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HomeMy WebLinkAboutordinance.council.18-24SERIES OF 2024 AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 239 OF THE CITY OF ASPEN MUNICIPAL CODE TO PROVIDE FOR THE COLORADO DEPARTMENT OF REVENUE TO COLLECT CITY SALES TAX; REMOVE VENDOR'S FEES; AND TO UPDATE THE MUNICIPAL CODE CONCERNING TAXES THAT WILL CONTINUE TO BE COLLECTED, ADMINISTERED, AND ENFORCED BY THE CITY. WHEREAS, The City of Aspen, as a home rule municipality, collects its own sales and use taxes pursuant to Chapter 23 of the City of Aspen Municipal Code, and in particular, Chapter 23.32 of the Municipal Code; and WHEREAS, C.R.S. § 29-2-106(4)(a)(I) requires the Colorado Department of Revenue to collect the sales tax of any home rule municipality upon request of the governing body, pursuant to certain conditions, including that the City's tax or conform to state requirements; and WHEREAS, pursuant to the above referenced statute, the City can provide that its sales tax be collected by the Colorado Department of Revenue on standard forms at the same time the Department of Revenue collects state sales tax on sales made in Aspens and WHEREAS, Aspen may continue to decide its own tax base, provided it cannot exempt from sales tax any items that the State of Colorado has not exempted, but may exempt fewer items than the State of Colorado exempts, pursuant to C.R.S. §29-2- 106(4)(a)(1) and §29-2405(1)(d)(I)); and WHEREAS, pursuant to the above noted statutes, to enable state collection of City of Aspen sales tax, the City must make certain changes to its Municipal Code to conform to the requirements set out in C.R.S. §29-2-105, which changes are reflected in this ordinance; and WHEREAS, the dual system of separate collection of state and local sales taxes is generally regarded by local and multi jurisdictional businesses as complex and burdensome, and may be simplified by collection of both state and local sales taxes by the Colorado Department of Revenue on one return; and WHEREAS, the City otherwise desires to streamline the sales tax collection process through unifying the City's sales tax return with the state sales tax return, thereby simplifying the process for vendors and reducing collection costs for the City; and WHEREAS, the adoption of this ordinance will not create any new tax or tax policy change directly causing a net tax revenue gain to the City, and therefore no election is required pursuant to Art. X, Sec. 20 (4)(a) of the Colorado Constitution, see TABOR Foundation v. Regional T�^ansportation District, 416 P.3d 101 (Colo. 2018); and WHEREAS, the City also desires to update Chapter 23 of the Municipal Code to reflect local cigarette tax collection and add Chapter 23.56 in accordance with previous voter approval obtained through the November 2017 ballot issue 2B and by approval of Resolution No. 122, Series of 2017, NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that: Section 1: Chapter 23.32 —Sales Tax of the Municipal Code is hereby repealed and replaced, to read in its entirety as set forth on the attached Exhibit A, which is incorporated by reference as though fully set forth herein. Section 2: Chapter 23.56 —Tobacco and Nicotine Product Tax of the Municipal Code is hereby added to the Municipal Code to read in its entirety as set forth on the attached Exhibit B, which is incorporated by reference as though fully set forth herein. Section 3: Chapter 23.58 — Food Tax Refunds of the Municipal Code is hereby added to the Municipal Code to read in its entirety as set forth on the attached Exhibit C, which is incorporated by reference as though fully set forth herein. Section 4: Section 23.04.010 —General Provisions, Words and Phrases Defined of the Municipal Code is hereby repealed and replaced, to read in its entirety as set forth on the attached Exhibit D, which is incorporated by reference as though fully set forth herein. Section 5: The following additions shall be incorporated into the Municipal Code: • Section 23.04.050. This chapter shall not apply to Section 23.32 — Sales Tax. • Section 23.08.060. This chapter shall not apply to Section 23.32 —Sales Tax. • Section 23.12.050. This chapter shall not apply to Section 23.32 —Sales Tax. • Section 23.16.050. This chapter shall not apply to Section 23.32 —Sales Tax. • Section 23.20.080. This chapter shall not apply to Section 23.32 —Sales Tax. • Section 23.24.040. This chapter shall not apply to Section 23.32 —Sales Tax. • Section 23.28.100. This chapter shall not apply to Section 23.32 —Sales Tax. Section 6: The following section for the Municipal Code shall be amended as follows: Section 23.04.030(b)(1) shall be repealed in its current state and Section 23.04.030(b)(2) shall be renumbered as 23.04.030(b)(1). Section 7: After adoption by the City Council, the City Clerk shall provide a copy of this Ordinance to the executive director of the Colorado Department of Revenue at least 45 days prior to the commencement of state collection of City sales taxes. If any portion of this ordinance is declared to be void or ineffective by a court of competent jurisdiction, it shall be deemed servered from this ordinance, and the remaining portions shall remain valid and in full force and effect. The City's officials are authorized and directed to take all action necessary and appropriate to effectuate the provisions of this ordinance. All references to Colorado law are to the versions of those laws in effect at the time of this ordinance was adopted as well as any subsequent amendments thereto. Section 8: The Municipal Code amendments set forth in this Ordinance shall apply to all sales transactions occurring on or after January 1, 20250 INTRODUCED AND READ, as provided by law, by the City Council of the City of Aspen on the 8th day of October 2024, ATTEST: Nicole Henning, City Clerk Torre, Mayor FINALLY, adopted, passed and approved thi3 any of ATTEST: vVl` Nicole Henning, City Clerk APPROVED AS TO FORM: ames R. True, City Attorney Torre, Mayor EXHIBIT A Sec 23.32 - Sales Tax Sec. 23.32.010. Purpose. The purpose of this Article is to impose a tax on: (1) The sale of tangible personal property at retail in the City; and (2) The furnishing of services in the City. Sec. 23.32.020. Definitions. All terms used in Chapter 23 shall have the same meaning as provided for in Section 39- 26-102, C.R.S. Sec. 23.32.030. Marketplace sales. Application of State Sales Tax. Unless otherwise provided in this sales tax code, any amendments thereto, or in Article 2, Title 29, C.R.S., the provisions of Article 26, Title 39, C.R.S., shall govern the collection, administration, and enforcement of this sales tax. Sec. 23.32.040. Rate; imposition and collection; distribution. (a) Imposition of Sales Tax. Sales tax shall continue to be imposed and collected on all sales of tangible personal property and services described in Section 23.32.040(b) and occurring within the City of Aspen. The tax is imposed as provided for in Section 29- 2-105(1)(d), C.R.S. The sales tax is set at a rate of two and four tenths of a percent (2.4%) of the amount of each sale. The taxable amount of a sale shall not include the amount of any sales or use tax imposed by Article 26, Title 39, C.R.S. All revenue derived through the general sales tax shall continue to be distributed in accordance with the following: (1) Sales tax receipts derived on or after July 1, 1990, from the one percent (1.0%) tax levied pursuant to Ordinance No. 16, Series of 1970, shall be set aside in a separate fund entitled "Parks and Open Space Fund," and expended by the City Council solely for the acquisition of parks, trails and open space real property, for the construction of improvements on any real property, owned or purchased by the City for parks, trails and open space purposes, for maintenance of real property owned by the City and used for parks, trails and open space and for EXHIBIT A payment of indebtedness incurred for acquisition or improvement of parks, trails and open space real property, food tax refunds payable by the City and for such expenditures as may be necessary to protect real property or the improvements thereon owned by the City for parks, trails and open space purposes, and for the payment of sales tax revenue bonds issued by the City; and (2) Sales tax receipts derived from the fifteen-one hundredths of one percent (0.15%) additional sales tax levied pursuant to the ballot question approved by City Council in Ordinance 55, Series 2007, shall be set aside in a separate fund designated as the "City Transportation Fund," and shall be expended by the City Council solely for the payment of services, facilities and programs with regard to the City transportation system. (3) Sales tax receipts derived from the forty-five one hundredths of one percent (0.45%) additional sales tax levied pursuant to Ordinance No. 81, Series of 1989, shall be set aside in a separate fund designated as the "Affordable Housing Fund and the Day Care Fund". The City Council will allocate the forty-five one hundredths of one percent (0.45%) sales tax between the funds as it shall from time to time designate. The sales tax from the forty-five one hundredths of one percent (0.45%) sales tax shall be expended by the City Council for the purpose of creating public or private affordable housing and day care opportunities within the city and county, including but not by way of limitation, capital improvements and capital expenditures therefor, land acquisition, payment of indebtedness incurred in connection with any affordable housing or day care expenditures, reserves and for expenditures necessary to protect any such property acquired or capital improvements constructed or purchased from any and all threatened or actual damages, loss, destruction or impairment from any such cause or occurrences. (4) All sales taxes collected by and paid by the County to the City in accordance with Ordinance No. 25, Series of 1985, shall be spent solely for those purposes set forth at Section 1 of said Ordinance. (5) Sales tax receipts derived from the one-half percent (0.5%) sales tax levied pursuant to Ordinance No. 7, Series of 2001, shall be set aside in the separate EXHIBIT A fund referenced in Paragraph 23.32.040(a)(1) and expended by the City Council solely for the purpose of buying, improving and maintaining trail, recreation and open space properties and ancillary facilities. (6) Sales tax receipts derived from the thirty hundredths of one percent (0.30%) additional sales tax levied pursuant to the ballot question approved by City Council in Resolution 84, Series 2012 and approved by the City of Aspen qualified electors on November 6th , 2012, shall be set aside in a separate fund designated and the "Education Fund" and shall be expended by the City Council solely for educational purposes providing support to the Aspen School District No. 1 (RE). (7) The taxes imposed in this Title shall be in addition to all other taxes imposed by law. (b) Property and Services Taxed. The sales of tangible personal property and services taxable under this sales tax shall be the same as the sales of tangible personal property and services taxable pursuant to Section 39-26-104, C.R.S., subject to the exemptions set forth below in Section 23.32.050 of this Code. (c) Place of Sale. For the purpose of this sales tax, all retail sales are sourced as specified in Section 39-26-104(3), C.R.S. (d) Mobile Telecommunications Services. Without limiting the broad application of Section 23.32.040(b) and recognizing that mobile telecommunications services are subject to particular legal requirements, this sales tax shall apply to mobile telecommunications services to the greatest extent permitted under Section 29-2- 105(1.5), C.R.S. Sec. 23.32.050. Exemptions from sales tax. (a) General Sales Tax Exemptions. Except as otherwise provided herein or in Section 29-2- 105(1)(d), C.R.S., the sales of tangible personal property and services taxable under this ordinance shall be subject to the same exemptions as those specified in Part 7, Article 26, Title 39, C.R.S. (b) Specific Exemptions Required by Section 29-2-105(1)(d), C.R.S. Pursuant to Section 29-2-105(1)(d)(I)(A)-(R), C.R.S., which requires the City of Aspen to expressly exempt EXHIBIT A certain sales from the City’s sales tax, the City of Aspen does not currently elect to adopt any additional exemptions. (c) Food. Notwithstanding any other provision of this sales tax regarding the taxation of food, this sales tax shall not apply to the following: (1) Sales of food purchased with food stamps. For the purposes of this subsection (a), “food” has the same meaning as provided in 7 U.S.C. § 2012, as currently in effect and subsequently amended; and (2) Sales of food purchased with funds provided by the special supplemental food program for women, infants, and children, 42 U.S.C. § 1786. For the purposes of this subsection (b), “food” has the same meaning as provided in 42 U.S.C. § 1786, as currently in effect and subsequently amended. (d) Certain Construction and Building Materials. This sales tax shall not apply to the sale of “construction and building materials,” as the term is used in Section 29-2-109, C.R.S., if the purchaser of such materials presents to the retailer a building permit or other documentation acceptable to the City of Aspen evidencing that a local use tax has been paid or is required to be paid on the materials. (e) Cigarettes. This sales tax shall not apply to sales of cigarettes. (f) Sales Subject to Prior Ownership Tax. Sales of personal property on which a specific ownership tax has been paid or is payable are exempt from this sales tax when the sale meets both of the following conditions: (i) the purchaser is a nonresident of the City of Aspen or has his principal place of business outside the City of Aspen and (ii) the personal property sold is registered or required to be registered outside the City of Aspen’s limits under the law of the State of Colorado. (g) Sales Subject to Prior Payment of Sales or Use Tax. This sales tax shall not apply to the sale of tangible personal property or services if the transaction was previously subjected to a sales or use tax lawfully imposed on the purchaser or user by another statutory or home rule city and county, city, or City equal to or in excess of that sought to be imposed by this sales tax. A credit shall be granted against this sales tax with respect to such transaction equal in amount to the lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule city and county, city, or City. The amount of the credit shall not exceed the sales tax imposed herein. EXHIBIT A Sec. 23.32.060. Collection, Administration, and Enforcement. Colorado Department of Revenue to Enforce. The collection, administration, and enforcement of this sales tax shall be performed by the executive director of the Colorado Department of Revenue in the same manner as the collection, administration, and enforcement of the Colorado state sales tax, as supplemented by Article 2, Title 29, C.R.S. EXHIBIT B – Chapter 23.56 Page 1 of 3 Sec 23.56 – TOBACCO AND NICOTINE PRODUCT TAX Sec. 23.56.010. - Legislative intent. The City Council hereby finds that tobacco and nicotine addiction is a leading cause of preventable death, that people should be deterred from starting the use of tobacco and nicotine products and encouraged to quit the use of tobacco and nicotine products, and that taxes on the sale of tobacco and nicotine products are effective at preventing and reducing tobacco and nicotine use. Sec. 23.56.020. - Definitions. Unless the context clearly indicates otherwise, the following words and phrases as used in this Chapter shall have the following meaning: Cigarette means any product that contains tobacco or nicotine, that is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (a) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; (b) Tobacco in any form that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling, is likely to be offered to, or purchased by consumers as a cigarette; or (c) Any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in [the definition] above. (d) The term includes all "roll-your-own," i.e., any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to or purchased by consumers as tobacco for making cigarettes. Tobacco Paraphernalia means any item designed for the consumption, use or preparation of Tobacco Products. Tobacco Product means 1) any product which contains, is made or derived from tobacco or used to deliver nicotine or other substances intended for human consumption, whether heated, EXHIBIT B – Chapter 23.56 Page 2 of 3 chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to Cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, bidis, snus, mints, hand gels; and 2) electronic smoking device; 3) notwithstanding any provision of Subsections 1) and 2) to the contrary, "tobacco product" includes any component, part, accessory or associated tobacco paraphernalia of a tobacco product whether or not sold separately. 4) The term "Tobacco Product" does not include: (i) any product that contains marijuana; and (ii) any product made from or derived from tobacco and approved by the Food and Drug Administration (FDA) for use in connection with cessation of smoking. Tobacco Product Retail Location or Retail Location means any premises where Tobacco Products are sold or distributed to a consumer including, but not limited to, hookah bar, lounge or café, any grounds occupied by a retailer, any store, stand, outlet, vehicle, cart, location, vending machine or structure where Tobacco Products are sold. Tobacco Product Retailer means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, Tobacco or Nicotine Products, or Tobacco Paraphernalia. "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of Tobacco Products or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange. Tobacco Product Retailing means the selling, offering for sale, or exchanging for any form of consideration a Tobacco Product. Sec. 23.56.030. - Imposition and collection; distribution; effective date. (a) There shall be a tax of fifteen cents ($0.15) per cigarette or three dollars ($3.00) per pack of twenty (20) cigarettes sold provided that such tax shall increase by an equal amount annually thereafter for ten years until the tax is twenty cents ($0.20) per cigarette or four dollars ($4.00) per pack of twenty (20) cigarettes (b) There shall be a sales tax of forty percent (40%) on the sales price of all other tobacco products EXHIBIT B – Chapter 23.56 Page 3 of 3 (c) Imposition and Collection. The tax specified in this Section is imposed upon any Tobacco Product or Cigarette Sale. Revenues collected through this tax would be placed in the General Fund with the specific purpose of financing health and human services, tobacco related health issues, and addiction and substance abuse education and mitigation. (d) Effective Date. The provisions of this Chapter shall be effective upon the first 1st day of January 2018 and shall continue to be levied and collected until amended or repealed by ordinance. (e) The tax imposed in this Chapter shall be in addition to all other taxes imposed by law. Sec. 23.54.040. - Administration. The administration of this Chapter is hereby vested in the Finance Department. The Finance Director shall prescribe forms and administrative procedures for the ascertainment, assessment, and collection of the tax not inconsistent with this Chapter, and for the enforcement of this Chapter. Sec. 23.54.050. - Violations and penalty. Failure to comply with the terms of this Chapter by payment of taxes, filing of a return and otherwise complying with the terms of this Chapter shall constitute an offense in violation thereat: punishable, upon conviction, by a fine, imprisonment or both a fine and imprisonment, as set forth in Section 1.04.080 of this Code. Sec. 23.54.060. - Civil action for recovery of tax due. The City shall have the right to recover all sums due under the terms of this Chapter by judgment and execution thereon in a civil action in any court of competent jurisdiction. Such remedies shall be cumulative with all other remedies provided herein for the enforcement of this Chapter. EXHIBIT C – Chapter 23.58 Page 1 of 1 Sec. 23.58. FOOD TAX REFUNDS Sec. 23.58.010. Food sales tax returns. (a) For purposes of this Chapter, and the refund of food sales tax collected, the term resident of the City shall mean any person who is over the age of sixteen (16) years and who has resided in the City for the entire calendar year for which a food sales tax refund is sought. (b) Any resident of the City, as herein defined, may, not later than April 15th of every year and so long as this Code shall be in force, apply, on such forms as provided by the Director of Finance, for an annual food sales tax refund from the City in the amount of one hundred thirty-two dollars ($132.00) for their self and, in addition, for every person who is a member of their household and for whom he or she is entitled to claim a personal exemption under and pursuant to the federal income tax laws. (c) No person who may be claimed as a personal exemption on another resident's application for refund shall be entitled to a food tax refund. If a food tax refund is claimed on more than one (1) application for the same person, the Director of Finance is authorized to determine the person entitled to claim the refund provided for in this Section. (d) The application for refund shall be reviewed or examined by the Director of Finance. All applicants may prove their resident status by evidence that they were registered voters of the City for the full calendar year for which the refund applies. Any resident who is barred from registering to vote due to non-citizenship or due to a felony conviction shall provide alternative proof of residency, as may be required by the Finance Director for the full calendar year. If the Finance Director is satisfied that the information provided on the refund application entitles the applicant to a food tax refund, either in the amount claimed or in any amount determined by the Director of Finance, the refund shall be paid. Otherwise, the application for refund shall be denied and a notice of denial sent to the applicant at the address furnished by the applicant. EXHIBIT D – Section 23.04.010 Chapter 23.04. GENERAL PROVISIONS Sec. 23.04.010. Words and phrases defined. When not clearly indicated otherwise by the context, the following words and phrases as used in this Title, shall have the following meanings: Business means all activities engaged in or caused to be engaged in with the object of gain, benefit or advantage, direct or indirect. It shall include any business, trade, occupation, profession or calling of any kind and all other kinds of activities and matters, together with all devices, machines, vehicles and appurtenances used therein, any of which are conducted for private profit or benefit, either directly or indirectly, within the City. Business License means an Aspen City business license required pursuant to Section 14.08 and shall also be considered a combined sales tax license for businesses remitting Visitor Benefit and Short-Term Rental tax. Carrier Access services means the services furnished by a local exchange company to its customers who provide telecommunications services, which allow them to provide such telecommunications services. Charitable organization means any entity which: (a) Has obtained tax exempt status as a charitable not-for-profit organization pursuant to Section 501(c)(3) of the Internal Revenue Code; and (b) Is a religious organization or an organization which exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons, freely and voluntarily ministers to the physical, mental or spiritual needs of persons and which thereby lessens the burdens of government. City means the municipality of Aspen. Code means the Aspen Municipal Code. EXHIBIT D – Section 23.04.010 Community Organization means a nonprofit entity organized and operated exclusively for the promotion of social welfare, primarily engaged in promoting the common good and general welfare of the community, so long as: (a) No part of the net earnings of which inures to the benefit of any private shareholder or individual; (b) No substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; and (c) 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. Construction equipment means any equipment including mobile machinery and mobile equipment, which is used to erect, install, alter, demolish, repair, remodel, or otherwise make improvements to any real property, building, structure or infrastructure. Construction materials means 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. This term includes, but is not limited to such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, 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 for forms, or other items which do not remain as an integral or inseparable part of a completed structure or project, are not construction materials. Contractor means any person who shall build, construct, reconstruct, alter, expand, modify, or improve any building, dwelling, structure, infrastructure, or other improvement to real property for another party pursuant to an agreement. For purposes of this definition, Contractor also includes subcontractor. EXHIBIT D – Section 23.04.010 Dwelling Unit means 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. Engaged in business in the City means performing or providing services or selling, leasing, renting, delivering or installing tangible personal property, products, or services for storage, use or consumption, within the City. This term includes, but is not limited to, any one of the following activities by a person: (a) Directly, indirectly, or by a subsidiary maintains a building, store, office, salesroom, warehouse, or other place of business within the taxing jurisdiction; (b) Sends one (1) 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 or other reasons; (c) Maintains one (1) or more employees, agents or commissioned sales persons on duty at a location within the taxing jurisdiction; (d) Owns, leases, rents or otherwise exercises control over real or personal property within the taxing jurisdiction; (e) is a retailer or vendor in the state of Colorado that makes more than one (1) delivery into the taxing jurisdiction within a twelve (12) month period; or (f) makes retail sales sufficient to meet the definitional requirements of economic nexus as set forth in 23.04.010. Finance Director means the Finance Director of the City or such other person designated by the City. The term shall also include such person's designee. Gross Sales means 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. Lodging Services means the furnishing of rooms or accommodations by any person, partnership, association, corporation, estate 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, lodging house, motor hotel, guest house, guest ranch, trailer coach, mobile home, auto camp, trailer court and park or similar EXHIBIT D – Section 23.04.010 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. Manufacturing means the operation or performance of an integrated series of operations which places a product, article, substance, commodity, or other tangible personal property in a form, composition or character different from that in which it was acquired whether for sale or for use by a manufacturer. The change in form, composition or character must result in a different product having a distinctive name, character or use from the raw or prepared materials. Marketplace means a physical or electronic forum, including, but not limited to, a store, a booth, an internet website, a catalog, or a dedicated sales software application, where tangible personal property, taxable products, or taxable services are offered for sale. Marketplace Facilitator means a person who: (a) (1) Contracts with a marketplace seller or multichannel seller to facilitate for consideration, regardless of whether or not the consideration is deducted as fees from the transaction, the sale of the marketplace seller's tangible personal property, products, or services through the person's marketplace; (2) Engages directly or indirectly, through one or more affiliated persons, in transmitting or otherwise communicating the offer or acceptance between a purchaser and the marketplace seller or multichannel seller; and (3) Either directly or indirectly, through agreements or arrangements with third parties, collects payment from the purchaser on behalf of the seller. (b) "Marketplace Facilitator" does not include: (1) A marketplace facilitator, marketplace seller or multichannel seller that offers or facilitates the advertising, booking, or collection of sales and fees for short-term rentals subject to the permit requirements of Chapter 26.530 of the City of Aspen Municipal Code; (2) A person that exclusively provides internet advertising services or lists products for sale, and that does not otherwise meet this definition. EXHIBIT D – Section 23.04.010 Marketplace Seller means a person, regardless of whether or not the person is engaged in business in the city, which has an agreement with a marketplace facilitator and offers for sale tangible personal property, products, or services through a marketplace owned, operated, or controlled by a marketplace facilitator. Multichannel seller means a retailer that offers for sale tangible personal property, commodities, or services through a marketplace owned, operated, or controlled by a marketplace facilitator, and through other means. Municipality. Any municipal corporation or similar form of local government including any city, town or city and county, whether organized pursuant to charter, constitution or statute, in Colorado or another state, except counties, school districts or special districts and the city. Person. Any individual, firm, partnership, joint venture, corporation, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit. Price or purchase price. (a) The price to the consumer, exclusive of any direct tax imposed by the federal government or by this Chapter and, in the case of all retail sales involving the exchange of property, also exclusive of the fair market value of the property exchanged at the same time and place of the exchange, if: (1) Such exchanged property is to be sold thereafter in 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. (b) The terms price or purchase price include: (1) The amount of money received or due in cash and credits. EXHIBIT D – Section 23.04.010 (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 purchase price of articles sold after manufacturing or after having been made to order, including the gross value of all materials used, labor and service performed and the profit thereon. (c) The terms price or purchase price do not include: (1) Any sales or use tax imposed by the State 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-ins 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 are actually passed on to the purchaser. An anticipated discount to EXHIBIT D – Section 23.04.010 be allowed for payment on or before a given date is not an allowable adjustment to the price in reporting gross sales. Public. Any individual, firm, co-partnership, joint venture, corporation, society, club, league, association, joint stock company, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit and the plural as well as the singular number. Purchase or sale. (a) 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 bonafide gift of property or services. These terms include 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 agreements; to use tangible personal property or taxable services. The use of coin- operated devices, except coin-operated telephones, which do not vend articles of tangible personal property, shall be considered short term rentals of tangible personal property. (3) Performance of taxable services; or (4) Barter or exchange for other property or services including coupons. (b) 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 of the corporation's outstanding stock, except qualifying shares, in proportion to the assets contributed; (3) The transfer of assets of shareholders in the formation or dissolution of professional corporations; EXHIBIT D – Section 23.04.010 (4) The dissolution and the pro rata distribution of a corporation's assets to its stockholders; (5) A transfer of a partnership interest; (6) The transfer in a reorganization qualifying under Section 368(a)(1) 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; or (11) The transfer of assets between parent and closely held subsidiary corporations, 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 Title 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 transfer or corporation. To such an extent any transfer referred to in this Subsection (11) shall constitute a sale. For the purpose of this Subsection (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 EXHIBIT D – Section 23.04.010 owns at least eighty percent (80%) of the total number of shares of all other classes of stock. Retail sales. All sales made within the City except wholesale sales. Retailer or vendor means any person selling, leasing, renting, or granting a license to use tangible personal property or services at retail. The terms "retailer" shall include, but is not limited to, any: (a) Auctioneer; (b) 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; (c) 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; (d) Retailer-contractor, when acting in the capacity of a seller of building supplies, construction materials, and other tangible personal property; (e) Marketplace facilitator, marketplace seller, or multichannel seller. Retailer-Contractor means a contractor who is also a retailer of building supplies, construction materials, or other tangible personal property, and purchases, manufactures, or fabricates such property for sale (which may include installation), repair work, time and materials jobs, and/or lump sum contracts. Return. The sales tax reporting form used to report sales tax. Sale that Benefits a Colorado School means a sale of a commodity or service from which all proceeds of the sale, less only the actual cost of the commodity or service to a person or entity as described in this Code, are donated to a school or a school-approved student organization. EXHIBIT D – Section 23.04.010 Sales tax. The tax to be collected and remitted by a retailer on sales taxes under this Title. School means a public or nonpublic school for students in kindergarten through twelfth (12th) grade or any portion thereof. State. The State of Colorado. Tangible Personal Property means personal property that can be one (1) or more of the following: seen, weighed, measured, felt, touched, stored, transported, exchanged, or that is in any other manner perceptible to the senses. Tax. The tax due from a retailer. Tax Deficiency or Deficiency means any amount of tax, penalty, interest, or other fee that is not reported and/or not paid on or before the date that any return or payment of the tax is required under the terms of this Code. Taxable sales. Gross sales less any exemptions and deductions specified in this Title. Taxable services. Services subject to the tax pursuant to this Title. Taxpayer. Any person obligated to collect and/or pay tax under the terms of this Title. Telecommunications services. 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. This term 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 communication. This term does not include separately EXHIBIT D – Section 23.04.010 stated non-transmission services which constitute computer-processing applications used to act on the information to be transmitted. Total tax liability. The total of all tax, penalties or interest owed by a taxpayer and shall include tax collected in excess of such tax computed on total sales. Use means the exercise, for any length of time by any person within the City of any right, power or dominion over tangible personal property or services when rented, leased or purchased at retail from sources either within or without the City from any person or vendor or used in the performance of a contract in the City whether such tangible personal property is owned or not owned by the taxpayer. Use also includes the withdrawal of items from inventory for consumption.