommunications Service See 22-120 Levy of tax. See 22-121 Definitions. See 22-122. Local purpose. See 22-123 Amount and payment of tax. See 22-124 Failure to pay See 22-125 Inspection ofrecords. See 22-126 Tax in lieu of other occupation taxes. CNB\53U27\409266.05 3 ARTICLE I. SALES AND USE TAX*2 DIVISION 1 ADMINISTRATION AND ENFORCEMENT Sees. 22-1 - 22-20. Reserved. Sec. 22-21. Definitions and usage. (a) Terms defined As used in this Chapter, the following words and phrases shall have the following meanings Access services' The services furnished by a local exchange company to its customers who provide telecommunications servIces which allow them to provide such telecommunications services Admission charge: Any charge for the right or privilege to gain entrance to any place, event, performance or scheduled activity held within the City, and every person, business, corporation or association, whether owner, lessee, operator or sublessee, who or which charges or causes to be charged admission as defined herein shall be responsible for the collection of the tax imposed by this article, This tax is defined as an admissions tax. Alarm and security systems services and/or sales: The entire service charge or purchase price including freight for any alarm or security system, This charge or price includes, but is not limited to, compensation paid for monitoring, maintenance, rental, lease, material, equipment or installation of alarm or security systems Amusement or entertainment event: Any event where a person pays to gain admission to any place in the City that is open to the public, or to gain access to a performance, stage show, play, concert, or to a sporting or recreation event, or to a motion picture, or to the use of lanes and pinsetters for bowling balls in a bowling alley or a game of regular or miniature golf, and other activities as defined by the Treasurer and promulgated in the City's regulations Auction: Any sale where tangible personal property is sold by an auctioneer who IS either the agent for the owner of such property or is in fact the owner thereof Auction or estate liquidation sale' Any sale conducted or transacted at a permanent place of business operated by an auctioneer or estate liquidator, or a sale conducted or transacted at any location where tangible personal property is sold by an auctioneer or estate 2 Editor's note - Section 2 ofOrd. No. 1988-781, adopted Dec. 12, 1988, repealed Ord. No 1985-642, adopted Jan. 1, 1986, Ord. No 1986-696, adopted Nov 1,1986, and Ord. No. 1987-711 adopted Peb 13,1987, from which were derived the provisions codified herein as Art. II, 22-21-22-23, 22-33, 22-36-22-46, 22-56-22-58, and 22-66-22-68, of Ch. 22. Section 1 of said Ord. No. 1988-781 enacted provisions, relative to the same subject matter, which have been included herein as a new Art. II of Ch. 22. Charter reference-Revenue bonds funded by sales and use tax, 9 12.5 State law reference-Municipal sales or use tax, C.R.S 929-2-101 et seq CNB\53027\409266.05 4 liquidator or any such individual or business acting either as agent for the owner of such tangible personal property or is in fact the owner thereof Automotive vehicle or motor vehicle: 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. "Automotive vehicle" includes, but is not limited to, motor vehicles, trailers, semi-trailers or mobile homes. "Automotive vehicles" shall not include devices moved by human power or used exclusively upon stationary rails or tracks Bowling alley operator- Any person, whether owner, operator, lessee or any other person, who charges or causes to be charged admission to a bowling alley or fees for the utilization, lease or rental of bowling alleys and pinsetters for bowling balls in a bowling alley open to the public, including charges for bowling by the line. Business All activities engaged in or caused to be engaged in with the object of gain, benefit or advantage, directly or indirectly. Capital lease: A lease with characteristics of a purchase, as defined by generally accepted accounting principles. The intent of the vendor evidenced by the treatment of the lease in the vendor's financial statements, past course of dealings and usage of trade will also be considered as a basis of classifying a lease as capital in nature, Carrier access services sale: Any charge by local telephone exchange companies to providers of interchange telecommunications services for use in providing their interchange telecommunications services Charitable or nonprofit organization. Any entity organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes; or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earning of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. For purposes of this chapter, an entity's status as exempt from federal and/or state income taxes is in no way a controlling factor in the City's determination of an entity's "charitable" or "nonprofit" status CitY' The City of Wheat Ridge, Colorado. City Code: The Code of Laws of the City of Wheat Ridge, Colorado. Computer software' The internalized instruction code which controls the basic operation (i.e , arithmetic and logic) of the computer, causing it to execute instructions contained in system programs as an integral part of the computer Computer software is also one in which instructions and routines (programs) are determined necessary to program the customer's CNB\53027\409266.05 5 electronic data processing (EDP) equipment to enable the customer to accomplish specific functions with his EDP system. The software may be in the form of (1) Systems programs (except for the instruction codes which are considered tangible property in this definition)--Programs that control the hardware itself and allow it to compile, assemble and process application programs, (2) Application programs--Programs that are created to perform business functions, or control, or monitor process, (3) Pre written (canned) programs--Programs that are either systems programs or application programs and are not written specifically for the user; or (4) Custom programs--Programs created specifically for the user. Construction equipment. All pieces of portable machinery, vehicles and other types of equipment used directly or indirectly to build, erect or otherwise construct buildings, roads, bridges or any construction project or to aid in such building or construction. Construction material' Tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a completed structure or project, including public and private improvements Construction materials include, but are not limited to, such things as asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, steel, stone, stucco, tile, trees, shrubs and other landscaping materials, wallboard, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters and wood preserver. The above materials, when used in forms, or other items which do not remain as an integral or inseparable part of a completed structure or project, are not construction materials. Construction materials do not mclude such things as. carpeting, equipment, furniture, removable fixtures, window coverings or similar items. Construction project: The erection, installation, demolition, alteration, repair or remodeling of a building or structure upon real estate, and any other activity for which a building permit is required under the City Code. Consume' The utilization of any item of tangible personal property in the provision of any service or in the production of any physical product or other item of tangible personal property Consumer Any individual person or persons or entity engaged in business in the City who buys, uses, stores, distributes or otherwise consumes in the City tangible personal property or taxable services purchased from sources inside or outside the City. CNB\53027\4092GG.05 6 Consumer deductions: Those items that may be deducted from gross sales and service on the sales/use tax return. Customer access service charge' Any direct charge by local telephone exchange companies to the consumer Dwelling unit: A building or any portion of a building designed for occupancy as complete, independent living quarters for one (1) or more persons, having direct access from the outside of the building or through a common hall and having living, sleeping, kitchen and sanitary facilities for the exclusive use of the occupants Drugs dispensed in accordance with a prescription or prescrzptlOn drugs: Drugs dispensed in accordance with any order in writing, dated and signed by a licensed practitioner of the healing arts, 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 the medicine, drug or poison is offered and directions, if any, to be placed on the label. Engaged in business in the CitY' Performing or providing services or selling, leasing, renting, delivering or installing tangible personal property for storage, use or consumption within the City. "Engaged in business in the City" includes, but is not limited to, anyone of the following activities by a person: (1) Directly, indirectly or by a subsidiary maintains a building, store, office, salesroom, warehouse, or other place of business within the taxing jurisdiction, (2) Send one or more employees, agents or commissioned sales persons into the taxing jurisdiction to solicit business or to install, assemble, repair, service or assist in the use of its products, or for demonstration for other reasons, (3) Maintains one or more employees, agents or commissioned sales persons duty at a location within the taxing jurisdiction; (4) Owns, leases, rents or otherwise exercises control over personal property, commercial real property or more than ten (10) residential dwelling units within the taxing jurisdiction, or (5) Makes more than one delivery into the taxing jurisdiction within a twelve-month period. Event facility: Banquet halls, reception areas and similar spaces and structures that are used primarily for a purpose other than temporary personal habitation. Exempt commercial packaging materials. Containers, labels and shipping cases sold to a person engaged in manufacturing, compounding, or wholesaling, jobbing, retailing, CNB\S3027\409266.0S 7 packaging, distributing or bottling for sale, profit or use that meets all of the following conditions: (1) Is used by the manufacturer, compounder, wholesaler, jobber, retailer, packager, distributor or bottler to contain or label the finished product; (2) Is transferred by such person along with and as a part of the finished product to the purchaser, and (3) Is not refundable to said person for reuse. Exempt organization- Any governmental, quasi-governmental, religious or charitable organization which has applied for, and been assigned, an exempt institution license from the City of Wheat Ridge Farm closeout sale: Full and final disposal of all tangible property previously used by a farmer or rancher in farming or ranching operations which are being abandoned. Food. Food which is advertised or marketed for human consumption and is sold in the same form, condition, quantities and packaging as is commonly sold by grocers. The term includes cereals and cereal products, milk and milk products; meat and meat products; fish and fish products; eggs and egg products; vegetables and vegetable products; fruit and fruit products, sugar and sugar products and sugar substitutes; coffees and coffee substitutes; teas; cocoa and cocoa products, candy; ice for human consumption; distilled water for human consumption; and spices, condiments, salt and oleo-margarine. The term also includes food or drink served or furnished in or by restaurants, cafes, lunch counters, cafeterias, hotels, drugstores, social clubs, nightclubs, cabarets, resorts, snack bars, caterers, delicatessens, carry out shops and other like places of business at which prepared food or drink is regularly sold, including sales from pushcarts, motor vehicles and other mobile facilities; chewing gum, spirituous, malt or vinous liquor; proprietary medicines, nostrums, lozenges; tonics, carbonated beverages including carbonated water marketed in containers; nonalcoholic cocktail mixes; vitamins and other dietary supplements, pet foods; seeds and plants to grow food, food or drink furnished, prepared or served for consumption at tables, chairs or counters or from trays, glasses, dishes or other tableware provided by the vendor; prepared food or drink sold by vendors who regularly sell for consumption on or near the premises of the vendor, even though such food or drink is sold on a takeout or to-go order and is bagged, packaged or wrapped and taken from the premises of the vendor; and food or drink vended by or through machines on behalf of a vendor Gross sales The total amount received in money, credit, property or other consideration valued in money for all sales, leases, or rentals of tangible personal property or servIces Healthcare facility- An individual or entity engaged in providing medical services, supplies, room and board to individual persons, and providing a place for healthcare services to be conducted. The medical services may be of a therapeutic, diagnostic, prognostic or of a CNB\53027\409266.05 8 rehabilitative nature, Healthcare facilities may include, but not be limited to: health resorts; spas, sanatoriums; sanitariums, rest homes; convalescent homes, hospitals for humans or animals, whether for profit or not-for-profit; wellness centers; psychiatric, vocational, mental or physical rehabilitation centers; extended day care centers, and self-help preventive medicine/education centers. Hotel room, motel room or other accommodations' Any room or other accommodation in any hotel, apartment-hotel, motel, guesthouse, trailer court or park, or any similar place furnishing rooms or other accommodations to any person or animal who, for consideration, uses, possesses or has the right to use or possess, for any reason allowable by law, such room or other accommodation for a total continuous duration of less than thirty (30) days For purposes of establishing the thirty-day period, the accommodation may not be transferred or transferable by one consumer or person or entity to any other consumer, person or entity. License' A City of Wheat Ridge sales and use tax license and/or general business license Linen services. Services involving provision and cleaning of linens, including, but not limited to, rags, uniforms, coveralls and diapers Local exchange company Any person who provides public telephone or telecommunication exchange access lines, mobile telecommunications or channels necessary to effect the transfer of two-way voice communication or other data conveyance from within the City Lodgers' tax' The tax to be collected and remitted by retailers and vendors on lodging services taxed under this chapter. Lodging services: The furnishing of rooms or accommodations by any person, partnership, association, corporation, estate, representative capacity or any other combination of individuals by whatever name known to a person who for a consideration uses, possesses or has the right to use or possess any room in a hotel, inn, bed and breakfast residence, apartment, hotel, lodginghouse, motor hotel, guesthouse, guest ranch, trailer coach, mobile home, auto camp, or trailer court and park or similar establishment for a period of less than thirty (30) days under any concession, permit, right of access, license to use, or other agreement or otherwise. "Lodging services" does not include the furnishing of rooms or facilities for purposes other than personal accommodations such as banquets and receptions Medical equipment: All items of tangible personal property utilized by a physician, dentist or veterinarian, or which is utilized within a healthcare facility, in the rendering or delivery of medical or healthcare services to any person or animal Medical supplies. Drugs dispensed in accordance with a prescription; insulin in all its forms dispensed pursuant to the direction of a licensed physician, glucose useable for treatment of insulin reactions, urine- and blood-testing kits and materials; insulin measuring and injecting devices, including hypodermic syringes and needles; prosthetic devices; wheelchairs and CNB\53027\409266.05 9 hospital beds, drugs or materials when furnished by a doctor as part of professional services provided to a patient, and corrective eyeglasses, contact lenses or hearing aids; provided, that these definitions include items purchased for use by medical and dental practitioners or medical facilities in providing their services, even though certain of those items may be packaged for single use by individual patients after which the item would be discarded Mobile machinery Those vehicles, self-propelled or otherwise, which are not designed primarily for the transportation of persons 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 Municipality Any municipal corporation or similar form of local government in Colorado, or another state, except counties, school districts or special districts, and the City of Wheat Ridge; including any City, town, and City and county, whether organized pursuant to charter, constitution or statute. Newspaper 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. The term "newspaper" does not include' magazines, trade publications or journals, credit bulletins, advertising inserts, circulars, directories, maps, racing programs, reprints, newspaper clipping and mailing services or listings, publications that include an updating or revision service, books or pocket editions of books. Newspaper advertising supplements: Inserts, attachments or supplements that are primarily devoted to advertising and the distribution, insertion or attachment of which is paid for by the advertiser. Open to the public: Any place or event to which admission or access is open to members of the general public. This term includes, without limitation, the following places or events where a charge or fee for admission is imposed upon members of the public' (1) Any performance of a motion picture, stage show, play, concert or other manifestation of the performing arts, (2) Any sporting or athletic contest, exhibit or event, either amateur or professional, (3) Any lecture, rally, speech, dissertation or educational seminar; (4) Any showing, display or exhibition of any type, including art exhibitions, (,NB\53027\409266.05 10 (5) Any restaurant, tavern, lounge or club, whether the admission is called a "cover charge," "door charge" or any other such term. Pay television shall include, but not be limited to, cable, microwave or other television service for which a charge is imposed. Person Any individual, firm, copartnership, 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, or any group or combination acting as a group and the plural as well as singular number Point of destination: The address to which an item is delivered by the seller to the purchaser whether by common carrier, mail or conveyed by the seller. Preprinted newspaper supplements shall mean inserts, attachments or supplements circulated in newspapers that are primarily devoted to advertising and the distribution, insertion or attachment of which is commonly paid for by the advertiser Prescription drug: A substance for human or animal consumption used in the treatment or prevention of disease or other illness, the sale of which is delivered on a written order dated and signed by a member of the healing arts, specifying the name and address of the patient for whom the medical substance is ordered and directions, if any, to be placed on the label or dispensed in the practitioner's office. "Prescription drug" does not include any medical substance which may be purchased by the general public without a physician's prescription except for insulin and insulin injecting and measuring devices. Prescription drugs for animals. Drugs dispensed in accordance with any order in writing, dated and signed by a practitioner, or given orally by a practitioner, specifying the animal for which the medicine or drug is offered and directions, if any, to be placed on the label "Prescription drugs for animals" does not include prescription animal food, medicated shampoos, vitamins and the like Price or purchase price: The price to the consumer, exclusive of any direct tax imposed by the federal government or by this article, and, in the case of all retails sales involving the exchange or property, also exclusive of the fair market value of the property exchanged at the same time and place of the exchange, if: (1) Such exchanged property IS to be sold thereafter m the usual course of the retailer's business; or (2) Such exchanged property is a vehicle and is exchanged for another vehicle and both vehicles are subject to licensing, registration or certification under the laws of this state, including, but not limited to, vehicles operating upon public highways, off-highway recreation vehicles, watercraft and aircraft. Any money or other consideration paid over and above the value of the exchanged property is subject to tax CNB\53027\409266.05 11 "Price" or "purchase price" includes (1) The amount of money received or due in cash and credits; (2) Property at fair market value taken in exchange but not for resale in the usual course of the retailer's business, (3) Any consideration valued in money, such as trading stamps or coupons, whereby the manufacturer or someone else reimburses the retailer for part of the purchase price and other media of exchange; (4) The total price charged on credit sales including finance charges which are not separately stated. An amount charged as interest on the unpaid balance of the purchase price is not part of the purchase price unless the amount added to the purchase price is included in the principal amount of a promissory note; except the interest or carrying charge set out separately from the unpaid balance of the purchase price on the face of the note is not part of the purchase price. An amount charged for insurance on the property sold and separately stated is not part of the purchase price; (5) Installation, delivery and wheeling-in charges included in the purchase price and not separately stated; (6) Transportation and other charges to effect delivery of tangible personal property to the purchaser; (7) Indirect federal manufacturers' excise taxes, such as taxes on automobiles, tires and floor stock; (8) The gross price of articles sold after manufacturing or after having been made to order, including the gross value of all the materials used, labor and service performed and the profit thereon. "Price" or "purchase price" shall not include; (1) Any sales or use tax imposed by the State of Colorado or by any political subdivision thereof; (2) The fair market value of property exchanged if such property is to be sold thereafter in the retailer's usual course of business. This is not limited to exchanges in Colorado Out-of-state trade-in's are an allowable adjustment to the purchase price (3) Discounts from the original price if such discount and the corresponding decrease in sales tax due is actually passed on to the purchaser, An anticipated CNB\53027\409266.05 12 discount to be allowed for payment on or before a given date is not an allowable adjustment to the price in reporting gross sales Prosthetic devices Any artificial limb, part, device or appliance for human use which aids or replaces a bodily function; is designed, manufactured, altered or adjusted to fit a particular individual, and is prescribed by a licensed practitioner of the healing arts. Prosthetic devices include, but are not limited to, prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, oxygen concentrators and oxygen with related acceSSOrIes Purchase or sale: The acqUIsItIon for any consideration by any person of tangible personal property or taxable services that are purchased, leased, rented, sold, used, stored, distributed or consumed, but excludes a bona fide gift of property or services. "Purchase" or "sale" includes capital leases, installment and credit sales, and property and services acquired by (1) Transfer, either conditionally or absolutely, of title or possession or both to tangible personal property; (2) A lease, lease-purchase agreement, rental or grant of a license, including royalty agreement, to use tangible personal property or taxable services; (3) Performance of taxable services, (4) Barter or exchange for other property or services including coupons, and (5) Tangible personal property furnished together with an operator shall be considered a rental if the measurement of the price is time. The terms "purchase" and "sale" do not include. (1) A division of partnership assets among the partners according to their interests in the partnership; (2) The formation of a corporation by the owners of a business and the transfer of their business assets to the corporation in exchange for all the corporation's outstanding stock, except qualifying shares, in proportion to the assets contributed, (3) The transfer of assets of shareholders 111 the formation or dissolution of professional corporations, (4) The dissolution and the pro rata distribution of the corporation's assets to its stockholders; (5) A transfer of a partnership interest; CND\53027\409266.05 13 (6) The transfer in a reorganization qualifying under section 368(a)(I) of the Internal Revenue Code of 1954, as amended; (7) The formation of a partnership by the transfer of assets to the partnership or transfers to a partnership in exchange for proportionate interests in the partnership; (8) The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder; (9) The transfer of assets from a parent corporation to a subsidiary corporation or corporations which are owned at least eighty percent (80 %) by the parent corporation, which transfer is solely in exchange for stock or securities of the subsidiary corporation; (10) The transfer of assets from a subsidiary corporation or corporations which are owned at least eighty percent (80 %) by the parent corporation to a parent corporation or to another subsidiary which is owned at least eighty percent (80 %) by the parent corporation, which transfer is solely in exchange for stock or securities of the parent corporation or the subsidiary which received the assets; (11) The transfer of assets between parent and closely held subsidiary corporation, or between subsidiary corporations closely held by the same parent corporation, or between corporations which are owned by the same shareholders in identical percentage of stock ownership amounts, computed on a share-by-share basis, when a tax imposed by this article was paid by the transferor corporation at the time it acquired such assets, except to the extent that there is an increase in the fair market value of such assets resulting from the manufacturing, fabricating or physical changing of the assets by the transferor corporation. To such an extent any transfer referred to in this paragraph (11) shall constitute a sale. For the purposes of this paragraph (11), a closely held subsidiary corporation is one in which the parent corporation owns stock possessing at least eighty percent (80 %) of the total combined voting power of all classes of stock entitled to vote and owns at least eighty percent (80%) of the total number of shares of all other classes of stock. Purchase price or sales price: The total price paid by the consumer, purchaser or lessee in cash, property, services, coupons or other consideration, exclusive of any direct tax imposed by the federal, state or county government or by this chapter (1) The purchase price or sale price of goods manufactured or made to order includes the full purchase price for material used, and the labor performed in connection therewith, and the profit thereon included in the price charged to the user or customer. CNB\53027\409266.05 14 (2) Purchase price or sales price includes, without limitation, any finance, service or other charge, except when separately stated; installation and delivery fees; transportation and other charges to effect delivery to the purchaser if the sales agreement requires such delivery to consummate the sale; and indirect federal manufacturers' excise taxes, except when separately stated. (3) In the case of a retail sale involving the exchange of property, the purchase price or sales price excludes the fair market value of the property exchanged at the time and place of the exchange if a. Such exchanged property is to be sold thereafter in the usual course of the retailer's business; or b Such exchanged property is an automotive vehicle and is exchanged for another automotive vehicle and both vehicles are subject to licensing, regIstration or certification under the laws of the State of Colorado, including, without limitation, vehicles operating on public highways, off- highway recreation vehicles and watercraft. Purchaser: Any person to whom a taxable service has been rendered or who has leased or purchased at retail tangible personal property within the City upon which a tax is imposed by this chapter. Recreation services: All services relating to athletic or entertainment partIcIpation events including, but not limited to, pool, golf, billiards, skating, tennis, bowling, coin operated amusement devices and video games. Regulations' Those regulations promulgated by the Treasurer pursuant to the authority delegated to him or her by Section 22-3 of this chapter, as the same may be from time to time amended. Retail sales: All sales except wholesale sales, Retailer or vendor: Any person selling, leasing or renting tangible personal property or services at retail Retailer shall include: (1) Auctioneer; (2) Salesperson, representative, peddler or canvasser, who makes sales as a direct or indirect agent of or obtains such property or services sold from a dealer, distributor, supervisor or employer, (3) Charitable organization or governmental entity which makes sales of tangible personal property to the public, notwithstanding the fact that the merchandise sold may have been acquired by gift or donation or that the proceeds are to be used for charitable or governmental purposes. CNll\S3027\409266.0S 15 Return: The standard municipal sales and use tax reporting form, and any subsequent revisions thereto, used to report Wheat Ridge sales and use tax. Rooms or accommodations: A room, suite or similar group of rooms rented or leased for the pnmary purpose of temporary personal habitation. Sale: A retail sale as defined herein. Sales tax: The tax to be collected and remitted by a retailer on sales taxed under this Code Security system services. Electronic security system services for a building or portion thereof. Such term does not include nonelectronic security services such as consulting or human or guard dog patrol services. Sound system services. Sound system services involving provIsIon of broadcast or prerecorded audio programming to a building or a portion thereof. Such term does not include installation of sound systems where the entire system becomes the property of the building owner or the sound system service is for presentation of live performances Storage' The keeping or retention of, the exercise of dominion or control over, or the possession of tangible personal property under lease or purchase at retail from another person within or without the City Tangible personal property Any corporeal personal property which may be seen, weighed, measured, felt or touched. Tax' The use tax due from a consumer or the sales tax due from a retailer or the sum of both due from a retailer who also consumes Tax deficiency: Any amount of tax that is not reported or not paid on or before the due date. Taxable sales' Gross sales less any exemptions and deductions specified in this Code. Taxable services' Services subject to tax pursuant to this Code. Taxpayer- Any person obligated to collect and/or pay tax under the terms of this Code. Telecommunications service: The transmission of any two-way interactive electromagnetic communications, including, but not limited to, voice, image, data and any other information, by the use of any means but not limited to wire, cable, fiber optical cable. microwave, radio wave or any combinations of such media, "Telecommunications service" includes, but is not limited to, basic local exchange telephone service, toll telephone service and teletypewriter service, including, but not limited to, residential and business service, directory assistance, cellular mobile telephone or telecommunication service, specialized mobile radio and two-way pagers and paging service, including any form of mobile two-way CNB\53027\409266.05 16 communication. "Telecommunications service" does not include separately stated nOnIransmission services which constitute computer processing applications used to act on the information to be transmitted. Theater operator- Any person, whether owner, operator, lessee or any other person, who charges or causes to be charged admission to a performance or show at a theater open to the public. Therapeutic device: Devices, appliances or related accessories that are sold to correct or treat a human physical disability or surgically created abnormality; if such device, appliance or related accessory has a retail value of more than one hundred dollars ($100 00), it must be sold in accordance with a written recommendation from a licensed doctor to qualify as a "therapeutic device" for purposes of this Code. Third-party recordkeeper- An entity which has contractually undertaken the duty of collection of accounts from City residents or businesses for taxable services or sales undertaken or occurring within the City, which third-party recordkeeper shall have the rights, duties and obligations as specified in section 22-42(h) hereof. Total tax liability: The total of all tax, penalties or interest owed by a taxpayer and shall include sales tax collected in excess of such tax computed on total sales. Transfer of ownership point. The geographical location at which point the purchaser takes physical or legal possession of the property. Treasurer' The Treasurer, or his designee, including, not by way of limitation, the deputy Treasurer or the finance assistant/sales tax auditor. Use' The exercise, for any length of time, by any person, corporation, partnership or associatIon within the City of any right, power or dominion over tangible personal property by lease or purchase. Use tax' The tax paid or required to be paid by a consumer for using, storing, distributing or otherwise consuming tangible personal property or taxable services inside the CIty Vehicle: Any vehicle or device in, upon or by which any person or property is or may be transported or drawn upon a public highway, including, but not limited to, motor vehicles, trailers, semitrailers, mobile homes, mobile machinery or self-propelled construction equipment, but excluding devices moved by human power or used exclusively upon stationary rails or tracks. Vendor's fee' The portion of total sales tax collected by a licensed taxpayer under the reqUIrements of this chapter that the taxpayer may retain as payment or offset for his expense in collecting and remitting the sales tax collected from taxable sales and leases to purchasers and consumers. The vendor's fee may only be retained when sales tax collected has been CNB\53027\409266.05 17 remitted to the City as prescribed in this chapter. The vendor's fee is set forth at section 22- 40(b) of this chapter WATS/800 service. Any outbound or inbound interstate wide are a telecommunications service or other similar service which entitles the subscriber, upon payment of a periodic charge, based upon a flat amount and/or usage, to make or receive a large volume of telephonic communications to or from persons having telephone or radio telephone stations in specified areas which are outside the telephone system area in which the subscriber's station is located. Wholesale sales. Sales to licensed retailers, jobbers, dealers or wholesalers for resale. Sales by wholesalers to consumers are not wholesale sales. Sales by wholesalers to nonlicensed retailers are not wholesale sales. Wholesaler: Any person selling to retailers, jobbers, dealers or other wholesalers for resale and not for storage, use, consumption or distribution. (b) Usage As used in this chapter and elsewhere, a masculine pronoun shall include the feminine and vice versa, and a singular pronoun shall include the plural and vice versa, unless the context in which the pronoun is used indicates otherwise. (Ord. No. 1988-781, ~ 1(21-1), 12-12-88, Ord. No 1989-804, ~ 1, 8-28-89; Ord, No. 1991- 869, ~ 3, 9-1-91, Ord. No. 1991-885, ~~ 1--4, 12-23-91; Ord. No. 1992-893, ~ 1, 4-13-92, Ord. No 1994-958, ~ 1, 3-14-94, Ord No 1996-1060, ~ 3, 12-16-96; Ord. No. 1997-1075, ~ 1,4-14-97, Ord. No 1998-Il38, ~~ 2, 4, Il-23-98) Sec. 22-22. Legislative intent. It is the intent of the City of Wheat Ridge that all sales, transfers or consumption of tangible personal property within the City shall be subject to the sales and/or use tax imposed hereby, unless the same is specifically exempted from taxation under the provisions of sections 22-58 or 22-67 hereof The City council hereby reaffirms its authority as a home rule City, pursuant to the provisions of article XX of the Constitution of the State of Colorado, and the Home Rule Charter of the City of Wheat Ridge, to "assess, levy and collect" local sales and use taxes as deemed appropriate by the City council in the exercise of its lawful legislative discretion. (Ord. No. 1988-781, ~ 1(21-35), 12-12-88; Ord. No. 1989-804, ~ 2, 8-28-89; Ord. No 1991- 869, ~ 3, 9-1-9I; Ord No. 1991-885, ~ 5, 12-23-91; Ord. No 1996-1060, ~ 4, 12-16-96)State law references: Home rule powers, Col Const. Art. XX, ~ 6 Sec. 22-23. Motor vehicles. (a) No motor vehicle 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 CNB\53027\409266.05 18 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 chapter has not been paid. (b) The determination of the address of registration for the purpose of establishing liability under this chapter for sales or use taxes on motor and other vehicles required to be registered shall be made pursuant to the criteria established in ~ 42-6-139, C.R.S , as such section exists or is hereafter amended. (Ord. No 1988-781, ~ 1(21-26), 12-12-88, Ord. No. 1991-885, ~ 1, 12-23-91) Sees. 22-24--22-32. Reserved. Sec. 22-33. Administrative authority of Treasurer. (a) The administration of this chapter is vested in and shall be exercised by the Treasurer, who shall administratively promulgate and amend, from time to time, forms and reasonable rules and regulations in conformity with this chapter for the making of returns and reports, ascertainment and collection of the tax imposed hereunder, and for the proper administration and enforcement of this chapter. (b) The rules and regulations as prescribed by the Treasurer and, as from time to time are amended by the Treasurer, pursuant to his or her authority specified in paragraph (a) shall be published and appear as appendix A to this chapter The forms developed pursuant to paragraph (a) for making returns and reporting taxes assessed under this chapter shall be published and appear as appendix B to this chapter. (c) The Treasurer shall determine the meaning and application of all terms and provisions of this Chapter, subject to the appeal and review process set forth in Section 22-45. (Ord. No 1988-781, ~ 1(21-36), 12-12-88; Ord. No. 1991-885, ~ 1, 12-23-91) Sec. 22-36. 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 chapter, nevertheless the seller shall collect and the purchaser shall pay such tax. The seller shall thereupon issue to the purchaser an appropriate receipt showing the details of the transaction and disburse the collected, but disputed, tax to the City (1) The purchaser may apply for a refund by submitting to the Treasurer in writing the amount and reason for such refund within sixty (60) days of the date of purchase for the unintentional payment of tax on exempt purchases or an overpayment of taxes reported and paid by any taxpayer to the Treasurer. (2) The Treasurer shall forthwith, after receipt of the application for refund, submit same to the Treasurer for a determination of applicability CNB\53027\409266.05 19 (3) The Treasurer shall disburse to the applicant a refund when such has been approved by the Treasurer or notify the applicant in instances of disapproval by the Treasurer (b) An application for refund of sales or use tax paid by a person who established 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 (3) years after the date of purchase, storage, use or consumption of the goods for which the refund is claimed. (c) All claims for refunds shall be processed in the manner provided in section 22- 45 (d) The provisions of this section are expressly subject to the provisions of sections 22-45 and 22-47 of this Code of Laws (Ord No 1988-781, ~ 1(21-17), 12-12-88; Ord. No 1991-869, ~ 3, 9-1-91; Ord No 1991- 885, ~~ 1,6, 12-23-91) Sec. 22-37. Reserved. Sec. 22-38. Transfer of ownership of business; renewal 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. (b) 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 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-day period, both the purchaser and the seller shall be personally liable, jointly and severally, 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, takes the same subject to the City's lien for unpaid taxes, if any, and shall be liable for the payment of all delinquent sales and use taxes on the value of property so taken or acquired (c) 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 CNB\53027\409266.05 20 (d) The City use tax shall be remitted to the City on the price paid for all fixed assets, tangible personal property and taxable services which are purchased to establish a new business or business location within the City except for those assets, property and services purchased as inventory and intended for re-sale or rental as part of the purchaser's business. All tax due pursuant to this section shall be reported on the initial use tax return and shall be remitted to the City on or before the twentieth day of the month following the opening day of business. Timely filing shall be evidenced by the postmark date. (Ord. No 1988-781, ~ 1(21-29), 12-12-88, Ord. No. 1991-869, ~ 3, 9-1-91, Ord. No 1991- 885, ~ 1, 12-23-91) Sec. 22-39. 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 chapter 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 as provided in subsections (1) and (2) of this paragraph (b), 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 City 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, or the sales tax is not considered an element in the sales price to the consumer. Any person violating any provisions 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 City 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 City sales tax. (c) 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. (d) If any vendor shall, during any reporting period, collect as a tax an amount in excess of the percentages set forth in section 22-56 of his total taxable sales, he shall remit to the 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 CNB\53027\409266.05 21 punctually to the Treasurer the full amount required to be remitted by the provisions of this chapter is hereby declared to be a violation of this chapter. (Ord. No. 1988-781, ~ 1(21-19), 12-12-88; Ord. No. 1991-869, ~ 3, 9-1-91; Ord. No. 1991- 885, ~ 1, 12-23-91) Sec. 22-40. Reports by vendor; payment of tax; monies collected 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 rates specified in section 22-56 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 therein prescribed, less any vendor's fee specified in subsection (b), to cover the taxpayer's cost of collection and reporting. Such vendor's fee is disallowed on any delinquent report. (b) The vendor's fee, as defined in section 22-21, shall be zero percent (0%) of the total sales tax due to the City under this chapter, up to a maximum vendor's fee of zero dollars ($0 00) per reporting period. (c) The reporting period shall be monthly for vendors who exceed a forty dollar ($40 00) tax liability per month, quarterly for a vendor with less than one hundred dollars ($10000) in tax liability per quarter, and annually only upon approval of the Treasurer A report shall be made and tax paid under the provisions of this chapter 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 (d) All monies paid by the purchaser to the retailer as sales taxes, lodgers' taxes, or admission 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. (e) Vendors are specifically prohibited from remitting City taxes to another vendor or entity eIther located within the City or outside the City. Vendors who receive such tax monies from consumers or purchasers are required to remit such monies directly to the City. (f) Failure to comply with the provisions in subsection (e) above resulting m a transfer of the City's taxes to another third party shall be a violation of this chapter (Ord. No. 1988-781, ~ 1(21-20), 12-12-88; Ord. No. 1991-869, ~ 3, 9-1-91; Ord. No 1991- 885, ~ 1, 12-23-91, Ord. No, 1997-1075, ~ 2,4-14-97) CNIJ\53027\409266.05 22 Sec. 22-41. Sales or use tax; deficiency. 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 22-45 Willful disregard of the requirements for reporting and remittance of tax due, or failing to respond within the time specified in the Treasurer's final notice of deficiency, shall, in addition to constituting a violation of the Code, subject the taxpayer to penalties and interest provided in subsections (d) and (h) of section 22- 43 (Ord No. 1988-781, ~ 1(21-21), 12-12-88, Ord No. 1991-869, ~ 3, 9-1-91, Ord. No 1991- 885, ~ 1, 12-23-91) Sec. 22-42. Business records; burden of proof. (a) Presumption; burden to prove exemption. Every transaction of business conducted within the City is presumed to be taxable The burden of proving that any person is exempt from taxation or any article, commodity or transaction is exempt under the provisions of this chapter shall be upon the person asserting the claim for exemption. (b) Responsibility to preserve records 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 chapter or a person requiring a license under section 11-23 or 11-206 hereof to keep and preserve suitable records of all sales and transactions as may be necessary to determine the applicability of the provisions of this chapter thereto, and to keep such invoices, sales memoranda, books and records for a period of three (3) years; and they shall be open at any time for examination by the Treasurer Failure to keep and preserve suitable records as required by this section shall be a violation of this Code. Suitable records include, but are not limited to, the following: (1) Supporting documentation for every line item used on the sales/use tax return. (2) Sales and lease invoices, contracts, (3) Purchase journals and invoices (4) Fixed asset depreciation schedules. (5) Check books and/or check registers. (6) State sales tax returns. (7) Federal and state income tax returns CNB\53027\409266.05 23 (8) Sales journals. (9) Asset ledgers. (10) General ledgers (11 ) Journal entries. (12) Chart of accounts. (13) Financial reports (14) All other supporting documents not listed above. (c) Access to records by City personnel. Business records are to be stored or kept within reasonable access of City personnel Should a taxpayer's business records be maintained at a location outside the City's jurisdiction, the City maintains the right to inspect such records at the taxpayer's location within the City or to require the taxpayer to make the records available at City offices (d) Audit of taxpayer business records. The City maintains the authority to audit, upon reasonable notice, the business records of any taxpayer licensed to engage in business activity within the City If the City provides written notice to the taxpayer prior to the expiration of the thirty-six (36) month statute of limitations that the taxpayer's records will be audited pursuant to this chapter, such limitation period shall be extended until the conclusion of the audit. (e) Place of audit. The City has adopted the policy of auditing a taxpayer's records only at the taxpayer's business location where such business records are routinely kept. Notwithstanding this policy, the Treasurer may, under exceptional circumstances, permit limited scope auditing of a taxpayer's records by mail. Such a determination is solely within the discretion of the Treasurer and is not an appealable issue. (f) Subpoenas to appear and/or produce records. When the Treasurer has scheduled an audit or examination of the records required herein not less than thirty (30) days in advance, and has so notified the taxpayer, and the taxpayer fails to make available the records required in paragraph (b) at the appointed time, the Treasurer may apply to any judge of the municipal court of the City and/or district court in and for Jefferson County for a subpoena to require the taxpayer to appear before the Treasurer, produce any of the foregoing information in the taxpayer's possession, and testify under oath before the Treasurer. If the Treasurer is unable to secure from the taxpayer information relating to the correctness of the taxpayer's return or the amount of the taxpayer's taxable sales, the Treasurer may apply to any judge of the district court in and for Jefferson County or the municipal court of the City for subpoenas to such other persons as the Treasurer believes may have knowledge of the taxpayer's return or income If the Treasurer shows that the taxpayer cannot be found, evades service of subpoena, fails or refuses to produce records or give testimony, the judge may cause CNB\53027\409266.05 24 subpoenas to be issued to the persons sought, requiring them to appear before the Treasurer and give testimony regarding the taxpayer's return or income If any of the persons so served with subpoenas fail to respond thereto, the judge may proceed against such persons as in cases of contempt. (g) Performance of audit not to limit or preclude additional audits. Performance of an audit does not constitute a statute of limitations or preclude additional audits of the same penod withm the parameters of Section 22-44. (h) Third-party recordkeepers. Any third-party recordkeeper, as defined in section 22-21 hereof, shall have all of the rights, duties and obligations of a taxpayer, retailer or vendor solely as the same relates to the recordkeeping and record disclosing obligations imposed upon taxpayers, retailers or vendors by Sections 22-40 and 22-42 hereof; provided, that the City shall attempt to obtain any records or reports from the taxpayer, retailer or vendor prior to its attempts to obtain such records from third-party recordkeepers, and in any event such attempts to obtain records or reports shall only be undertaken after providing notice to the taxpayer, retailer or vendor; provided, further, however that a third-party recordkeeper shall be deemed a taxpayer for all purposes and shall be subject to all of the provisions of this article relating to any and all taxable transactions engaged in by such third-party record keeper . (i) Coordinated audit. (1) Any taxpayer licensed in this City pursuant to section 11-1 or 11-23 of this Code of Laws, and holding a similar sales tax license in at least four (4) other Colorado municipalities that administer their own sales tax collection, may request a coordinated audit as provided herein. (2) Within fourteen (14) days of receipt of notice of an intended audit by any municipality that administers its own sales tax collection, the taxpayer may provide to the Treasurer, by certified mail, return receipt requested, a written request for a coordinated audit indicating the municipality from which the notice of intended audit was received and the name of the official who issued such notice. Such request shall include a list of those Colorado municipalities utilizing local collection of their sales tax in which the taxpayer holds a current sales tax license and a declaration that the taxpayer will sign a waiver of any passage-of-time-based limitation upon this City's right to recover tax owed by the vendor for the audit period (3) Except as provided in subparagraph (6), any taxpayer that submits a complete request for a coordinated audit and promptly signs a waiver of the time limits established in sections 22-42(d) and 22-44(a) of this Code of Laws may be audited by the City during the twelve (12) months after such request is submitted only through a coordinated audit involving all municipalities electing to participate in such an audit. CNB\53027\409266.05 25 (4) If this City desires to partICIpate in the audit of a taxpayer that submits a complete request for a coordinated audit pursuant to subparagraph (3), the Treasurer shall so notify the finance director of the municipality whose notice audit prompted the taxpayer's request within ten (10) days after receipt of the taxpayer's request for a coordinated audit. The Treasurer shall then cooperate with other participating municipalities in the development of arrangements for the coordinated audit, including arrangement of the time during which the coordinated audit will be conducted, the period of time to be covered by the audit, and a coordinated notice to the taxpayer of those records most likely to be required for completion of the coordinated audit. (5) If the taxpayer's request for a coordinated audit was in response to a notice of audit issued by this City, the Treasurer shall facilitate arrangements between this City and other municipalities participating in the coordinated audit unless and until an official from some other participating municipality agrees to assume this responsibility. The Treasurer shall cooperate with other participating municipalities to, whenever practicable, minimize the number of auditors that will be present on the taxpayer's premises to conduct the coordinated audit on behalf of the participating municipalities Information obtained by or on behalf of those municipalities participating in the coordinated audit may be shared only among such participating municipalities. (6) If the taxpayer's request for a coordinated audit was in response to a notice of audit issued by this City, the Treasurer shall, once arrangements for the coordinated audit between the City and other participating municipalities are completed, provide written notice to the taxpayer of which municipalities will be participating, the period to be audited and the records most likely to be required by participating municipalities for completion of the coordinated audit. The Treasurer shall also propose a schedule for the coordinated audit. (7) The coordinated audit procedure set forth in this section shall not apply: a. When the proposed audit is a jeopardy audit; b To audits for which a notice of audit was given prior to the effective date of this section, c When a taxpayer refuses to promptly sign a waiver of the time limits established in sections 22-42(d) and 22-44(a) of this Code of Laws, or d. When a taxpayer fails to provide a timely and complete request for a coordinated audit as provided in such paragraph (2) of this subsectIOn 22-42(i) (Ord No 1988-781, ~ 1(21-30), 12-12-88, Ord. No. 1991-869, ~ 3, 9-1-91; Ord. No 1991- 885, ~~ 1,6. 12-23-91) CNB\53027\409266.05 26 Sec. 22-43. Refusal to report; estimate of tax; emergency collection procedures; penalties and interest. (a) Refusal to report The Treasurer may, in any reasonable manner possible, estimate the amount of the tax due, to which interest and penalties in accordance with paragraph (c) may be added, in the event any taxpayer' (I) Refuses to report and remit taxes collected or required to be collected m accordance with the provisions of this chapter; (2) Fails to comply with the provisions of section 22-68 of this chapter; (3) Fails to file the report and remit the taxes required in section 22-38 of this chapter after selling his business, (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; (6) Engages or intends to engage in any activity which the Treasurer reasonably believes to jeopardize collection of taxes authorized hereunder; or (7) Otherwise engages in conduct likely to prevent the establishment by the Treasurer of an accurate and exact amount of tax due. (b) Estimation of taxes When an estimate of taxes due is made, the taxpayer shall be served with notice of the same by first class 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. (1) 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, the City may serve notice by posting such notice in a conspicuous place at the location of the business as indicated on the business license or application. The burden shall at all times be on the taxpayer to inform the City of the taxpayer I s current address. (2) Unless the taxpayer files a written demand for administrative hearing and determination of tax liability, as provided in section 22-45 hereof, within twenty (20) days from the date of mailing or posting, whichever is later, 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 22-45 hereof. CNB\53027\409266.05 27 (c) Emergency collection procedures. In any case wherein it appears that collection of revenues from taxes lawfully imposed hereby is in danger of risk of loss or noncollection, or otherwise in jeopardy, the Treasurer may immediately issue demand for payment. Upon issuance of such demand for payment, the tax required therein shall be due and payable, and the Treasurer may proceed forthwith to collect such taxes by any lawful means, induding, not by the 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 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 ensure payment to the City of all taxes lawfully owed by taxpayer. (d) Penalty for late payment A penalty shall be imposed on any tax deficiency. Such penalty shall be fifteen dollars ($15.00) or ten percent 00%) of the delinquent tax or deficiency per reporting period, whichever is greater (e) Reserved. (f) Reserved. (g) Penalty for fraud. If any part of delinquent tax or deficiency is due to fraud with the intent to evade the tax, the penalty shall be one hundred percent (100%) of the total amount of the deficiency. The 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 (0) days after the date of the notice of assessment. (h) Assessment of interest. Interest shall be assessed at the rate of one percent (1 %) per month. Interest shall be calculated for each month from the due date that a deficiency remains unpaid. (i) Treasurer may waive penalty. For good cause shown, the Treasurer in his discretion is authorized to waive any penalty assessed in this chapter. For purposes of this section, interest shall never be deemed a penalty, (Ord. No. 1988-781, ~ 1(21-31), 12-12-88, Ord. No. 1991-869, ~ 3, 9-1-91; Ord No. 1991- 885, ~ 1, 12-23-91, Ord. No. 1996-1060, ~ 5, 12-16-96) Sec. 22-44. 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 (3) 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. CNB \5 3027\409266.05 28 (b) In the case of a false or fraudulent return resulting from either an intent to evade tax or from reckless or grossly negligent behavior on the part of the taxpayer, or in the case of failure or refusal to file a return, the tax due, together with all interest and penalties thereon, may be assessed or proceedings for the collection of such taxes may be begun at any time (c) 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 section 22-42(d) of this chapter. (Ord No 1988-781, ~ 1(21-32), 12-12-88, Ord. No 1991-869, ~ 3, 9-1-91, Ord. No 1991- 885, S I, 12-23-91) Sec. 22-45. Taxpayer remedies. (a) 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 first class 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 hearing on the deficiency pursuant to this section. (b) In the event that the taxpayer disputes the tax liability imposed by the City either by any deficiency notice or otherwise, he shall file a written demand for an informal hearing and determination of tax liability within twenty (20) days from the date of mailing 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. (1) Upon receipt of the taxpayer's written demand, the Treasurer shall set the time and place for the hearing, to be held as quickly as possible. The hearing shall be held before the Treasurer or a hearing officer appointed by the Treasurer who possesses 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. (2) Failure to demand an informal hearing and determination of tax liability shall constitute an absolute and final waiver of the right to contest such liability either administratively with the Treasurer, with the executive director of the state department of revenue pursuant to Section 29-2-106.1(3), Colorado Revised Statutes, or by judicial review pursuant to Section 29-2-106.1(8), Colorado Revised Statutes 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. CNB\53027\409266.05 29 (3) The hearing provided in subparagraph (b)(l) above shall be informal and no transcript, rules of evidence or filing of briefs shall be required, but the taxpayer and the City may elect to submit written information and present informal witness testimony The hearing shall be held and a decision issued within ninety (90) days after the receipt of the taxpayer's written request therefor. The Treasurer or appointed hearing officer 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 hearing shall be held and a decision issued within one hundred and eighty (180) days of the taxpayer's request in writing therefor. (c) If the dispute was not resolved by the informal hearing, the taxpayer, pursuant to the express authority of C.R.S 29-2-106 1(9), may elect to pursue one of the following avenues of appeal within thirty (30) days of the City's final decision: (1) The taxpayer may request a formal hearing on the record before a hearing officer, who shall be selected from among other metropolitan Denver Treasurers/finance directors, or who shall be a neutral arbitrator selected by agreement of the parties The hearing shall be held within sixty (60) days of the taxpayer's request. Those costs of compensation to the hearing officer and transcription costs shall be divided equally between the City and the taxpayer. CNB\S3027\409266.0S a. The formal hearing will be on the merits and on the record. The taxpayer shall be responsible for retention of his own legal counsel, if he chooses to be so represented. A transcript of the hearing will be maintained and the Colorado Rules of Evidence shall be observed unless otherwise agreed by the parties. The City shall not be entitled to file a legal brief unless the taxpayer chooses to submit such a brief or statement of legal authorities. The parties may call witnesses who will be subject to cross- examination. b Upon notice to the taxpayer that the City has granted the taxpayer a formal hearing, the taxpayer shall deposit with the City fifty percent (50%) of the amount of the tax deficiency in dispute. The taxpayer will also pay to the City all amounts of tax and related penalties and interest not in dispute The taxpayer may request permission of the Treasurer to post security or a bond in lieu of cash payment of the amount in dispute, which request will be granted by the Treasurer if the Treasurer, in his sole discretion, determines the bond or security is adequate to protect the City's interest. Failure to post the cash or security required herein shall result in the denial of taxpayer's appeal. c In the event the final decision denies the taxpayer's claims, such taxes, penalties and interest unpaid shall become immediately payable without further notice of demand for payment by the City The City may use all 30 additional remedies to collect unpaid taxes, penalties and interest as provided for under section 22-46 d. 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) The taxpayer may request the executive director of the department of revenue to conduct a hearing in accordance with C.R.S. ~ 29-2-106.1(3). (3) The taxpayer may appeal the City's final decision to district court if the criteria of C R.S ~ 29-2-106 1(8) are met. (d) The taxpayer shall have no right to any form of appeal under subsection (c) of this section if he has not exhausted administrative remedies or if he fails to pursue one of the avenues of appeal within the time period described therein. For purposes of this paragraph, "exhaustIon of administrative remedies" means (1) The taxpayer has timely requested in writing an informal hearing before the City in accordance with subsection (b) of this section and the City has held such hearing and issued a final decision thereon; or (2) The taxpayer has timely requested in writing an informal hearing before the City in accordance with subsection (b) of this section and the City has failed to hold such hearing or has failed to issue a final decision within the time period described therein. (e) In the event the City's final decision denies the taxpayer's claims, such taxes, penalties and interest unpaid shall become immediately payable without further notice of demand for payment by the City, The City shall use all additional remedies to collect unpaid taxes, penalties and interest as provided for under section 22-46. (Ord. No. 1988-781, ~ 1(21-33), 12-12-88; Ord. No 1989-804, ~ 3,8-28-89; Ord. No. 1991- 869, ~ 3, 9-1-91, Ord. No. 1991-885, ~~ 1,5,12-23-91, Ord. No 1996-1060, ~ 6, 12-16-96) Sec. 22-46. Additional remedies of City. (a) Any tax imposed by this chapter, 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 and shall take precedence over all other claims and mortgages 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 tangible and intangible personal property owned or leased by any person. CNB\S3027\409266.0S 31 (b) Any lien arising under this section 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 thirty (30) days' public notice by publication not less than two (2) 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 provided for as set out in section 11-34(d) of this Code of Laws and a copy of such notice shall be filed in the public 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 rules of procedure for 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, (t) The Treasurer may treat any taxes, penalties or interest due and unpaid as a debt due the City from the taxpayer. (I) 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, and the costs of collection incurred by the City, in the Wheat Ridge Municipal Court or 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. (2) The return of the taxpayer or the assessment made by the City, as herein provided, shall be prima facie proof of the amount due. (3) 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. CNB\53027\409266.05 32 (4) 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 or 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 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 chapter, the term "taxpayer" shall include "retailer" or "vendor." (h) It shall be a violation of this chapter to fail or 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 prepare such returns in a reckless or grossly negligent manner, to fail or refuse to make timely payment to the Treasurer 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 attempt to evade the timely payment of tax imposed by this chapter. (1) In his discretion, the Treasurer may direct the issuance of a summons and complaint to appear before the Wheat Ridge Municipal Court to any person who may be in violation of any of the provisions of this chapter or the rules and regulations promulgated by the Treasurer to enforce this chapter. (2) Any person, corporation, partnership, company, association or other entity which violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction of such violation, shall be subject to the penalties set forth in section 1-5 of this Code. Issuance of a summons and complaint by the City and subsequent conviction of a violation of the Code of Laws in the municipal court shall not prohibit the court from requiring payment of all taxes, penalties and interest found to be due under this chapter in addition to any fine imposed by the court. Each and every twenty-four hour period of violation shall constitute a separate violation of this chapter. (3) Nothing contained in this paragraph (h) shall preclude the Treasurer from instituting a legal or equitable action in the Jefferson County District Court for the purposes of enforcing the provisions of this chapter. In the event such an action is undertaken, the City shall be entitled to recover its attorney's fees and costs of litigation expended in said action as a portion of its judgment rendered therein. CNB\53027\409266.05 33 (i) In any action affecting the title to real estate or the ownership or rights to possession of personal property, the City may be made a party defendant for the purpose of obtaining an adjudication or determination of its lien upon the property involved therein. (j) For the purpose of facilitating settlement and distribution of estates, trusts, receivership, other fiduciary relationships and the assets of corporations in the process of dissolution or that have been dissolved, the Treasurer may agree with the fiduciary or surviving corporate directors upon an amount of taxes due from the decedent or from the decedent's estate, the trust, receivership or other fiduciary relationship, or corporation for any periods of tax liability under this chapter Payment in accordance with such agreement fully satisfies the tax liability for the periods that the agreement covers, unless the taxpayer has committed fraud or malfeasance or misrepresented a material fact regarding the tax or liability therefor (1) Except as provided in subsection (3) of this paragraph (j), any personal representative of a decedent or the estate of a decedent, any trustee receiver, or other person acting in a fiduciary capacity, or any director of a corporation in the process of dissolution or that has been dissolved shall first pay taxes covered by this chapter due from such decedent, decedent's estate, trust estate, receivership, or corporation before he distributed the estate or fund under such person's control Any such person who fails to pay taxes assessed within the periods authorized by this chapter is personally liable to the extent of the property distributed by such person for any unpaid taxes of the decedent, decedent's estate, trust estate, receivership, or corporation imposed by or due under this chapter (2) Any distributee of a decedent's estate, a trust estate, or fund and the stockholder of any dissolved corporation who receives any of the property of such decedent's estate, trust estate, fund, or corporation is personally liable for taxes assessed pursuant to this chapter to the same extent that the decedent, trust estate, fund or corporation is liable under this chapter (3) If a tax under this chapter is due from a decedent or the decedent's estate, personal liability of the persons set forth in this section remains in effect only if a determination of the tax due is made and notice and demand therefor issued within eighteen (18) months after the decedent's personal representative files with the Treasurer a written request for such determination, filed after it has filed the decedent's final return or the decedent's estate's return to which the request applies. A request for determination under this subsection does not extend the otherwise applicable period of limitation as specified in section 22- 44 (4) If a tax under this chapter is due from a corporation that is in the process of dissolution or has been dissolved, personal liability of directors or stockholders as provided in this section remains in effect only if a determination of the tax CNB\53027\409266.05 34 due is made and notice and demand therefor issued within eighteen (18) months after the corporation files with the Treasurer a written request for such determination. Such request is required to be filed with the Treasurer within ten (10) days from the time such dissolution has began. (k) For property seized pursuant to a distraint warrant, SIgned inventory of the property distrained shall be made by the Treasurer. Prior to the sale, the City shall provide to the owner or possessor of such property, via first class mail, a copy of said inventory, a notice of the sum of the tax due and the related expenses incurred to date, and the time and place of the sale (1) A notice of the time and place of the sale, together with a description of the property to be sold, shall be published in a newspaper of general circulation within the county where distraint is made. (2) The time fixed for the sale shall not be less than thirty (30) days nor more than sixty (60) days from the date of distraint. The sale may be postponed by the Treasurer for no more than ninety (90) days from the date originally fixed for the sale (3) The property shall be sold at public auction for not less than a fair minimum price, and if the amount bid for the property is less than the fair minimum price so fixed, the property may be declared to be purchased by the City and the City shall file a release of lien thereof If the property is purchased by the City, such property may be disposed of in the same manner as other City property and the lien thereon shall be released. (4) The property may be offered first by bulk bid, then subsequently for bid singularly or by lots, and the City or its agent may accept the higher bid. (5) The property offered for sale may be redeemed if the owner or possessor or other person holding an unperfected chattel mortgage or other right of possession pays the tax due and all collection costs no less than twenty-four (24) hours before the sale (6) The Treasurer shall issue to each purchaser a certificate of sale which shall be prima facie evidence of its right to make the sale and transfer to the purchaser all right, title and interest of the taxpayer in and to the property sold. a. When the property sold consists of certificates of stock, the certificate of sale shall be notice to any corporation, company, or association to record the transfer of its books and records. b When the property sold consists of securities or other evidences of debt, the certificate of sale shall be good and valid evidence of title. CNB\S3027\409266.0S 35 (7) Any surplus remaining after satisfaction of the tax due plus any costs of makmg the distraint and advertising the sale may be distributed by the Treasurer first to other jurisdictions which have filed liens or claims of sales and use or personal property ad valorem taxes, and second to the owner, or such other person having a legal right thereto. (1) Property of the taxpayer subject to distraint shall include the personal property of the taxpayer and the goods, stock in trade and business fixtures owned or used by any taxpayer including those used under lease, installment sale, or other contract agreements. (m) The taxpayer or any person who claims an ownership interest or right of possession in the distrained property may petition the Treasurer, or the municipal court if the property was seized pursuant to a warrant used by the court, for the return of the property (1) Grounds for return of the property shall exist only if the person making the petition has a perfected interest in such property which is superior to the City's interest or that the property is exempt from the City's lien. (2) The Treasurer or municipal court, as appropriate, shall receive evidence on any issue of fact necessary to the decision of the petition. If the fact finder determines by a preponderance of the evidence in favor of the taxpayer or other petitioner, the property shall be returned. (n) Unless the limitation period has been extended as provided in this section, the statute of limitations for provisions contained in this chapter shall be as follows: (1) Refunds. Any claim for refunds for disputed tax shall be submitted to the Treasurer on or before sixty (60) days from the date of such purchase a. Any claim for refund resulting from a notice of overpayment shall be submitted to the City on or before thirty (30) days after the date of such notice of overpayment. b Any other claim for refund shall be filed on or before three (3) years after the date such overpayment was paid to the City. (2) Assessments. Except as provided by Section 22-44(b), no notice of assessment shall be issued more than three (3) years after the due date of such tax due, or for a construction project which requires a City building permit, the date the final certificate of occupancy was issued for such project. (3) Notice of lien. Except as provided by Section 22-44(b), no notice of lien shall be issued more than three (3) years after the due date of the tax. If the limitation period is extended, a notice of lien may be filed on or before thirty (30) days from the date of the notice of assessment issued for such extended period. CNB\53027\409266.05 36 (4) Protest No protest of a notice of assessment or denial of a claim for refund shall be valid if submitted to the Treasurer in other than written form or after the period allowed in this chapter. (Ord No 1988-781, ~ 1(21-34), 12-12-88; Ord. No. 1991-869, ~ 3, 9-1-91; Ord. No 1991- 885, S 1, 12-23-91, Ord. No 1996-1060, S 7,12-16-96; Ord. No 1998-1120, S 10,6-8-98) Sec. 22-47. Intercity claims for recovery. The intent of this section is to streamline and standardize procedures related to situations where tax has been remitted to the incorrect municipality It is not intended to reduce or eliminate the responsibilities of the taxpayer or vendor to correctly pay, collect, and remit sales and use taxes to the City. (1) As used herein, "claim for recovery" means a claim for reimbursement of sales and use taxes paid to the wrong taxing jurisdiction. (2) When it is determined by the Treasurer that sales and use tax owed to the City has been reported and paid to another municipality, the City shall promptly notify the vendor that taxes are being improperly collected and remitted, and that as of the date of the notice the vendor must cease improper tax collections and remittances. (3) The City may make a written claim for recovery directly to the municipality that received tax and/or penalty and interest owed to the City, or, in the alternative, may institute procedures for collection of the tax from the taxpayer or vendor. The decision to make a claim for a recovery lies in the sole discretion of the City Any claim for recovery shall include a properly executed release of claim from the taxpayer and/or vendor releasing its claim to the taxes paid to the wrong municipality, evidence to substantiate the claim, and a request that the municipality approves or denies, in whole or in part, the claim within ninety (90) days of its receipt. The municipality to which the City submits a claim for recovery may, for good cause, request an extension of time to investigate the claim and approval of such extension by the City shall not be unreasonably withheld. (4) Within ninety (90) days after receipt of a claim for recovery, the City shall verify to its satisfaction whether or not all or a portion of the tax claimed was improperly received, and shall notify the municipality submitting the claim in writing that the claim is either approved or denied in whole or in part, including the reasons for the decision. If the claim is approved in whole or in part, the City shall remit the undisputed amount to the municipality submitting the claim within thirty (30) days of approval. If a claim is submitted jointly by a municipality and a vendor or taxpayer, the check shall be made to the parties jointly. Denial of a claim for recovery may only be made for good cause, CNIJ\53027\409266.05 37 (5) The City may deny a claim on the grounds that it has previously paid a claim for recovery arising out of an audit of the same taxpayer. (6) The period subject to a claim for recovery shall be limited to the thirty-six (36) month period to the date the municipality that was wrongly paid the tax receives the claim for recovery (Ord. No 1991-885, ~ 6, 12-23-91) Sec. 22-48. Notice of sales and use tax ordinance amendment. (a) In order to initiate a central register of sales and use tax ordinances for municipalities that administer local sales tax collection, the Treasurer shall file with the Colorado Municipal League prior to the effective date of this section. (b) In order to keep current the central register of sales and use tax ordinances for municipalities that administer local sales tax collection, the Treasurer of the City shall file with the Colorado Municipal League, prior to the effective date of any amendment, a copy of each sales and use tax ordinance amendment enacted by the City. (c) Failure of the City to file such ordinance or ordinance amendment pursuant to this section shall not invalidate any provision of the sales and use tax ordinance or any amendment thereto. (Ord No 1991-885, ~ 6, 12-23-91) Sec. 22-49. Participation in simplification meetings. The Treasurer shall cooperate with and participate on an as needed basis with a permanent statewide sales and use tax committee convened by the Colorado Municipal League which is composed of state and municipal sales and use tax officials and business officials Such committee will meet for the purpose of discussing and seeking resolution to sales and use tax problems which may arise (Ord. No. 1991-885, ~ 6, 12-23-91) Sec. 22-50. Confidentiality of information and records. (a) Except in accordance with judicial order or as otherwise provided by law, the Treasurer, outside agents of the City, clerks and employees thereof, shall not divulge or make known in any way any confidential commercial, financial, geological or geophysical data disclosed in any document, report or return filed under this chapter. (b) Nothing in this section shall be construed to prohibit the delivery to a person or a duly authorized representative thereof of a copy of any return or report filed in connection with such person's tax. Copies of such records may be certified by the City manager or an CNB\53027\409266.05 38 agent thereof and when so certified shall be evidence equally with the originals and may be received as evidence of their contents (c) Nothing in this section shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof or the inspection of returns by the City attorney or other legal representatives of the City (d) Notwithstanding the provisions of this section, the Treasurer may furnish to the taxing officials of the State of Colorado, its political subdivisions, any other state, or political subdIvision, or the United States, any information contained in tax returns and related documents filed pursuant to this title or in the report of an audit or investigation made with respect to a return, if the recipient jurisdiction agrees with the Treasurer to grant similar privileges to the City and if such information is to be used by the jurisdiction only for tax purposes (Ord. No 1988-781, ~ 1(21-31), 12-12-88, Ord. No 1991-869, ~ 3, 9-1-91, Ord No 1991- 885, ~ 1, 12-23-91; Ord. No. 1996-1060, ~ 5,12-16-96) Sees. 22-51--22-55. Reserved. DIVISION 2. SALES TAX Sec. 22-56. Schedule. (a) There is hereby imposed a sales tax on all sales and services not specifically exempted in sections 22-56 or 22-58, in the amount of two percent (2 %) of the purchase price. The City considers each and every sale within the City to be taxable, unless the same is specifically exempted by this chapter. In order to avoid fractions of pennies, the following brackets shall be applicable to all taxable transactions: (I) On sales amounting to nineteen cents ($0.19) to and including eighty-four cents ($0.84) a tax of one cent ($0,01); (2) On sales amounting to eight-five cents ($0.85) to and including one dollar and eighteen cents ($1 18) a tax of two cents ($0.02), (3) On sales in excess of one dollar ($1 00), the tax shall be two cents ($0.02) 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. (b) The lodgers' tax imposed pursuant to Article II of this Chapter is imposed in lieu of the City sales tax imposed by this Division of Article I However, the sale of any goods, services and commodities other than the furnishing of rooms or other accommodations shall be subject to the sales tax imposed hereby. CNB\53027\409266.05 39 (Ord No 1988-781, S 1(21-18), 12-12-88; Ord. No 1991-869, S 3, 9-1-91; Ord. No 1991- 885, @ 1, 12-23-91; Ord. No. 1992-893, @ 2, 4-13-92, Ord. No. 1997-1104, S 1, 12-22-97, Ord No 1998-1138, S 5, 11-23-98) Sec. 22-57. Property and service subject to tax. The sales tax imposed by section 22-56 above shall apply to all sales and services, including without limitation those described below, that are not specifically exempted in sections 22-56 or 22-58 of this Code (1) Retail sales. 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, 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 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, except as specified under the definition of "price" or "purchase price" under section 22-21 hereof. (2) Leases or rentals. If tangible personal property is purchased for use exclusively in the rental or leasing business and is not at any time used for the purchaser's general business or personal use, use tax is not due upon the purchase of the tangible personal property, but a sales tax is due upon the rental or leasing of tangible personal property used in the rental or leasing business, regardless of whether a sales or use tax has been paid upon a previous purchase of the property. (3) Telecommunications services There shall be imposed a tax upon the sale of telecommunications services, whether furnished by public or private corporations or enterprises for all intrastate, interstate and international telecommunications service charged to an apparatus, telephone or account within the City, or to a customer location within the City, or to a person residing in the City, without regard to where the bill for such service is physically received. For purposes of this section, "telecommunications service" includes the installation of any telecommunications equipment or apparatus A credit shall be allowed to the extent provided in section 22-66(e) for any telecommunications services subject to the tax herein that are also subject to a sales tax outside of this City if such tax is correctly assessed. (4) Energy sales. Upon the charge within the City for electrical energy and natural or manufactured gas sold for domestic or commercial consumption and not for resale. CNB\53027\4092GG.05 40 (5) Meals. Meals furnished in any restaurant, eating house, hotel, motel, drugstore, club, resort or other place as follows: a. On the selling price of meals, whether sold to the public or to employees before the amount of dIscount coupons are applied. b. On the cost of meals which are given to employees in return for their labor or services rendered or otherwise given away. This cost shall include all direct materials and labor costs associated with the production of the meals, and all indirect overhead costs associated and attributable to the production of the meals Indirect overhead shall utilize "full absorption" as defined and utilized in U,S Treasury tax statutes and Internal Revenue Service regulations, (6) Pay television 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 (7) Vending machines 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 22-56 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 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. (8) Sales to banks. On the purchase price paid for sales of tangible personal property purchased at retail to national banking associations and banks for use within the City (9) Manufacturing equipment. Machinery, machine tools and specific processing equipment and repair parts and replacements thereof used in manufacturing or processing tangible personal property (10) Clothing On the entire amount charged for clothing purchased at retaiL (11) Resale. Upon used merchandise which has previously been purchased and which has been remanufactured or rebuilt and, as so remanufactured or rebuilt, has been sold to a subsequent owner. CNB\53027\409266.05 41 (12) Farm equipment Upon farm equipment not titled or registered as a motor vehicle. (13) Software services. On the design, development, writing, translation, fabrication, mamtenance, lease or transfer of computer program (software) services (14) Storage units. On the total lease or rental charges for storage lockers/units located within the City. (15) Amusement or entertainment events On the price of admission for any amusement or entertainment event as specified in section 22-56. (16) Auction, farm or estate sale. On sales made at an auction, farm closeout sale or estate sale held within the City (17) Tobacco products The sale of any tobacco product which is not a cigarette is subject to sales tax. (18) Fund raising organizations. The cost of all materials, equipment, supplies purchased and/or used or consumed by fund raising organizations, other than such organizations qualifying as exempt organizations, is taxable Fund raising organizations, whether or not qualifying as exempt institutions, must collect and remit sales taxes on any sales they may conduct. (19) Florists and food delivery All retail sales of one hundred dollars ($100.00) or more by a florist or restaurant that delivers meals are taxable, and all orders taken by florists or delivery restaurants within the City and telephoned, faxed, electronically mailed, or otherwise communicated to florists or delivery restaurants outside the City are subject to the City sales tax. When a florist or delivery restaurant within the City receives an order from a florist or delivery restaurant outside the City, the sale is exempt from City sales tax. (20) Rental of event facility. City sales tax is due on the consideration paid for the right to use or possess any event facility. (21) Scope of tax authority. For the purpose of this chapter, tax is due on all items delivered into or out of the City at the point of destination or wherever transfer of ownership takes place. (22) Medical supplies and medical equipment. All medical supplies and medical equipment, as herein before defined, except those specifically exempted pursuant to subsections (25) and (25.5) of section 22-58 hereof, shall be taxable, either as a sales tax to the ultimate consumer (i.e., patient) or as a use tax payable by either the health care facility, physician, dentist or veterinarian utilizing, making available for utilization or consumption by others, or consuming the medical supplies or equipment in the provision of health care C:-IB\53027\409266.05 42 services, In the event either the City's sales or use tax is paid on any nonexempt medical supply or item of medical equipment at the time of its purchase by the nonexempt health care facility, physician, dentist or veterinarian, there shall not be a sales tax imposed on any further sale or consumption of such medical supply or item of medical equipment, the intent being to subject all transactions involving nonexempt medical supplies and equipment to either the sales tax or the use tax, but not both. (23) Other services. On the consideration paid for any linen services, sound system services, alarm and/or security system services, advertising services, credit bureau services, marketing or information agency services and such other services specified by regulation promulgated hereunder Sec. 22-58. Exempt sales. (a) Enumeration of exempt items of sales and service. There shall be exempt from laxation under the provisions of this chapter the following' (1) 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 (2) All direct sales to, but not sales by, charitable organizations, as defined in section 22-21, in the conduct of their regular religious, charitable, and eleemosynary functions and activities, provided, however, that building materials and supplies shall be subject to use tax as provided in section 22-68 hereof. Any exempt organization which makes sales of tangible personal property to the public and which otherwise meets the definition of a retailer in section 22-21 must have 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. (3) All sales to organizations which have previously obtained from the City exempt institution licenses and have presented the licenses to the vendor at the time of their purchases. (4) All sales which the City is prohibited from taxing under the constitution or laws of the United States or the State of Colorado. (5) All sales of cigarettes, excluding tobacco products. (6) Food purchased with food stamps or WIC (Women, Infant & Children) vouchers. CNB\53027\409266.05 43 (7) All charges for rooms and accommodations except that such charges are subject to the tax imposed under sections 22-56 and 22-100, which tax is subject to the same requirements and obligations and provisions as are sales taxes. (8) Motor fuel upon which there has been accrued or has been paid either the gasoline tax or special fuel tax required by ~ 39-27-102, C.R.S., and which is not subject to refund. (9) 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. (10) The sale of legal publications as defined in ~ 24-70-102, C R.S. (11) The sale of construction materials, as defined in section 22-21, if the purchaser of such materials presents to the retailer a building permit or other documentation acceptable to the City evidencing that another municipality's local use tax was correctly assessed or is required to be paid on the materials. (12) 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 22-56. 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 22- 56. (13) 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. (14) 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 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 proper credit may be taken against the tax due on the next subsequent return. (15) All sales of tangible personal property if the following conditions exist: CNB\S3027\409266.0S 44 a. The sales are to those who reside or do business outside the City for their use outside the City; and b Seller retains legal ownership of property until purchaser actually takes possessIon. (16) 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. (17) All sales of farm machinery, machinery parts, livestock, poultry, and livestock and poultry feed and drugs, seeds and fertilizers to purchaser 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 (18) All permits, licenses, service charges, fines and assessments, for benefit or penalty, charged by and in accordance with the Code of the City. (19) All sales of personal property, where the sale occurs at the residence of the owner, and where the property to be sold was originally purchased for use by members of the household (i e, garage sales, yard sales, etc.); provided, however, that such sales shall not be exempt if the owner conducts more than four (4) three-consecutive-day sales in a one-year period. (20) All wholesale sales or sales of tangible personal property purchased for resale; provided that the purchaser has a valid State of Colorado or City sales and use tax license. (21) 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: a. The property is transformed in fact by the process of manufacture, b. The property becomes by the manufacturing processes a necessary and recognized ingredient, component and constituent part of the finished product; and c The physical presence of the property in the finished product is essential to the use thereof in the hands of the ultimate consumer. d. Additional factors to be considered are the nature of the purchaser's contractual obligations, if any, to use, alter or consume the property to produce goods or perform services, the degree to which the items in question are essential to the purchaser's performance of those CNB\53027\409266.05 4S obligations; the degree to which the purchaser controls the manner in which the items are used, altered or consumed prior to their transfer to third parties, and the degree to which the form, character or composition of the items when transferred to third parties differs from the form, character or composition of these items at the time they were initially purchased. (22) 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 wholesale sale when it meets all of the following conditions' a. The property is used by the manufacturer or compounded to contain or label the finished product so manufactured or compounded; b The property is sold by the manufacturer or compounder along with and as a part of the finished product; and c The property is not returnable to the manufacturer for reuse. (23) 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. (24) The exemption stated herein shall not include natural gas and/or electricity used in the processing or manufacturing of goods or commodities or substances. (25) All sales of drugs dispensed in accordance with a prescription, prescription drugs for animals, all sales of insulin in all its forms dispensed pursuant to the direction of a licensed physician, and all sales of prosthetic devices for humans and animals. (25.1)--(25.4) Reserved. (25 5) Notwithstanding paragraphs (2) and (3) of this subsection 22-58(a), all medical supplies and medical equipment which are purchased by, or for use and/or consumption within, a charitable or not-for-profit health care facility to which an exempt institution license has been issued by the Treasurer, only when such facility: (i) employs more than one hundred (lOa) persons within the City, (ii) provides more than one hundred (100) hospital bed spaces on an ongoing basis, and (iii) enters into an agreement, approved by the Wheat Ridge City Council, provided for ongoing payments to the City relating to the mutual services provided by and between the City and the health care facility. (26) Reserved. CNB\53027\409266.05 46 (27) All sales of electrical energy and natural or manufactured gas sold for direct use in the commercial growth of plants and flowers for sale, whether wholesale or retail. (b) Increase by implication or similarity prohibited. The foregoing hst of exemptions shall not be mcreased by implication or similarity, (c) Exemptions allowed on return. Retailers or vendors shall not have to remit sales tax reported on their returns for deductions from gross sales If included in reported gross sales, the following are deductible from gross sales, (1) Refunds The price of tangible personal property or taxable services returned by a purchaser when the price and the sales tax collected are refunded in cash or by credit. (2) Bad debts Amounts previously included in gross sales and related sales tax remitted to the City which are determined to be uncollectible amounts by the vendor may be included as bad debts. Only vendors using the accrual basis of accounting from gross sales may claim a bad debt deduction. (3) Interest and finance charges. The amount of interest or finance charges on credit extended in connection with any sale if the interest or finance charges are separately stated from the price and included in "gross sales" on previously filed returns. (Ord. No. 1988-781, ~ 1(21-16), 12-12-88; Ord. No 1989-804, ~ 4,8-28-89; Ord. No 1991- 869, ~ 3, 9-1-91, Ord. No 1991-885, ~~ 1, 6, 12-23-91, Ord. No. 1992-893, ~ 7, 4-13-92, Ord. No 1996-1060, ~~ 8, 9, 12-16-96) Sees. 22-59--22-65. Reserved. DIVISION 3 USE TAX Sec. 22-66. Property subject to tax. (a) General intent; filing of return required. It is hereby declared to be the legislative purpose and intent of the City council that for the purposes of this article every person who, on and after the effective date of this chapter, stores, uses, distributes, consumes or receives a grant of a license to use 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 in the amount of two percent (2 %) of the purchase price It is hereby declared that every resident of the City or any person doing business within the City who purchases, leases or receives a grant of a license to use 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 City sales tax imposed by this chapter, shall make an application, file a return, and pay the tax to the City The use, storage or CNB\53027\409266.05 47 consumption of tangible personal property includes, for the purpose of this chapter, materials, commodities and items of tangible personal property affixed to, or made a part of, facilities and structures on real property owned or leased within the City. (b) Acquisition of business. The City 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 III 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 initial 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) Taxation of leases (I) 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 subsection (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 paragraph (e) (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 applied to construction equipment. C'NB \5302 7\409266.05 48 Proration of the use tax shall be applied to construction equipment as follows. (1) Construction equipment located within the boundaries of the City for more than thirty (30) consecutive days shall be subject to the full applicable use tax of the City (2) Construction equipment which is located within the boundaries of the City for thirty (30) consecutive days or fewer shall be subject to the City's use tax as follows. the purchase price of the equipment shall be multiplied by eight and three-tenths percent (8.3 %), the result of which shall be multiplied by two percent (2%), the result of which shall be the amount of use tax due. (3) Where the provisions of subsection (d)(2) of this paragraph 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 to two percent (2 %). In order to avail itself of these procedures, the taxpayer shall: a. Prior to or on the date the equipment is located within the boundaries of the City, the taxpayer shall file with the City an equipment declaration on a form provided by the City Such declaration shall state the dates on which the taxpayer anticipates the equipment will be located within and removed from the boundaries of the City, shall include a description of each such anticipated piece of equipment, and shall include such other information as reasonably deemed necessary by the City. b. 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. c. The credit provisions of paragraph (e) shall not apply. (e) Credit for sales or use tax previously paid to another municipality. (1) The City's sales and use tax shall not apply to the storage, use or consumption of any article of tangible personal property the sale or use of which has already been subjected to a sales or use tax of another statutory or home rule municipality legally imposed on the purchaser or user equal to or in excess of two percent (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 CNB\53027\409266.05 49 rule mUlllcipality on his purchase or use of the property. The amount of the credit shall not exceed two percent (2 % ). (2) Credit shall not be given for use tax or warehouse tax paid to another jurisdiction if such tax was Improperly assessed or Imposed by the other jurisdiction. (Ord No. 1988-781, ~ 1(21-22), 12-12-88; Ord. No 1991-869, ~ 3, 9-1-91, Ord. No 1991- 885, ~ I, 12-23-91, Ord. No 1996-1060, ~~ 10, 11, 12-16-96; Ord. No. 1997-1104, ~ 2, 12- 22-97) Sec. 22-67. Exemptions. There shall be exempt from the tax provided III section 22-66, the storage, use, distribution and consumption of the following. (1) 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 (2) Tangible personal property which if it were sold at retail within the City would be exempt from sales tax under the provisions of section 22-58; provided, however, that any building materials and supplies shall be subject to use tax as provided in section 22-68 hereof without limitation of the foregoing, this provision shall apply where tangible personal property is utilized or consumed by a charitable organization, as defined in section 22-21, in the conduct of its regular religious, charitable or eleemosynary functions and activities. (3) Tangible personal property brought into the City by a nonresident for his own use, storage or consumption while temporarily within the City (4) Tangible personal property of a resident which was acquired pnor to his becoming a resident. (5) Any right to the continuous possession or use for three (3) 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. a. With regard to the right to the continuous possession or use for three (3) 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. b Where the lessor does not lease tangible personal property in the ordinary course of business and wishes to engage in a one-time CNB\53027\4092G6.05 50 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. (Ord No 1988-781, ~ 1(21-23), 12-12-88, Ord. No 1991-869, ~ 3, 9-1-91, Ord. No 1991- 885, SS 1,5, 12-23-91, Ord. No. 1992-893, S 8, 4-13-92) Sec. 22-68. Building materials and supplies. (a) Every person who builds, constructs, reconstructs, alters, expands, modifies or improves any building, dwelling, or other structure or improvement to real property in the City, including all exempt institutions or private construction job sites, and who purchases lumber, fixtures, or any other building materials and supplies used therefor, or any other article or articles of any tangible personal property used therein, and every owner or lessee of realty or improvements thereon situated 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, or any equipment used for construction thereon or improvements thereto, and which the contractor, owner or lessee has not paid the tax imposed by this chapter thereon shall pay a use tax in either of two (2) ways' (I) By determining an estimated value of the total cost of construction as established by the City building inspector and multiplying that value by the tax rate established by the Treasurer according to regulations promulgated hereunder 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 or subcontractor. 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) The Treasurer subsequently may conduct an audit to recompute the tax by comparing the estimated value of the building materials and supplies used therefor 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 22-45. (Ord. No 1988-781, ~ 1(21-24), 12-12-88; Ord No. 1991-869, ~ 3, 9-1-91; Ord. No 1991- 885, ~ 1, 12-23-91, Ord. No. 1996-1060, ~~ 12, 13, 12-16-96) Secs.22-69--22-72. Reserved. DIVISION 4 ENHANCED SALES TAX INCENTIVE PROGRAM CNB\53027\409266.05 51 Sec. 22-73. Program established. There is hereby established within the City an enhanced sales tax incentive program. (Ord. No 1988-758, S 1(24-1),5-23-88) Sec. 22-74. Purpose. The purpose of the enhanced sales tax incentive program created by this division is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the City, thereby stimulating the economy of and within the City, thereby providing employment for residents of the City and others, thereby further expanding the goods available for purchase and consumption by residents of the City, and further increasing the sales taxes collected by the City, which increased sales tax collections will enable the City to provide expanded and improved municipal services to and for the benefit of the residents of the City, while at the same time providing public or public-related improvements at no cost, or at deferred cost, to the City and its taxpayers and residents. (Ord. No 1988-758, S 1(24-2), 5-23-88) Sec. 22-75. Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meanlllg Enhanced sales tax shall mean the amount of sales tax collected by the City over and above a base amount negotiated by, and agreed upon by, the applicant and the City, and which amount is approved by the City council, which base amount shall never be lower than the amount of sales taxes collected by the City at the property in question in the previous twelve (12) months plus a reasonable and agreed upon percentage of anticipated increase in sales taxes, or, in the case of a newly established business, an amount which represents the good faith determination by the applicant and the City as to the amount of sales taxes which could be generated from the new business without the participation by applicant in the ESTIP created under this division. ESTI? means the enhanced sales tax incentive program created under this division. Owner or proprietor shall mean the record owner or operator of an individual business, or, in the case of a shopping center, the owner of the real property upon which more than one (1) business is operated, provided that the owner (whether an individual, corporation, partnership or other entity) is the owner or lessor of the individual businesses operated thereon. (Ord. No 1988-758, ~ 1(24-3),5-23-88) eNB \5302 7\409266.05 52 Sec. 22-76. Participation. Participation in ESTIP shall be based upon approval by the City council exercising its legislative discretion in good faith. Any owner or proprietor of a newly established or proposed retail sales tax generating business or location, or the owner or proprietor of an existing retail sales tax generating business or location which wishes to expand substantially, may apply to the City for inclusion within the ESTIP provided that the new or expanded business is reasonably likely to generate enhanced sales taxes of at least five thousand dollars ($5,000 00) in the first year of operation. (Ord. No 1988-758, ~ 1(24-4),5-23-88, Ord No. 1990-854, ~ 1, 11-26-90) Sec. 22-77. Approval of agreement; use of funds generally. Approval by the City council of an agreement implementing this ESTIP shall entitle the successful applicant to share in enhanced sales taxes derived from applicant's property or business in an amount which shall not in any event exceed the enhanced sales taxes; provided, however, that applicant may use such amounts only for public and/or public-related purposes such as those specified herein and which are expressly approved by the City council at the time of consideration of the application. The time period in which the enhanced sales taxes may be shared shall not commence until all public or public-related improvements are completed, and shall be limited by the City council, in its discretion, to a specified time, or until a specified amount is reached (Ord No. 1988-758, ~ 1(24-5),5-23-88; Ord No. 2002-1240, ~ 1,1-28-02) Sec. 22-78. Uses enumerated. The uses to which the shared enhanced sales taxes may be put by an applicant shall be strictly limited to those which are public or public-related in nature. For the purposes of this division, public or public-related purposes shall mean public improvements, including but not limited to streets, sidewalks, curbs, gutters, pedestrian malls, street lights, drainage facilities, landscaping, decorative structures, statuaries, fountains, identification signs, traffic safety devices, bicycle paths, off-street parking facilities, benches, restrooms, information booths, public meeting facilities, and all necessary, incidental, and appurtenant structures and improvements, together with the relocation and improvement of existing utility lines, and any other improvements of a similar nature which are specifically approved by the City council upon the City council's finding that said improvement are public or public-related improvements, and that such improvements shall enhance the competitive position of the applicant within the Denver Metropolitan area marketplace. (Ord. No 1988-758, ~ 1(24-6),5-23-88) CNB\53027\409266.05 53 Sec. 22-79. Increments, sharing of funds. The base figure for sales taxes shall be divided into twelve (12) monthly increments, which increments are subject to agreement between the parties, and approval by the City council, and which increments shall be reasonably related to the average monthly performance of the business or property in question, or similar businesses in the area (i.e adjust for seasonal variations). If in any month the agreed upon figure is not meet by applicant so as to create enhanced sales tax for that month, no funds shall be shared with applicant for that month, and no increment shall be shared until that deficit, and any other cumulative deficit, has been met, so that at the end of any twelve-month cycle, funds in excess of those enhanced sales taxes agreed to be shared shall not have been shared with any applicant. (Ord. No. 1988-758, ~ 1(24-7),5-23-88) Sec. 22-80. Revenues restricted. It is an overriding consideration and determination of the City council that existing sources of City sales tax revenues shall not be used, impaired, or otherwise affected by this enhanced sales tax incentive program. Therefore, it is hereby conclusively determined that only enhanced sales taxes generated by the properties described in an application shall be subject to division under this ESTIP It shall be the affirmative duty of the Treasurer to collect and hold all such enhanced sales taxes in a separate account apart from the sales taxes generated by and collected from the other sales tax generating uses and businesses within the City and to provide an accounting system which accomplishes the overriding purpose of this section. It is conclusively stated by the City council that this division would not be adopted or implemented but for the provisions of this section. (Ord No. 1988-758, ~ 1(24-8),5-23-88) Sec. 22-81. Capital improvement fund. The one percent (I %) of sales and use taxes earmarked for the capital improvement fund may be utilized in this ESTIP for public improvements so long as the same are within the meaning of the phrase capital improvements as defined in the voter approved sales tax referendum previously held within the City, and provided that the same are found and determined by the City council to be capital improvements which could be provided by the City from the capital improvement fund but for the provision of such improvements by the applicant, provided, however, that such use of capital improvement funds as part of this ESTIP shall be limited to the amount agreed pursuant to section 22-83 hereof; provided further, however, that nothing contained herein shall limit the City council in the determination to appropriate additional capital improvement funds for capital improvements affecting the property in question as a part of the City's regular appropriation and budget process (Ord. No 1988-758, ~ 1(24-9),5-23-88) eNB\53027\409266.05 54 Sec. 22-82. Criteria for approval of application. (a) Approval of an application for inclusion in this ESTIP shall be given by the City council, at a public hearing held as a portion of a regularly scheduled City council meeting, based upon the following criteria: (I) The amount of enhanced sales taxes which are reasonably to be anticipated to be derived by the City through the expanded or new retail sales tax generating business; (2) The public benefits which are provided by the applicant through public works, public improvements, additional employment for City residents, etc.; (3) The amount of expenditures which may be deferred by the City based upon public improvements to be completed by the applicant, (4) The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the City; (5) The agreement required by section 22-83 having been reached, which agreement shall contain and conform to all requirements of section 22-83. (6) Approval shall be by motion adopted by a majority of the entire City council. (Ord. No 1988-758, ~ 1(24-10),5-23-88) Sec. 22-83. Agreement required. Each application for approval submitted to the City council shall be subject to approval by the council solely on its own merits. Approval of an application shall require that an agreement be executed by the owner and the City, which agreement shall, at a minimum, contain. (1) A list of those public or public-related improvements which justify applicant's approval, and the amount which shall be spent on such improvements; (2) The maximum amount of enhanced sales taxes to be shared, and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired), (3) A statement that this is a personal agreement which IS not transferable and which does not run with the land; CNB\53027\409266.05 55 (4) That this agreement shall never constitute a debt or obligation of the City within any constitutional or statutory provision, (5) The base amount which is agreed upon by month, and the fact that if, in any month as specified, sales taxes received from the property do not at least equal such amount, that there shall be no sharing of funds for such month; (6) The base amount shall be agreed upon which shall consider the historic level of sales at the property in question, or a similar property within the area in the event of a new business, and a reasonable allowance for increased sales due to the improvements and upgrades completed as a result of inclusion within this program, (7) A provision that any enhanced sales taxes subject to sharing shall be escrowed in the event there is a legal challenge to this enhanced sales tax incentive program or the approval of any application therefor; (8) An affirmative statement that the obligations, benefits, and/or provisions of this agreement may not be assigned in whole or in any part without the expressed authorization of the City council, and further that no third party shall be entitled to rely upon or enforce any provision hereof; (9) Any other provisions agreed upon by the parties and approved by the City council (Ord. No 1988-758, ~ 1(24-11), 5-23-88) Sec. 22-84. Joint venture; liability. The City council has enacted this ESTIP as a joint benefit to the public at large and to private owners for the purposes of providing the City with increased sales tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the City, and allowing applicants an opportunity to improve properties which generate sales activities, which improvements make those properties more competitive in the marketplace and further provide to the applicant additional contingent sources of revenues for upgrading such properties. The City council specifically finds and determines that creation of this ESTIP is consistent with the City's powers as a home rule municipal corporation, and that exercise of such powers in the manner set forth herein is in furtherance of the public health, safety and welfare Notwithstanding any provision hereof, the City shall never be a joint venturer in any private entity or activity which participates in this ESTIP, and the City shall never be liable or responsible for any debt or obligation of any participant in ESTIP. (Ord No. 1988-758, S 1(24-12),5-23-88) DIVISION 5 BUSINESS DEVELOPMENT ZONE eNB\53027\409266.05 56 Sec. 22-85. Program established. There is hereby established within the City of Wheat Ridge the "Wheat Ridge Business Development Zone" program. (Ord. No. 888, ~ I, 1-13-92) Sec. 22-86. Legislative declarations. (a) The City council of the City of Wheat Ridge hereby finds and declares. (I) That the health, safety and welfare of the people of this City are in large part dependent upon the continued encouragement, development and expansion of opportunities for employment in the private sector in this City; (2) That there currently exists in this City businesses or vacant land which require new development or revitalization opportunities to overcome conditions of unemployment, underemployment, net out-migration of the population, diminution of tax revenues, chronic economic distress and blighting influences such as, but not limited to, deterioration of business districts, deterioration of public infrastructures, traffic and drainage problems or sudden severe economic dislocations, (3) That by creating new development, redevelopment or expansion opportunities for businesses within the City the City council will increase the likelihood that new and improved businesses will generate more municipal sales and use tax revenues for the City in the future. (b) It is therefore declared to be the policy of the City of Wheat Ridge, in order to provide incentives for private enterprises to expand or for new businesses to locate in the City, to develop a program which empowers the City council to designate portions of the City as a "business development zone" and to provide for the abatement of certain categories of fees, taxes and other business development-related charges for new development or redevelopment within such districts. (c) The City council has enacted this division 5 of article I of chapter 22 of the Code of Laws as a joint benefit to the public at large and to private owners for the purposes of reducing blight in our business districts and of providing the City with increased sales and use tax revenues generated upon and by properties improved as a result of this program and allowing owners and proprietors opportunities to improve properties which generate sales activities, which improvements make those properties more competitive in the marketplace and further provide to owners and proprietors additional contingent sources of revenues for ungrading such properties. CNB\53027\409266.05 57 (d) The City council specifically finds and determines that creation of this "business development zone" ordinance and the exercise of the powers enumerated herein are consistent with and promotes the public health, safety and general welfare of the citizens of Wheat Ridge. (Ord No 888, S I, 1-13-92; Ord. No 1993-947, S 1, 12-13-93) Sec. 22-87. Definitions. As used in this division, the following phrases shall have the following meanings unless the context clearly indicates another meaning. (I) The phrase eligible City fees, charges and taxes shall mean and shall be limited to use tax on furniture and fixtures associated with the initial development or redevelopment "project," use tax on building materials, building permit fees and zoning fees. (2) The phrase expected incremental future sales and use tax revenue shall mean the amount of the additional sales and use tax revenue, as projected by the City, expected to be generated during the council-designated time period from the time of completion of the "project" over and above the sales and use tax fees generated on the premises in the twelve (12) months preceding the application described in section 22-88. (3) The phrase owner or proprietor shall mean the record owner, tenant or operator of an individual business or, in the case of a shopping center, the owner of the real property upon which more than one business is operated. (4) Project shall mean the specific development or redevelopment expenditures which relate both to the abatement of "eligible City fees, charges, and taxes" and "expected incremental future sales and use tax revenues. " (Ord No. 888, ~ I, 1-13-92) Sec. 22-88. Participation. Participation in the business development zone program shall be based upon approval by the City council, exercising its legislative discretion in good faith. Any owner or proprietor of an established, proposed or newly purchased business, or the owner or proprietor of an eXisting business which wishes to expand, may apply to the City for inclusion within the program. Abatement or sharing of eligible City fees, charges, and taxes shall, upon approval of the application by the City council, be granted up to the amount of expected incremental future sales and use tax revenue to be generated by the project during the agreed to time period (Ord No 888, ~ I, 1-13-92) CNB\53027\409266.05 58 Sec. 22-89. Approval of agreement; use of funds generally. Approval by the City council of an agreement implementing the provisions of this division shall entitle the applicant to share in the eligible City fees, charges and taxes up to the amount agreed by the City council; proVided, however, that applicant may use such amounts only for the purpose of developing or redeveloping the business within the approved business development zone, which purposes shall be specifically enumerated in the agreement provided for in section 22-94 hereof. (Ord No 888, ~ 1, 1-13-92) Sec. 22-90. Uses enumerated. The uses to which the eligible City fees, charges and taxes may be put by an applicant shall be strictly limited to those which are approved by the City council and relate directly to the development or redevelopment of businesses within the City, which developed or redeveloped businesses will generate more municipal sales and use tax revenues for the City in the future Priority shall be given to all businesses which make application for inclusion within this program and who agree to utilize the eligible City fees, charges and taxes for the public or public-related purposes identified section 22-78 of this Code of Laws. (Ord No. 888, ~ I, 1-13-92) Sec. 22-91. Increments, sharing of funds. The base figure for eligible City fees, charges and taxes shall be divided into twelve (12) monthly increments, which increments are subject to agreement between the parties and approved by the City council, and which increments shall be reasonably related to the amount of sales and use taxes generated on the premises in the twelve (12) months preceding the application received by the City for participation in this program. The accounting and payment provisions of sections 22-79 and 22-80 hereof are hereby declared to be applicable to any application approved hereunder (Ord No 888, ~ 1, 1-13-92) Sec. 22-92. Capital improvement fund. The one percent of use taxes earmarked for the Capital Improvement Fund may be utilized in this business development zone program for public improvements so long as the same are within the meaning of the phrase capital improvements as defined in the voter- approved sales tax referendum previously held within the City, and provided the public improvements are found and determined by the City council to be capital improvements which could be provided by the City from the Capital Improvement Fund but for the provision of such improvements by the applicant. (Ord. No 888, ~ 1, 1-13-92) CNB\53027\409266.05 59 Sec. 22-93. Criteria for approval of application. (a) Approval of an application for inclusion in this business development zone program shall be given by the City council at a public hearing held as a portion of a regularly scheduled City council meeting based upon the following cnteria: (I) The amount of expected incremental future sales and use tax revenue which reasonably [can] be anticipated to be derived by the City through the expanded or new tax generating business, (2) The public benefits which are provided by the applicant through public works, public improvements, additional employment for City residents, etc.; (3) The amount, if any, of City expenditures which may be deferred based upon public improvements to be completed by the applicant; (4) The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the City, (5) The agreement required by section 22-94 hereof having been reached, which agreement shall contain and conform to all of the requirements of such section. (b) Approval of any application shall be made by motion adopted by a majority of the entire City council. (c) The City council may by three-fourths majority vote approve exceptions to the provisions of this division when such exceptions are found to be in the public's interest and such exceptions provide substantial benefit to the City. (Ord No 888, S 1, 1-13-92; Ord. No. 1993-947, S 2, 12-13-93) Sec. 22-94. Agreement required. Each application for approval to the City council shall be subject to approval by the council solely on its own merits. Approval of one application shall not require, or be deemed precedent for, approval of any other application. Approval of an application shall require that an agreement be executed by the owner and the City, which agreement shall, at a minimum contain. (1) A list of those public or public-related improvements which justify applicant's approval, and the amount which shall be spend on such improvements, (2) The maximum amount of expected incremental future sales and use tax revenue and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be eNB\53027\409266.05 60 shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired); (3) A statement that this is a personal agreement which IS not transferable and which does not run with the land; (4) That this agreement shall never constitute a debt or obligation of the City within any constitutional or statutory provision, (5) The base amount which is agreed upon by month, and the fact that if, in any month as specified, expected incremental future sales and use tax revenue received from the property does not at least equal such amount, that there shall be no sharing of funds for such month; (6) The base amount shall be agreed upon, which shall consider the use taxes generated by the property in question, or a similar property within the City in the event of a new business; (7) A provision that any expected incremental future sales and use tax revenue shall be escrowed in the event there is a legal challenge to this business development zone program, (8) An affirmative statement that the obligations, benefits and/or provisions of this agreement may not be assigned in whole or in any part without the expressed authorization of the City council, and further that no third party shall be entitled to rely upon or enforce any provision hereof; (9) Any other provisions agreed upon by the parties and approved by the City council. (Ord. No 888, ~ 1, 1-13-92) Sec. 22-95. Joint venture liability. The City council has enacted this business development zone as a joint benefit to the public at large and to private owners for the purposes of providing the City with increased tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the City, and allowing applicants an opportunity to improve properties which generate sales and other business activities The City council specifically finds and determines that creation of this business development zone is consistent with the City's powers as a home rule municipal corporation, and that exercise of such powers in the manner set forth herein is in furtherance of the public health, safety and welfare. Notwithstanding any provision hereof, the City shall never be a joint venturer in any private entity or activity which participates in this business development zone program, and the City shall never be liable or responsible for any debt or obligation of any participant in this business development zone eNB\53027\409266.05 61 (Ord. No. 888, ~ 1, 1-13-92) Sec. 22-96. ESTIP and TIF. If the applicant, owner or proprietor participates in the City's Enhanced Sales Tax Incentive Program ("ESTIP") or if the owner's or proprietor's business is located in an urban renewal area in which all or a portion of sales tax revenues have been pledged as part of a tax increment financing program, he or she shall be ineligible for participation in this business development zone program. (Ord. No 888, ~ 1, 1-13-92) Sees. 22-97--22-99. Reserved. ARTICLE II. LODGERS' AND ADMISSIONS TAX3* Sec. 22-100. Lodgers' tax. (a) Tax imposed; conditions. There is hereby imposed an excise tax on the price paid or charged for the lease, rental or on the transaction of furnishing rooms or accommodations to any person who for a consideration uses, possesses or has the right to use or possess any room or rooms or other accommodations in any hotel, apartInent hotel, guesthouse, guest ranch, mobile home, auto camp, trailer court or park, or any other place furnishing rooms or other accommodations under any concession, permit, right of access, license to use or other special agreement. Such tax on accommodations shall be subject to the following conditions (1) The tax hereby imposed shall be in lieu of City sales tax on such rental or furnishing of accommodations. The tax hereby created in this section shall not apply to the sale or sales of any goods, services or commodities other than the furnishing of rooms and accommodations (2) The tax hereby imposed shall be collected and paid at the rate of ten percent (10 %) of the purchase price paid or charged for such accommodations and shall exclude the sale of any goods, services and commodities other than the furnishing of rooms or other accommodations. (3) The person, partnership, corporation or other entity making such rooms or other accommodations available shall for all purposes of this chapter be deemed to be a "retailer" or "vendor," as defined in section 22-21 of this chapter. 3 Editor's note - Section 2 of Ord. No. 1988-781, adopted Dec. 12, 1988, repealed Ord. No 1985-642, adopted Jan. 1, 1986, from which ordinance was derived the provisions codified herein as SS 22-1 and 22-2. Section 1 of Ord. No 1988-781 enacled new provisions, relative to the same subject matter, which have been included herein as a new Art. I, SS 22-1 and 22-2, of Ch. 22. CNB\53027\409266.05 62 (4) The rental or furnishing of accommodations for a period of at least thirty (30) consecutive days shall be exempt from the tax hereby created. For purposes of establishing the thirty-day period, the accommodation may not be transferred or transferable by one consumer or person or entity to any other consumer, person or entity (b) Conditions for collection and enforcement The provisions for collection and enforcement of lodgers' tax shall be the same as collections and enforcement of sales and use tax. (Ord No 1988-781, ~ 1(21-27), 12-12-88; Ord. No. 1991-869, ~ 3, 9-1-91; Ord. No 1991- 885, ~ I, 12-23-91; Ord. No. 1996-1060, ~ I, 12-16-96, Ord. No 1998-1138, ~~ 1, 3, 11-23- 98) Sec. 22-101. Admissions tax. (a) Tax imposed; conditions. There is hereby imposed an excise tax of four percent (4 %) of each admission charge on every vendor who charges admission to an amusement or entertainment event, as defined in section 22-21 of this Code of Laws, within the City. Such tax is in lieu of all other taxes imposed by this chapter or other law. (b) Exempt transactions The following persons are exempt from the payment or collection of the tax imposed by this section: (1) The United States government and the State of Colorado, and the political subdivisions thereof, including the City, in the conduct of their governmental functions. (2) Religious and charitable organizations in the conduct of their religious and charitable functions; provided, that an exempt institution license from the City is possessed by such organization. (3) A school, other than a school held or conducted for private or corporate profit, in the conduct of its educational functions; provided, that a letter of exemption from the City is possessed by such school. (4) Any person who refunds an admission charge for any reason, either before or after an amusement or entertainment event has taken place, and refunds the tax along with the charge. (5) Any person who provides free passes, complimentary admission tickets or otherwise does not collect an admission charge, but if such person imposes a reduced charge, whether for a pass, complimentary admission or otherwise, the tax imposed in this section is applicable to the amount of such charge. r:NB\53027\409266.05 63 (6) Notwithstanding the foregoing, exempt from taxation under this section shall be nonprofit museums, whether operated by public or private entities, and art exhibits or shows or other events sponsored by the City and held at City-owned facilities (c) Conditions for collection and enforcement The provisions for collection and enforcement of the admissions tax shall be the same as collections and enforcement of sales and use tax. (Ord No. 1988-781, ~ 1(21-28), 12-12-88; Ord. No 1991-867, S 3, 9-1-91, Ord. No. 1991- 123, S 1, 12-23-91, Ord. No. 1996-1060, ~ 2, 12-16-96) --22-20. Reserved sales and use tax* Secs.22-102--22-119. Reserved. ARTICLE III. BASIC LOCAL TELECOMMUNICATIONS SERVICE4* Sec. 22-120. Levy of tax. There is hereby levied a tax on and against each person, corporation or entity engaged in the business or occupation of providing basic local telecommunications service within the City of Wheat Ridge (Ord. No 1997-1072, ~ 1,3-24-97) Sec. 22-121. Definitions. For the purposes of this article, the following terms shall be construed as defined herein. Basic local telecommunications service means the electronic or optical transmission of information between separate points by prearranged means, which may include the provision of a tone, or its functional equivalent, a local line or other transmission path and such local usage as is necessary to place or receive a call. Basic local telecommunications service does not include long distance service, cellular service or mobile radio telephone service. However, the provision of cellular or mobile radio service to any resident, business or other entity as its primary local telecommunicati.ons service shall be deemed basic telecommunication service for the purpose of determining the applicability of this business and occupation tax. '*Editor's note: Ord. No 1997-1072,!i 1, adopted March 24, 1997, repealed and re-enacled the provisions of Ch. 22, Art. III to read as herein set out. Prior to this revision, Art. III contained provisions relative to telephone e . f C d 2 2 . ordinances: xchanges and was denved rom o e 1977, !is 1- 1--22-27 and from the followmg Ord. No. Date Ord. No. Date Ord. No. Date 1987-738 11-23-87 1990-856 12-10-90 1192-980 12-14-92 1988-778 11-28-88 1991-887 12-23-91 1994-956 2-28-94 1989-817 2-12-90 1991-888 1-13-92 1995-991 2-13-95 eNB\53027\409266.05 64 Incumbent basic local telecommunications service provider or incumbent provider shall be the company or entity providing basic local telecommunications service within the City as of July 1, 1996. Line shall mean a separate telephone number, except that, to the extent basic local telecommunications service is provided through trunks, a line shall mean network access register or its functional equivalent. New basic local telecommunications service provider or new provider shall be any company or entity other than the incumbent provider who enters into the business of providing basic local telecommunications service in the City (Ord No 1997-1072, ~ 1, 3-24-97) Sec. 22-122. Local purpose. The tax provided in this article is upon the affected occupations and businesses in the performance of local functions and is not a tax upon those functions relating to interstate commerce (Ord. No 1997-1072, ~ 1, 3-24-97) Sec. 22-123. Amount and payment of tax. The amount of the tax levied and payment of the tax shall be as follows. (1) The Incumbent Basic Local Telecommunications Service Provider shall pay one hundred ninety thousand five hundred and seventy-five dollars ($190,575 00) as follows' One hundred ninety thousand five hundred and seventy-five dollars ($190,575.00) shall be paid in twelve (12) equal monthly installments of fifteen thousand eight hundred and eighty-one dollars and twenty-five cents ($15,881.25), each installment to be paid on the last business day of each calendar month. (2) Each New Basic Local Telecommunications Service Provider shall pay a tax based on a calculated fraction of the tax paid by the Incumbent Basic Local Telecommunications Service Provider. The amount shall be determined as follows. a. The incumbent provider per line charge will be determined by dividing the Incumbent Basic Local Telecommunications Service Provider tax by the number of customer lines provided by the Incumbent Basic Local Telecommunications Service Provider within Wheat Ridge. Expressed as a formula, the ratio shall be as follows Incumbent Provider Tax ($190.575.00) = New Provider Tax eNB\53027\409266.05 65 No of Incumbent Provider Lines Number of New Provider Lines b. The tax paid by each new Basic Local Telecommunications Service Provider shall be the Per Line Charge as defined through the above formula multiplied by the number of lines provided in Wheat Ridge by the New Basic Local Telecommunications Provider. (3) Calculation of the tax paid by a cellular or mobile radio telephone service provider shall be based only on the number of lines or the functional equivalent actually used to provide Basic Local Telecommunications Service as described in section 22-121 above. (4) The amount of the tax levied against new Basic Local Telecommunication Service Provider shall be calculated each August and shall be effective on the following January 1 and shall be payable in twelve (12) equal monthly installments, each installment to be paid on the last business day of each calendar month. (Ord. No 1997-1072, S 1, 3-24-97) Sec. 22-124. Failure to pay. If any Basic Local Telecommunications Service Provider subject to this article fails to pay the taxes as herein provided, the full amount thereof shall be due and collected from such provider, and the same, together with an addition of ten percent (10%) of the amount of taxes due shall be and is declared to be a debt due and owing from such provider to the City. (Ord. No 1997-1072, S 1, 3-24-97) Sec. 22-125. Inspection of records. The City, its officers, agents or representatives, shall have the right at any reasonable time to examine the books and records of the Basic Local Telecommunications Service Providers which are subject to the provisions of tax imposed in this article and to make copies of the entries or contents thereof. (Ord. No. 1997-1072, ~ 1,3-24-97) Sec. 22-126. Tax in lieu of other occupation taxes. The tax provided in this article shall be in lieu of all other occupation taxes or taxes on the privilege of doing business within the City on any provider of Basic Local Telecommunications Service subject to the provisions of this article (Ord. No 1997-1072, ~ 1, 3-24-97) eNB\53027\409266.05 66 Section 2. The following definitions found in former Section 22-21 are moved to a new Section 11-205, entitled "Definitions," and placed under a new Article IX, entitled "Peddlers, Solicitors and Nonresident Vendors," under Chapter 11 of the Code of Laws: "Nonresident vendor," "Pedd/er," and" Solicitor. " Section 3. Former section 22-37 of the Code of Laws is renumbered as Section 11-206 and placed under the new Article IX of Chapter 11 of the Code established under Section 2 of this Ordinance. Subsections (c) and (v) of the new Section 11-206 concerning canvassers are deleted and the word "canvassing" is deleted from subsection (s) thereof. Section 4. 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 5. Severabilitv; ConflictinQ Ordinances ReDealed. If any section, subsection or clause of this ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 6. Effective Date. This Ordinance shall take effect fifteen days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to o on this 18thday of November , 2002, 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 December 9 , 2002, at 7:00 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 0 ,this 9th day of December , 2002. SIGNED by the Mayor on this 18thday of retchen Cerveny, Mayor ------~~-- CNB\53027\409266.05 67 ATTEST: First Publication: NovemhPT Second Publication: December Wheat Ridge Transcript: Effective Date: December 11. 1001 12, 2002 CNB\53027\409266.05 27. 2002 68