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HomeMy WebLinkAboutordinance.council.026-92 ORDINANCE NO. ~ (Series of 1992) AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, REPEALING AND REENACTING ARTICLES I, II AND III OF THE MUNICIPAL CODE OF THE CITY OF ASPEN TO ENACT GENERAL SALES TAX ADMINISTRATIVE REGULATIONS AND PROCEDURES FOR THE SELF COLLECTION OF RETAIL SALES TAXES; CODIFYING PREVIOUSLY ENACTED ORDINANCES IMPOSING RETAIL SALES TAXES, ESTABLISHING SPECIAL FUNDS AND LIMITING THE EXPENDITURE OF SALES TAX REVENUES TO SPECIFIED PURPOSES; AND PROVIDING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH. WHEREAS, the City Council of the City of Aspen, Colorado, did adopt Ordinance No. 16, Series of 1970, on August 17, 1970, to impose a one percent (1.0%) sales tax on the sale of tangible personal property at retail upon every retailer and the furnishing of services in the City of Aspen, Colorado, subject to the approval of a majority of qualified electors; and WHEREAS, a majority of the qualified electors at a special election held on September i, 1970, approved the imposition of a t.0% sales tax to become effective on January 1, 1971; and WHEREAS, the City Council determined that all revenues from the 1.0 % retail sales tax collected by the City of Aspen in any fiscal year shall be set aside in a separate fund entitled "Land Acquisition Including Open Space and Capital Improvement Fund", and expended by the City Council for the acquisition of real property including open space or construction of capital improvements incurred for such land acquisition including open space or construction of capital improvements, food tax refunds payable by the City, and for such expenditures as may be necessary to protect the real properties including open space acquired or the capital improvements constructed from any and all, threatened or actual, damages, loss, destruction or impairment from any cause or occurrences; and WHEREAS, a majority of the qualified electors at a special election held on February 1 13, 1990, approved an amendment to Ordinance No. 16, Series of 1970, requiring ail revenue collected on or after July 1, 1990, to 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 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 WHEREAS, the City Council of the City of Aspen, Colorado, did adopt Ordinance No. 15-A, Series of 1972, on August 28, 1972, to impose an additionai one percent (1.0%) sales tax on the sale of tangible personal property at retail upon every retailer and the furnishiag of services in the City of Aspen, Colorado, subject to the approval of a majority of qualified electors; and WHEREAS, a majority of the qualified electors at a speciai election held on November 7, 1972, approved the imposition of an additionai 1.0% sales tax to become effective on July 1, 1973; and WHEREAS, the City Council determined that ail revenues from the additional 1.0% retail sales tax collected by the City of Aspen in any fiscai year shall be expended by the City Council for payment of food tax refunds, capital improvements and capitai expenditures, acquisition of land, payment of indebtedness incurred for such capital improvement, capital expenditures or land acquisition, generai operating purposes, and for such expenditures as may be necessary to protect the real property acquired or the capital improvements constructed or 2 purchased from any and all threatened or actual damages, loss, destruction or impairment from any cause or occurrences; and WHEREAS, the City Council did adopt Ordinance No. 24, Series of 1985, on May 13, 1985, conditionally rescinding the additional one percent (1.0%) retail sales tax, subject to certain conditions to be satisfied by Pitkin County, Colorado, relating to the payment of food tax refunds, capital improvements and capital expenditures, and the payment of indebtedness incurred for such capital improvements and capital expenditures from the County's receipt of County sales taxes; and WHEREAS, the City Council of the City of Aspen, Colorado, did adopt Ordinance No. 24-A, Series of 1988, on July 11, 1988, to impose an additional one quarter of one percent (0.25 %) sales tax on the sale of tangible personal property at retail upon every retailer and the furnishing of services in the City of Aspen, Colorado, subject to the approval of a majority of qualified electors; and WHEREAS, a majority of the qualified electors at a general election held on August 8, 1988, approved the imposition of an additional 0.25 % sales tax to become effective on January 1, 1989; and WHEREAS, the City Council determined that all revenues from the additional 0.25% retail sales tax collected by the City of Aspen in any fiscal year shall be set aside in a separate fund designated as the "City of Aspen Parking Improvement Fund", and shall be expended by the City Council solely for the payment of services, facilities, and programs with regard to the construction of a parking facility on the Rio Grande property, paving a new street to connect Mill and Spring Streets, paving for the surface parking which remains outside of the parking facility on the site, all necessary incidental appurtenant facilities, structures, furnishings and equipment, land acquisition, general operating purposes, payment of indebtedness incurred in 3 connection therewith, reserves and for the expenditures necessary to protect any such property against loss or damage or destruction; and WHEREAS, the 0.25% additional sales tax shall expire at midnight on December 31, 2010, or the payment in full of ail indebtedness of the City issued from time to time and secured by the sales tax or the provision for such payment in accordance with the ordinance or ordinances authorizing the same, whichever event shall occur first in time; and WHEREAS, the City Council of the City of Aspen, Colorado, did adopt Ordinance No. 81, Series of 1989, on January 8, 1990, to impose an additional forty five hundredths of one percent (0.45 %) sales tax on the sale of tangible personal property at retail upon every retailer and the furnishing of services in the City of Aspen, Colorado, subject to the approval of a majority of qualified electors; and WHEREAS, a majority of the qualified electors at a special election held on February 13, 1990, approved the imposition of the additional 0.45 % sales tax to become effective on July 1, 1990, and terminating at midnight on June 30, 2000; and WHEREAS, the City Council determined that all revenues from the additional 0.45% retail sales tax collected by the City of Aspen in any fiscal year shall be set aside in a separate fund designated as the "Affordable Housing/Day Care Fund", and shall be expended by the City Council for the purpose of creating public or private affordable housing and day care opportunities within Aspen and Pitkin 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; and 4 WHEREAS, Ordinance No. 16, Series of 1970, set forth the rules and regulations for establishing eligibility for the refund of food taxes collected and established the amount of the refund at $7.00; and WHEREAS, Ordinance No. 15-A, Series of 1972, did amend the Municipal Code to provide for an increase of the annual food tax refund from $7.00 to $21.00; and WHEREAS, the City Council did adopt Ordinance No. 6, Series of 1981, to amend the Municipal Code to provide for an increase of the annual food tax refund from $21.00 to $39;00; and WHEREAS, H.B. 1007, enacted by the Fifty-fifth Colorado General Assembly and approved by the Governor on June 6, 1985, sets forth procedures for the collection of sales taxes by home rule cities; and the Council has determined that Article XX of the Colorado WHEREAS, City Constitution grants to home rule cities plenary power to levy and collect sales taxes within the City limits; and WHEREAS, the City Council does not endorse restrictions upon its taxing powers as a home rule city; and WHEREAS, the City Council does intend by enacting provisions consistent with H.B. 1007 to assist the business community and not to in any way prejudice its fight to fully exercise its Constitutional authority to levy and collect taxes within its boundaries; and WHEREAS, the City Council has determined that it is in the best interests of the City, its inhabitants and visitors to enact this ordinance to allow for the self collection of the retail sales taxes previously levied upon the sale of tangible personal property at retail and the furnishing of services as more particularly described and defined hereinafter. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That Articles I and III of Chapter 21 of the Municipal Code of the City of Aspen, entitled "In General" and "Licenses and Tax for Retail Sales and Services" respectively, are hereby repealed. Section 2. That Article II of Chapter 21 of the Municipal Code of the City of Aspen, Colorado, entitled "Real Property Tax Relief" is hereby amended to be retitled as Article III. Section 3. That Chapter 21 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by the addition of a new Article I and II to read as follows: CHAPTER 21 TAXATION ARTICLE I. TAX ADMINISTRATION DIVISION 1. GENERAL Sec. 21-01-1 Words and Phrases Defined Sec. 21-01-2 Exemption; Burden of Proof Sec. 21-01-3 Deductions and Credits Sec. 21-01-4 Acquisition, Inception, or Cessation of Business DIVISION 2. TAXPAYERS'S RESPONSIBILITIES Sec. 21-02-1 Retailer Responsible for Collection and Payment of Tax Sec. 21-02-2 Trust Status of Tax in Possession of Retailer Sec. 21-02-3 Filing Returns; Due Date Sec. 21-02-4 Reporting Periods Sec. 21-02-5 Duty to Keep Books and Records DIVISION 3. ADMINISTRATION Sec. 21-03-1 Authority of the Finance Director Sec. 21-03-2 Audit of Records Sec. 21-03-3 Tax Information Confidential 6 Sec. 21-03-4 Timely Payment; Computation of Dates DIVISION 4. TAX OVERPAYMENTS Sec. 21-04-1 Overpayment From Returns Sec. 21-04-2 Tax Overpayment Determined Through Audit Sec. 21-04-3 Refunds of Disputed Tax Sec. 21-04-4 Claim for Refund DIVISION 5. TAX DEFICIENCIES Sec. 21-05-1 Underpayments From Returns Sec. 21-05-2 Tax Deficiencies From Failure to File or Failure to Pro¥ide Record for Audit Sec. 21-05-3 Tax Deficiencies Determined Through Audit Sec. 21-05-4 Penalties Sec. 21-05-5 Interest Sec. 21-05-6 Notice of Assessment Sec. 21-05-7 Abatement of Deficiency DIVISION 6. TAXPAYER'S REMEDIES Sec. 21-06-1 Protest of Notice of Assessment or Denial or Refund Sec. 21-06-2 Hearings Sec. 21-06-3 Appeals DIVISION 7. ENFORCEMENT Sec. 21-07-1 Lien for Tax Due Sec. 21-07-2 Perpetuance of Lien Sec. 21-07-3 Release of Lien Sec. 21-07-4 Civil Action to Recover Tax Due Sec. 21-07-5 Jeopardy Assessment Sec. 21-07-6 Distraint and Sale Sec. 21-07-7 Status of Tax Due in Bankruptcy and Receivership Sec. 21-07-8 Violations, Summons and Complaint; Penalty Sec. 21-07-9 Statute of Limitations ARTICLE II. SALES TAX DIVISION 1. GENERAL Sec. 21-10-1 Legislative Intent Sec. 21-10-2 Sales Tax Licenses; Application and Content Sec. 21-10-3 Sales Tax Licenses; Cancellation or Revocation Sec. 21-10-4 Transient/Temporary Vendors Sec. 21-10-5 Sales By Charitable Organizations Sec. 21-10-6 Rate; Imposition and Collection; Distribution Sec. 21-10-7 Tax Schedule Sec. 21-10-8 Map or Location Guide of City Boundaries Sec. 21-10-9 Transactions and Items Subject to Tax Sec. 21-10-10 Exemptions from Sales Tax Sec. 21-10-11 Installment Sales Transactions 7 Sec. 21-10-12 Non-Resident Retailers Sec. 21-i0-13 Intercity Claims for Recovery Sec. 21-i0-14 Administration DIVISION 2. FOOD SALES TAX REFUNDS Sec. 21-13-1 Food Sales Tax Returns CHAPTER 21 TAXATION ARTICLE I. TAX ADMINISTRATION DIVISION 1. GENERAL Sec. 21-01-1. Words and Phrases Defined. When not clearly indicated otherwise by the context, the following words and phrases, as used in this Chapter, shall have the following meanings: Access The services furnished' local to its customers who by a exchange company Services provide telecommunications services which allow them to provide such telecommunications services. 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. Automotive Any vehicle or device in, upon, or by which any person or property is or Vehicle may be transported or drawn upon a public highway, or any device used or designed for aviation or flight in the air. This term includes, hut isnot limited to, motor vehicles, trailers, semi-trailers, and mobile homes. This term shall not include devices moved by human power or used exclusively upon stationary rails or tracks. Business Ail 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 of Aspen. Casual An individual, single or incidental transaction which in itself does not Sale constitute the carrying on of business. 8 Charitable Any entity which: Organization 1) has obtained tax exempt status as a charitable not-for-profit organization pursuant to Section 501(c)(3) of the Internal Revenue Code; and 2) 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 The municipality of Aspen. Code The Aspen Municipal Code. Coin Operated Device Any device operated by coins or currency. Commercial Containers, labels, and shipping cases sold to a person engaged in Packaging manufacturing, compounding, wholesaling, jobbing, retailing, packaging, Materials 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 said person along with and as a part of the finished product to the purchaser; and, 3. Is not returnable to said person for reuse. Construction Any equipment used by a person in making improvements or building Equipment structures. Construction Tangible personal property which, when combined with other tangible Materials 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, wall board, wall coping, wall paper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The 9 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. Consumer Any individual person, or person engaged in business in the City, who uses, stores, distributes, or otherwise consumes in the City, tangible personal property or taxable services purchased from sources inside or outside the City. Drugs Drugs dispensed in accordance with any order in writing, dated, and Dispensed In signed by a licensed practitioner of the healing arts or given orally Accordance by a practitioner, and immediately reduced to writing by the pharmacist, With A assistant pharmacist, or pharmacy intern, specifying the name and address Prescription of the person for whom the medicine, drug, or poison is offered and directions, if any, to be placed on the label. Employee Any person working for pay under the control and direction of an employer. Engaged In Performing or providing services or selling, leasing, renting, delivering, Business or installing tangible personal property 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: i. Directly, indirectly, or by a subsidiary, maintains a building, store, office, salesroom, warehouse, or other place of business within the City; 2. Sends one or more employees, agents, or commissioned sales persons into the City to solicit business or to install, assemble, repair, service, or assist in the use of its products, or for demonstration or other reasons; 3. Maintains one or more employees, agents, or commissioned sales persons on duty at a location within the City; 4. Owns, leases, rents, or otherwise exercises control over real or personal property within the City; or, 5. Makes more than one delivery into the City within a twelve month period. Finance The Finance Director of the City of Aspen or such other person designated Director by the City. The term shall also include such person's designee. Gross Sales The total amount received in money, credit, property, or other consideration valued in money for all sales, leases, or rentals of tangible 10 personal property or services. License A City of Aspen sales tax license required pursuant to Section 21-10-30. License The Finance Director of the City of Aspen. Officer Lodging The furnishing of rooms or accommodations by any person, partnership, Services 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, or trailer court and park, or similar establishment, for a period of less than thirty days under any concession, permit, right of access, license to use, or other agreement, or otherwise. Medical Drugs dispensed in accordance with a prescription; insulin in all its forms Supplies 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 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. Mini Storage A building or group of buildings containing individual storage units rented or or leased to individuals for the storage of merchandise, commodities, or Mini-Warehouse private property. 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 of Aspen. 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, nor pocket editions of books. Open To Any place or event or activity where the admission or access to which is The Public open to members of the public whether upon payment of a charge or fee or oot. 11 Pay Includes, but is not limited to, cable, microwave, or other television Television service for which a charge is imposed. 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. Pre-written Systems programs or application programs that are not written specifically Computer for the user. Programs Prescription Drugs dispensed in accordance with any order in writing, dated and signed Drugs by a practitioner, or given orally by a practitioner, specifying the animal for Animals for which the medicine or drug is offered and directions, if any, to be placed on the label. Price or 1. The price to the consumer, exclusive of any direct tax imposed by Purchase the federal government or by this Article and, in the case of all Price 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: (a) Such exchanged property is to be sold thereafter in the usual course of the retailer's business; or, (b) 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. 2. The terms "Price" or "Purchase Price" include: (a) The amount of money received or due in cash and credits. (b) Property at fair market value taken in exchange but not for resale in the usual course of the retailer's business. (c) 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. 12 (d) 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. (e) Installation, delivery, and wheeling-in charges included in the purchase price and not separately stated. (f) Transportation and other charges to effect delivery of tangible personal property to the purchaser. (g) Indirect federal manufacturers' excise taxes, such as taxes on automobiles, tires, and floor stock. (h) 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. 3. The terms "Price" or "Purchase Price" do not include: (a) Any sales or use tax imposed by the State of Colorado or by any political subdivision thereof. (b) 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. (c) 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 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 Any artificial limb, part, device, or appliance for human use which aids Devices 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 13 limited to prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, oxygen concentrators, and oxygen with related accessories. 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 1. The acquisition for any consideration by any person of tangible or Sale 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. These terms include capital leases, installment and credit sales, and property and services acquired by: (a) Transfer, either conditionally or absolutely, of title or possession, or both, to tangible personal property. (b) 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. (c) Performance of taxable services; or, (d) Barter or exchange for other property or services includ:ing coupons. 2. The terms "purchase" and "sale" do not include: (a) A division of partnership assets among the partners according to their interests in the partnership; (b) '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; (c) The transfer of assets of shareholders in the formation or dissolution of professional corporations; 14 }~ (d) The dissolution and the pro rata distribution of a corporation's assets to its stockholders: (e) A transfer of a partnership interest; (f) The transfer in a reorganization qualifying under Section 368(a)(1) of the Internal Revenue Code of 1954, as amended; (g) 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; (h) The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder; (i) The transfer of assets from a parent corporation to a subsidiary corporation or corporations which are owned at least eighty percent by the parent corporation, which transfer is solely in exchange for stock or securities of the subsidiary corporation; i10 (j) assets a subsidiary corporation or The transfer of from corporations wbich are owned at least eighty percent by the parent corporation to a parent corporation or to another subsidiary which is owned at least eighty percent 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; (k) 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 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 suc~ an extent any transfer referred to in this paragraph (k) shall constitute a sale. For the purpose of this paragraph (k), a closely held subsidiary corporation is one in which the parent corporation owns stock possessing at least eighty percent of the total combined voting power of all classes of stock entitled to vote and owns at least eighty percent of 15 the total number of shares of all other classes of stock. Retail Sales All sales made within the City except wholesale sales. Retailer Any person selling, leasing, or renting tangible personal property or service at retail. Retailer shall include any: 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. Return The sales tax reporting form used to report sales tax. Sales Tax The tax to be collected and remitted by a retailer on sales taxes under this Chapter. State The State of Colorado. Storage Any indoor or outdoo[ area, structure, or warehouse which is ordinarily Facility used to store tangible personal property. This term shall not include kennels, lockers, mobile home pads, safe deposit boxes, reservoirs, or lease or rental of storage space in conjunction with the lease of an area at which a business is conducted. Storage Space Any mini storage, mini warehouse, or storage facility. Tangible Corporeal personal property. Personal Property Tax The sales tax due from a retailer. Tax Any amount of tax that is not reported or not paid on or before the due Deficiency date. Taxable Gross sales less any exemptions and deductions specified in this Chapter. Sales Taxable Services subject to the tax pursuant to this Chapter. 16 Services Taxpayer Any person obligated to collect and/or pay tax under the terms of this Chapter. Tele- Thc transmission of any two-way interactive electromagnetic Communications communications including but not limited to voice, image, data, and any Services 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 doesnot include separately stated non-transmission services which constitute computer processing applications used to act on thc information to be transmitted. Therapeutic Devices, appliances, or related accessories that are sold to correct or treat Device 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, 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. Total Tax The total of all tax, penalties, or interest owed by a taxpayer and shall Liability include sales tax collected in excess of such tax computed on total sales. Transient/ Any person who engages in a temporary business of selling and delivering Temporary goods within the City, and who, in furtherance of such purpose, leases, Vendor uses, or occupies any physical space within the City for the exhibition and sale of such goods for a period of thirty (30) days or less. Wholesale Sales to licensed retailers, jobbers, dealers, or wholesalers for resale. Sales Sales by wholesalers to consumers are not wholesale sales. Sales by wholesalers to non-licensed 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. Sec. 21-01-2. Exemption; Burden of Proof. The burden of proving that any retailer is exempt from collecting or paying tax shall be on the retailer under such reasonable requirements of proof as the Finance Director may prescribe. 17 Sec. 21-01-3. Deductions and Credits. (A) Deductions from Gross Sales: If included in reported gross sales, the following are deductible from gross sales: 1. Refunds: The price of admissions, accommodations, tangible personal property, or taxable services returned by a purchaser when the price and the tax collected are refunded in cash or by credit. 2. Bad Debts: Taxable sales which are found to be worthless and are actually and properly charged off as bad debts for Federal income tax purposes. Any amount so deducted and subsequently collected by the taxpayer shall be subject to the tax. 3. Interest and Finance Charges: The amount of interest or finance charges on credit extended in connection with any sale, provided that the interest or finance charges are separately stated from the price. (B) Credits from Tax Due: 1. Vendor's Fee: A retailer's collection and remittance expense equal to three and three tenths percent (3.3 %) of the sum of the sales tax computed and any excess tax collected may be taken as a credit against tax paid on or before the due date, except that such credit shall not exceed $50.00 for any regular or periodic return. Such vendor's fee shall be forfeited for any tax that is not reported and paid by the due date. Forfeiture of the vendor's fee shall be prima facie evidence that the taxpayer was in violation of this Chapter. 2. Amounts previously paid pursuant to a tax levied by the City may be credited against the tax due on transactions or items when the present owner or user has previously paid a legally imposed sales tax on the transaction or item; except that the amount of such credit shall not exceed the amount of tax on such transaction or item computed at the rate established by Section 21-10-6. Sec. 21-01-4. Acquisition, Inception or Cessation of Business. (A) Purchase of An Existing Business: 1. Seller's Responsibilities: Any person engaged in business in the City who sells such business shall file a final return. The reporting period for such return shall end on the date of the transfer of ownership of the business. 2. Purchaser's Responsibilities: 18 (a) Any person who purchases an existing business shall be responsible for determining the total tax liability from that business and shall withhold from the initial purchase payment an amount sufficient to cover all such total tax liability, unless the former owner produces a receipt from the City showing that the total tax liability has been paid or a certificate from the City that there is no total tax liability. Co) Any amount so withheld shall be paid to the City within ten (10) days of the date of the sale of the business. (c) Any purchaser who fails to withhold such total tax liability or fails to pay to the City the amount so withheld within the ten (10) day period allowed, shall, as well as the seller, be liable for any unpaid total tax liability. (B) Acquisition of an Existing Business by Means Other Than Purchase: Any person who acquires or takes control of an existing business or the assets of an existing business by means other than purchase shall be responsible for payment of any total tax liability from that business. Cessation of Business: (c) Every person engaged in business in the City who quits doing business in the City shall file a final return. The reporting period for such return shall end on the last day of the business in the City. DIVISION 2. TAXPAYER'S RESPONSIBILITIES Sec. 21-02-1. Retailer Responsible for Collection and Payment of Tax~ Every retailer engaged in business in the City shall be liable and responsible for payment of an amount equivalent to the taxable sales multiplied by the specified rate. (A) TAX ADDED TO PRICE: Retailers shall add the tax imposed, or the average equivalent thereof, to the price, showing such tax as a separate and distinct item. Except as provided in this Subsection, no retailer shall advertise or hold out or state to the public or to any consumer, directly or indirectly, that the tax orany part thereof shall be assumed or absorbed by the retailer, or that it will not be added to the price, or if added, that it or any part thereof shall be refunded! 1. Sales tax may be included in the price of any malt, vinous, or spirituous liquor sold by the drink. 2. Sales tax may be included in the price of items sold from coin operated devices or the price of utilizing such devices. 19 3. Sales tax may be included in the price of an admissions charge. (B) TAX CONSTITUTES DEBT: Any tax added to the price by a retailer shall constitute a debt from the purchaser to the retailer until paid and shall be recoverable at law in the same manner as other debts. (C) EXCESS TAX: No retailer shall retain any tax collected in excess of the tax computed, but shall report such excess collections on the return for the period in which it was collected and include it in the calculation of tax due. (D) DISPUTED TAX: When a dispute arises between a retailer and a purchaser who claims that the sale is exempt from the tax, the retailer shall collect and the purchaser shall pay such tax. The purchaser may then submit a Claim for Refund to the City within sixty (60) days of the date of purchase. Any such tax refunded by the City will be paid directly to the purchaser. Sec. 21-02-2. Trust Status of Tax in Possession of Retailer. All tax collected by a retailer shall be the property of the City and remain public money in the hands of such retailer, who shall hold the same in trust for the sole use and benefit of the City until paid to the City. Filing Returns; Due Date. Sec. 21-02-3. (A) Every taxpayer shall file a return, whether or not tax is due, and remit any tax due to the City on or before the twentieth day following the end of the reporting period. (B) A retailer engaged in business in the city at two or more locations, whether inside or outside the City, who collects tax, may file a single return encompassing ail locations when accompanied by a supplemental schedule showing the gross sales and net taxable sales for each location. (C) For good cause shown in a written request of a taxpayer, the Finance Director may extend the time for making returns and paying any tax due. (D) No person shall make any false statement in connection with a return. Sec. 21-02-4. Reporting Periods. (A) Unless otherwise required or approved, taxpayers shall file returns and pay taxes as follows: 1. A taxpayer whose monthly tax due to the City is less than ten dollars ($10) may file returns and pay sales tax monthly or annually at the end of the calendar year. 20 2. A taxpayer who in any month has a monthly tax due to the City often dollars ($10) or more shall file returns and pay tax monthly and continue to pay monthly for each month for the remainder of the calendar year. (B) The reporting period for a final return shall end on the date of the transfer of ownership of the business, or the last day of business. (C) The reporting period for a temporary business shall end on the day the temporary location closes or special event concludes. (D) In order to ensure collection of tax, the Finance Director may require a taxpayer to remit tax and file returns on a more frequent basis than set forth in this Section. (E) If the accounting methods employed by the taxpayer, or other conditions are such that returns made on a calendar month basis will impose unnecessary hardship, the Finance Director may, upon written request of the taxpayer, accept returns at such intervals as will, in the opinion of the Finance Director, better suit the convenience of the taxpayer, but not jeopardize the collection of the tax. (F) If any taxpayer who has been granted permission to file returns and pay tax on other than a monthly basis becomes delinquent, authorization for such alternative method of reporting may be revoked by the Finance Director immediately following notice of such revocation, and the taxpayer shall file returns and pay tax on a monthly basis as if the alternate method of reporting and paying the tax had never been granted. Sec. 21-02-5. Duty to Keep Books and Records. Every person engaged in business in the City shall keep and preserve for at least three years after the date of the taxable transaction suitable records which will allow the accurate determination of any tax due. DIVISION 3. ADMINISTRATION Sec. 21-03-1. Authority of the Finance Director. The administration of this Chapter is hereby vested in the Finance Director. (A) FORMS AND PROCEDURES: The Finance Director shall prescribe forms and administrative procedures for the ascertainment, assessment, and collection of the tax not inconsistent with this Chapter. (B) REGULATIONS: The Finance Director may formulate and promulgate appropriate regulations to effectuate the purpose of this Chapter as provided by this Code. 21 ~q (C) ADDITIONAL INFORMATION: The Finance Director may require any person to make additional returns, render statements, furnish records, or make informational reports to determine whether or not such person is liable for payment or collection of the tax. (D) SUBPOENAS: The Finance Director may issue a subpoena to command a person to attend and give testimony or to produce books, accounts, and records. 1. Any subpoena issued under the terms of this Chapter shall be served as set forth in the Colorado Rules of Civil Procedure or Municipal Court Rules, including the payment of witness fees. When the witness is subpoenaed at the insistence of the City, such fees shall be paid by the City. When a witness is subpoenaed at the insistence of the taxpayer, the Finance Director may require that the cost of service of the subpoena and the fee be paid by the taxpayer. In the discretion of the Finance Director, a deposit to cover the cost of the subpoena and witness fees may be required. 2. If a subpoena issued by the Finance Director is duly served and the respondent fails to attend, give testimony, or to produce books, accounts, and records as commanded, the Finance Director may request tbe City Attorney to file a motion with the Municipal Court of the City for an ,,5~ order enforcing the subpoena. (E) OATHS: The Finance Director is authorized to administer oaths and take testimony at the hearing. (F) AGENTS: The Finance Director may designate agents to assist in the performance of the duties and responsibilities set forth in this Chapter. (G) LIQUOR LICENSES: Prior to the renewal, transfer, or issuance of a license to sell any malt, vinous, or spirituous liquor, the Finance Director shall certify to the City Clerk that all returns have been filed and taxes paid. (H) PARTIAL PAYMENTS: The Finance Director may accept any partial payment made and apply such payments towards the tax due. Deposit of such payments shall not in any way imply that the remaining balance is or has been abated. (I) MOTOR VEHICLE REGISTRATIONS: If the Finance Director determines that a person has registered or caused to be registered a motor vehicle outside the City and that such motor vehicle should have been registered at an address in the C~ty, the Finance Director is authorized to assess a civil penalty of five hundred dollars ($500.00) against the person. A written notice of the penalty assessment shall be issued, paid, and protested in the same manner as a notice of assessment. The Finance Director may enforce collection of the penalty assessment in the same manner as provided in this Chapter for the collection of tax due. Assessment and collection of this penalty shall not preclude the collection of any tax due or fee 22 or the imposition of any other civil or criminal penalty provided by law. (J) NOTICES: Notices required by this Chapter shall be in writing and delivered in person or sent post paid by first class mail, to the last known address of the taxpayer. Sec. 21-03-2. Audit of Records. (A) For the purpose of ascertaining the correct amount of total tax liability from any person engaged in business in the City, the Finance Director may authorize an agent to conduct an audit by examining any relevant books, accounts, and records of such person. (B) All books, accounts, and records shall be open at any time during regular business hours for examination by the Finance Director or an authorized agent of the Finance Director. If any taxpayer refuses to voluntarily furnish any of the foregoing information when requested by the Finance Director or authorized agent, the Finance Director may issue a subpoena to require that the taxpayer or their representative attend a hearing or produce any such books, accounts, and records for examination. (C) Any tax deficiency or overpayment ascertained through audit shall be computed by one or more of the following methods as the Finance Director or agent of the Finance Director deems appropriate: 1. By identifying transactions on which the tax was not properly or accurately collected or paid. 2. By identifying other irregularities in the calculation of tax due. 3. By using either of the above methods on a representative sample of the taxpayer's records, and using the results to project the amount of tax deficiency or overpayment, if any. (D) Any charitable organization claiming exemption under the provisions of this Chapter is subject to audit in the same manner as any other person engaged in business in the City. (E) COORDINATED AUDIT: Any taxpayer licensed in this City pursuant to Section 21-10-2, and holding a similar sales tax license in at least four other Colorado municipalities that administer their own sales tax collection, may request a coordinated audit as provided herein. 1. Within 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 Finance Director of this City, by certified mail, return receipt requested, a written request for a coordinated audit indicating the 23 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 using 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 taxpayer for the audit period. 2. Except as provided in subsection 6 herein, any taxpayer that submits a completed request for a coordinated audit and promptly signs a waiver of the statute of limitations, may be audited by this City during the twelve months after such request is submitted only through a coordinated audit involving ali municipalities electing to participate in such an audit. 3. If this City desires to participate in the audit of a taxpayer that submits a completed request for a coordinated audit pursuant to subsection 2 herein, the Finance Director shall so notify the Finance Director of the municipality whose notice of audit prompted the taxpayer's request within ten days after receipt of the taxpayer's request for a coordinated audit. The Finance Director 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. 4. If the taxpayer's request for a coordinated audit was in response to a notice of audit issued by this City, this City's Finance Director 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 Finance Director 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. 5. If the taxpayer's request for a coordinated audit was in response to a notice of audit issued by this City, this City's Finance Director shall, once arrangements for the coordinated audit between this City and other participating municipalities are completed, provide written notice to th~ 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 Finance Director shall also propose a schedule for the coordinated audit. 24 6. 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 statute of limitations; or (d) When a taxpayer fails to provide a timely and complete request for a coordinated audit as provided in paragraph 1. Sec. 21-03-3. Tax Information Confidential. All specific information gained under the provisions of this Chapter which is used to determine the total tax liability from a taxpayer, whether furnished by the taxpayer or obtained through audit, shall be treated by the City and its officers, employees, or legal representatives as confidential. (A) Except in accordance with judicial order or as otherwise provided by law, the City Manager, Finance Director, and agents, clerks, and employees thereof sl~all not divulge or make known in any way any information disclosed in any document, report, or return filed under this Chapter except such information as is displayed on the tax license. The officials charged with the custody of documents, reports, and returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the City Manager in an action or proceeding under the provisions of this Chapter when the report of a fact shown thereby is directly involved in such action or proceeding, in either of which events the court may require the production of, and may admit into the evidence, so much of said reports or of the facts shown thereby as are pertinent to the action or proceeding, and no more. (B) Nothing contained 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 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 City Manager may furnish to 25 the taxing official 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 Chapter or in the report of an audit or investigation made with respect to a return, if the recipient jurisdiction agrees with the City Manager to grant similar privileges to the City and provided further that such information shall be used by the recipient jurisdiction only for tax purposes. Sec. 21-03-4. Timely Payment; Computation of Dates. (A) Timely payment shall be evidenced by the postmark date if mailed; otherwise timely payment shall be evidenced by the City cashier validation date. (B) Any due date, payment date, or deadline for paying the total tax liability or providing information or taking other action, which falls on a Saturday, Sunday, or legal holiday recognized by either the Federal government, the State of Colorado, or the City, shall be extended to the first business day following such weekend or holiday. DIVISION 4. TAX OVERPAYMENTS Sec. 21-04-1. Overpayment From Returns. If the amount remitted with the return is more than the total tax liability as computed from information in such return, a Notice of Overpayment will be issued. After examining such notice, the taxpayer may either submit a Claim for Refund or report the correct total tax liability by filing an amended return. No refund of such overpayment shall be paid unless a signed Claim for Refund is submitted on or before the thirtieth (30th) day after the date of the Notice of Overpayment. Sec. 21-04-2. Tax Overpayment Determined Through Audit. If the City ascertains through an audit of a taxpayer's records that the total tax liability is less than the full amount paid, a Notice of Overpayment shall be issued. Such notice will serve as documentation for a Claim for Refund, if such claim is signed and submitted by the taxpayer within thirty (30) days of the date of the Notice of Overpayment. Sec. 21-04-3. Refunds of Disputed Tax. Refunds of tax paid to a retailer by a purchaser who claims that the sale is exempt from the tax may be requested by such purchaser by signing and submitting a Claim for Refund on or before sixty (60) days from the date of such purchase. Sec. 21-04-4. Claim for Refund. No tax overpayment shall be refunded unless a Claim for Refund is signed and submitted 26 to the City by the taxpayer. (A) APPLICATION: An application for refund of tax shall: 1. Be made on a Claim for Refund form furnished by the City; 2. Be signed by the taxpayer; and 3. Include adequate documentation of the claim. (B) DECISION: The Finance Director shall examine the Claim for Refund and give written notice to the taxpayer of the amount to be refunded or denied. (C) REFUNDS NOT ASSIGNABLE: The right of any person to obtain a refund pursuant to this Chapter shall not be assignable. (D) FALSE STATEMENTS: No person shall make any false statements in connection with a Claim for Refnnd. DIVISION 5. TAX DEFICIENCIES Sec. 21-05-1. Underpayments From Returns. If the amount remitted with a return is less than the tax computed from information in such return, a Notice of Assessment shall be issued. Sec. 21-05~2. Tax Deficiencies From Failure to File or Failure to Provide Records for Audit. (A) If any taxpayer neglects or refuses to obtain a retail sales tax license, the amount of the total tax liability shall be estimated, based upon such information as may be available, and a Notice of Assessment shall be issued. (B) If any taxpayer neglects or refuses to file a return by the due date, the total tax liability shall be estimated, based upon such information as may be available, and a Notice of Assessment shall be issued. (C) If any taxpayer neglects or refuses to provide adequate books, accounts, and records requested for audit, the total tax liability shall be estimated, based upon such information as may be available, and a Notice of Assessment shall be issued. (D) Estimated total tax liability shall be adjusted if a return reporting actual total tax liability is filed. Sec. 21-05-3. Tax Deficiencies Determined Through Audit. If the City ascertains through an audit of the taxpayer's records, that the tax due has not 27 been fully reported or paid by the applicable due date, a Notice of Assessment shall be issued. Sec. 21-05-4. Penalties. (A) PENALTY FOR LATE PAYMENT OF SALES TAX: A penalty of fifteen dollars ($15) or ten percent (10%) of the tax deficiency, whichever is greater, shall be levied on any tax deficiency. (B) PENALTY FOR FRAUD: If any tax deficiency is due to fraud or the intent to evade the tax, the penalty shall be fifty percent (50%) of the total tax deficiency. (C) PENALTY FOR REPEATED ENFORCEMENT: If three Notices of Assessment have been issued to the same taxpayer within thirty-six (36) consecutive months, a special penalty of fifteen percent (15%) of the total tax liability, or twenty five dollars ($25.00), whichever is greater, shall be levied in addition to the penalties levied in (A) above. (D) ABATEMENT OF PENALTY: Any penalty assessed in this Chapter may be abated by the Finance Director if the Finance Director finds good cause therefore and: 1. If the taxpayer submits a written request for such abatement on or before the payment due date of the applicable Notice of Assessment; or, 2. If no assessment was issued, within 60 days after payment of the tax. Sec. 21-05-5. Interest. (A) Interest shall be levied on any tax deficiency at the rate of one and one half percent (1.5%) per month. (B) Interest shall be calculated for each month or portion of a month from the due date that a tax deficiency remains unpaid. (C) When a timely protest is made to a Notice of Assessment, no additional interest shall be assessed on any tax upheld by the Finance Director for the period between the interest date of such assessment and the payment date established in an informal meeting or thirty (30) days after the date of a Findings of Fact, Conclusion, and Decision Issued after a hearing. (D) Any interest properly assessed on a tax deficiency may be abated by the Director of Finance as provided above for the abatement of penalties. Sec. 21-05-6. Notice of Assessment. The Finance Director or specifically authorized agent shall issue a Notice of Assessment 28 for any tax deficiency, penalties, or interest due. (A) Notices of Assessment shall be in writing and delivered in person or sent postpaid by first class mall to the last known address of the taxpayer. (B) The payment due date for the total tax liability pursuant to a Notice of Assessment shall be twenty (20) days after the date of the Notice of Assessment. Sec. 21-05-7. Abatement of Deficiency. The Finance Director shall promulgate policies and procedures for processing tax deficiency abatements which shall include a provision that all abatements in excess of five thousand dollars shall require the prior approval of the City Manager and that all abatements in excess of five hundred dollars shall be reported to the City Manager. All tax deficiency abatements shall only be made in accordance with said policies and procedures. DIVISION 6. TAXPAYER'S REMEDIES Sec. 21-06-1. Protest of Notice of Assessment or Denial or Refund. (A) Any Notice of Assessment may be protested by the taxpayer to whom it is issued. 1. A protest of a Notice of Assessment issued to a vendor or taxpayer for failure to file a return, for underpayment of tax owed, or as a result of an audit shall be submitted in writing to the Finance Director within twenty (20) calendar days from the date of the Notice of Assessment. Any such protest shall identify the amount of tax disputed and the basis for the protest. 2. When a timely protest is made, no further enforcement action will be instituted by the City for the portion of the assessment being protested unless the taxpayer fails to pursue the protest in a timely manner. (B) Protest of Denial of Refund: A protest of a denial of a refund shall be submitted in writing to the Finance Director within twenty (20) calendar days from the date of the denial of the refund and shall identify the amount of the refund requested and the basis for the protest. (C) Any timely protest entitles a taxpayer to a hearing under the provisions of this Chapter. Sec. 21-06-2. Hearings. (A) The City shall commence a hearing within sixty (60) days after the City's receipt of the taxpayer's written protest; except the City may extend such period if the delay is requested by the taxpayer. The Finance Director shall notify the taxpayer 29 in writing of the time and place of such headngo (B) Every hearing shall be held in the City before the Finance Director or his designated representative. (C) The taxpayer may assert any facts, make any arguments and file any briefs and affidavits which, in the opinion of the taxpayer, are pertinent to the protest. The filing of briefs shall not be required. (D) Based on the evidence presented at the hearing, the Finance Director or his designated representative shall issue a Findings of Fact, Conclusions, and Decision which may modify or abate the tax, penalties, and interest protested at the hearing, approve a refund, or uphold the assessment. (E) After such hearing, the taxpayer shall not be entitled to a second hearing onthe same Notice of Assessment or denial of refund. (F) Unless the decision of the Finance Director is appealed as provided in this Chapter, the remaining total tax liability, if any shall be paid on or before thirty (30) days after the date of the Findings of Fact, Conclusions, and Decision. Sec. 21-06-3. Appeals. (A) Subsequent to a hearing the taxpayer may appeal the decision of the Finance Director to the Pitkin County District Court pursuant to Rule 106 (a)(4) of the Colorado Rules of Civil Procedure. (B) An appeal of a final decision of the Finance Director in a hearing held pursuant to this Section shall be commenced within thirty (30) days of such decision. (C) Upon the appeal to the District Court the taxpayer shall either file with the Finance Director a bond for twice the unpaid amount or deposit the unpaid amount with the Finance Director. DIVISION 7. ENFORCEMENT Sec. 21-07-1. Lien for Tax Due. (A) ISSUANCE: If any total tax liability is not paid by the payment date of a Notice of Assessment, the Finance Director may issue a Notice of Lien on the real and personal property of the taxpayer. Such lien shall specify the name of the taxpayer, the total tax liability, the date of the accrual thereof, the location of the property, and shall be certified by the Finance Director. (B) FILING: The Notice of Lien shall be filed in the office of the Clerk and Recorder of any county in Colorado in which the real or personal property of the taxpayer 30 is located. Such filing shall create a lien on such property in that county and constitute a notice thereof. (C) PRIORITY: The attachment and priority of such lien shall be as follows: 1. Such lien shall be a first and prior lien upon the goods, stock in trade, and business fixtures owned or used by any taxpayer, including those used under lease, installment sale, or other contract agreement, and shall take precedence on all such property over all other liens or claims of whatsoever kind or nature. 2. Such lien on the real and tangible personal property of the taxpayer that is not goods, stock in trade, and business fixtures shall be a first and prior lien except as to pre-existing claims or liens of a bona fide mortgagee, pledgee, judgment creditor, or purchaser whose rights have attached and been perfected prior to the filing of the notice of lien. 3. The personal property of an owner who has made a bona fide lease to a taxpayer shall be exempt from the lien created in this Subsection if such property can reasonably be identified from the lease description and if the lessee is given no right to become the owner of the property leased. This exemption shall be effective from the date of the execution of the lease if the lease is recorded with the County Clerk and Recorder of the County where the property is located or based. 4. Motor vehicles which are properly registered in this state, showing the lessor as owner thereof, shall be exempt from such lien except that such lien shall apply to the extent that the lessee has an earned reserve, allowance for depreciation not to exceed the fair market value, or similar interest which is or may be credited to the lessee. 5. Where a lessor and lessee are blood relatives by law or have twenty-five percent (25%) or more common ownership, a lease between such lessee and such lessor shall not be considered as bona fide for purposes of this Section. (D) ENFORCEMENT AGAINST REAL PROPERTY: If a Notice of Lien is filed against real property, the Finance Director may request the City Attorney to: file a civil action to enforce such lien. The court may determine the interest in the property of each party, decree a sale of the real property, and distribute the proceeds according to such findings. Procedures for the action and the manner of sale, the period for and mmmer of redemption from the sale, and the execution of deed of conveyance shall be in accordance with the law and practice relating to foreclosures of mortgages upon real property. In any such action, the court may appoint a receiver of the real property involved in such action if equitY so requires. 31 Sec. 21-07-2. Perpetuance of Lien. (A) Any lien for total tax liability shall continue until a Release of Lien is flied by the Finance Director. (B) Any person who purchases or repossesses real or personal property upon which a lien has been filed by the Finance Director for total tax liability shall be liable for the payment of such total tax liability up to the value of the property taken or acquired. Sec. 21-07-3. Release of Lien. Upon payment of the total tax liability or enforcement of the lien, the Finance Director shall file a Release of Lien with the County Clerk and Recorder of the County in which the lien was filed. Sec. 21-07-4. Civil Action to Recover Tax Due. (A) Any unpaid total tax liability shall constitute a debt of the taxpayer to the City and the Finance Director may request the City Attorney to file a civil action to collect such total tax liability. (B) The return filed by a taxpayer or the Notice of Assessment issued by the Finance Director shall be prima facie proof of the total tax liability. (C) If a judgment is obtained by the City, collection of the total tax liability may be made by attachment, garnishment, or other means authorized by law. When attachment is sought, no bond shall be required of the Finance Director nor shall any sheriff require of the Finance Director an indemnity bond for executing the writ of attachment or writ of execution upon any judgment. Sec. 21-07-5. Jeopardy Assessment. (A) ISSUANCE: If the collection of any total tax liability from a taxpayer, whether or not previously assessed, will be jeopardized by delay, the Finance Director may declare the taxable period immediately terminated, determine the total tax liability, and issue a Jeopardy Assessment and Demand for Payment. Any total tax liability so assessed shall be due and payable immediately. (B) SECURITY FOR PAYMENT: Enforcement of a jeopardy assessment and demand for payment may be stayed if the taxpayer gives security for payment which is satisfactory to the Finm~ce Director. (C) DISPUTE OF JEOPARDY ASSESSMENT: If, in the opinion of the taxpayer, the jeopardy assessment is not for the correct amount of total tax liability; the taxpayer shall pay the total tax liability as assessed and submit a claim for refund to the City. 32 Sec. 21-07-6. Distraint and Sale. (A) Unless such property is exempt by State statute from distraint and sale, the Finance Director may sign and issue a warrant directed to any employee or agent of the City, or any sheriff of any county in Colorado, commanding the distraint and sale of personal property of the taxpayer on which a lien has attached for the payment of the total tax liability. 1. Such warrant may be issued if the total tax liability is not paid on or before twenty (20) days from the payment date of a Notice of Assessment and no protest of such assessment has been timely filed. 2. Such warrant may be issued immediately if a Jeopardy Assessment and Demand for Payment has been issued. (B) If the taxpayer does not volunteer entry to the premises, the Finance Director may apply to the Municipal Court of the City for a warrant authorizing any employee or agent of the City to search for and distrain property located inside the City to enforce the collection of total tax liability. 1. The Finance Director shall demonstrate to the Court that the premises to which entry is sought contains property that is subject to distraint and sale tax liability. for total 2. If a Jeopardy Assessment and Demand for Payment has been issued, the Finance Director shall specify to the Court why collection of the total tax liability will be jeopardized. 3. The procedures to be followed in issuing and executing a warrant pursuant to this Subsection shall comply with Rule 241 of the Colorado Municipal Court Rules of Procedure. (C) DISPOSAL OF DISTRAINED PROPERTY: 1. A signed inventory of the property distrained shall be made by the City or its agent. Prior to the sale the owner or possessor shall be served with a copy of said inventory, a notice of the sum of the total tax liability and related expenses incurred to date, and the time and place of sale. 2. 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 or, in lieu thereof and in the discretion of the Finance Director, the notice shall be posted at the courthouse of the county where distraint is made, and in at least two other places within such county. 3. The time fixed for the sale shall not be less than ten (10) days nor more 33 than sixty (60) days from the date of the distraint. The sale maybe postponed by the City of agent for no more than ninety (90) days from the date ohginally fixed for the sale. 4. 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. 5. 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. 6. 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 total tax liability and all collection costs no less than twenty-four (24) hours before the sale. 7. The City or its agent shall issue to each purchaser a certificate of sale which shall be prima facie evidence of its right to make the sale and 40 transfer to the purchaser ail 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, companyi or association to record the transfer on 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. 8. Any surplus remaining after satisfaction of the total tax liability plus any costs of making the distraint and advertising the sale may be distributed by the City 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 fight thereto. 9. The Finance Director shall submit a written account of the sale to the City Manager. (D) EXEMPT PROPERTY: 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 saie, or other contract arrangement. Property exempt from distraint and sale shall include the personal property described as such in Section 21-10-20 (C). 34 i!O (E) RETURN OF THE PROPERTY: The taxpayer or any person who claims ownership interest or right of possession in the distrained property may petition the Municipal Court, if the property was seized pursuant to a warrant issued by the Court, for the return of the property. 1. The grounds for return of the property shall be that the person 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 finder of fact shall receive evidence on any issue of fact necessary to the decision of the petition. If the finder of fact determines, by a preponderance of the evidence, in favor of the taxpayer or other petitioner, the property shall be returned. Sec. 21-07-7. Status of Tax Due in Bankruptcy and Receivership. Whenever the business or property of any taxpayer is subject to receivership, bankruptcy, or assignment for the benefit of creditors, or distrained for property taxes, the total tax liability shall be a prior and preferred lien against all the property of the taxpayer. No sheriff, receiver, assignee, nor other officer shall sell the property of any such taxpayer under process or order of any court, without first ascertaining from the Finance Director the amount of the total tax liability. The officer shall pay any total tax liability before making payment to any judgment creditor or other claimants. Sec. 21-07-8. Violations, Sununons and Complaint; Penalty. (A) It shall be a violation of this Chapter to fail to perform any applicable affirmative duty specified in this Chapter including, but not limited to: 1. The failure of any person engaged in business in the City to obtain a sales tax license; 2. The failure of any taxpayer to file a timely return or to make timely payment of any total tax liability; 3. The failure of any resident individual or business to comply with the registration requirements for automotive vehicles; 4. The making of any false or fraudulent statement by any person in any return, claim for refund, or hearing; or, 5. The evasion of collection of any tax by any person or the aiding or abetting of any other person in an attempt to evade the timely payment of tax due. (B) The Finance Director may direct the issuance of a complaint and summons to appear before the Municipal Court of the City to any person who the Finance 35 Director reasonably believes has violated any portion of this Chapter or of the rules and regulations promulgated by the Finance Director to enforce this Chapter. (C) Violations of this Chapter shall be punished by a fine or imprisonment or both, as provided in Section 1-8 of this Code. Each and every twenty-four (24) hour continuation of any violation shall constitute a distinct and separate offense. Sec. 21-07-9. Statute of Limitations. 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: (A) REFUNDS: 1. Any claim for refund for disputed total tax liability shall be submitted to the City on before sixty (60) days from the date of such purchase. 2. 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. 3. Any other claim for refund shall be filed on or before three years after the date such overpayment was paid to the City. (B) ASSESSMENTS: No Notice of Assessment shall be issued more than three years after: 1. The due date of such total tax liability; or, 2. For a construction project which requires a City building permit, tile date the final Certificate of Occupancy was issued for such project; or, 3. For a construction project not requiring a City building permit, the date of completion of the project. (C) LIENS: No Notice of Lien shall be issued more than three years after the due date of the total tax liability. 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. (D) RETURNS: 1. When a taxpayer fails or refuses to file a return, the total tax liability ;nay be assessed and collected at any time. 2. In the case of a false or fraudulent return filed with intent to evade tax, 36 the total tax liability may be assessed, or proceedings for the collection of such total tax liability may be begun at any time. (E) PROTESTS: No protest of a Notice of Assessment or Denial of a Claim for Refund shall be valid if submitted to the Finance Director in other than written form or after the period allowed in this Chapter. (F) LIMITATION PERIOD; EXTENSION: The limitation period may be extended before its expiration. 1. The taxpayer and the Finm~ce Director may agree in writing to extend the period. 2. If the City provides written notice to the taxpayer prior to the expiration of the period of limitation that the latter's records will be audited pursuant to this Chapter, such period of limitation shall be extended for the audit ~ period until thirty (30) days after the date of the Notice of Assessment or Overpayment issued as a result of such audit. "Audit Period" includes all reporting periods with due dates which fall within the thirty-six (36) month period preceding the date of the notice of audit, or, if a City building permit is required, the period between the issuance of such building permit and the issuance of a final Certificate of Occupancy. Sec. 21-08 through 21-09. Reserved. ARTICLE II. SALES TAX DIVISION 1. GENERAL Sec. 21-10-1. Legislative Intent. H.B. 1007, enacted by the Fifty-fifth Colorado General Assembly and approved by the Governor on June 6, 1985, sets forth procedures for the collection of sales and use taxes by home rule cities. This Chapter contains provisions which are consistent with some of those set forth in H.B. 1007. The City Council finds that Article XX of the Colorado Constitution grants plenary power to home rule cities to levy and collect taxes within the City limits. The City Council does not endorse restrictions on the taxing power of home rule cities. Thus it is the intent of the City Council in enacting provisions consistent with H.B. 1007 to assist the business community, but not in any way to prejudice the City's right to fully exercise its Constitutional authority to levy and collect taxes within its boundaries. Sec. 21-10-2. Sales Tax Licenses; Application and Content. A) It shall be unlawful for any person to engage in the business of selling at retail within the City without having first obtained a City of Aspen sales tax license. 37 (B) Persons for whom a license is required shall first submit to the Finance DireCtor an application stating the name and address of the person requesting such license; the name of the business being licensed and the character thereof; the location, including the street number of such business; and such other information as may be required by the Finance Director. (C) Licenses which are granted shall be issued without fee by the Finance Director. (D) Licenses shall be in effect through the end of the calendar year for which they were issued; they shall be conditionally renewed upon renewal of the City of Aspen Business License and the attendant payment of any and all appropriate City of Aspen Business Occupation Taxes and City of Aspen Sales Taxes. (E) Each sales tax license shall be numbered and shall show the name, location, mailing address, and character of business of the licensee and shall be posted in a conspicuous place at the business location for which it is issued. (F) No sales tax license shall be transferable. After any sale of a business, the new owner shall apply for a new license. Sec. 21-10-3. Sales Tax Licenses; Cancellatlon and Revocation. (A) CANCELLATION: The Finance Director may cancel any license: 1. Upon receipt of a written notice that the taxpayer is no longer engaged in business in the City; 2. Upon the taxpayer's failure to respond to three consecutive notices of delinquency. The Finance Director shall give notice to the taxpayer that the license has been canceled. (B) REVOCATION: The Finance Director may, after a reasonable notice and after a full hearing, issue a finding and order to revoke the license of any person found to halve violated any provision of this Chapter. (C) APPEAL: Any person may appeal a finding and order revoking their license to the Pitkin County District Court, pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedures. (D) No taxpayer shall continue to engage in business in the City after their license has been canceled or revoked. Sec. 21-10-4. Transient/Temporary Vendors. (A) Transient/Temporary Vendors are subject to and shall comply with the requirements of the City of Aspen Business License and shall pay the appropriate 38 City of Aspen Business Occupation Taxes as provided for elsewhere in this Chapter, in addition to obtaining a City of Aspen Sales Tax License as provided in Section 21-10-2. (1) This provision may not be relieved by a temporary association with another licensed entity unless that entity is a charitable organization based within the City which wishes to sponsor the Transient/Temporary Vendor and thereby exempt the vendor from the provisions of this section for sales which are infrequently conducted and for which the charitable organization collects sales taxes due in accordance with the provisions of this Chapter. (2) Issuance of a license under this Chapter does not in any way relieve a Transient/Temporary Vendor from responsibility for obtaining permission from respective property owners to set up displays and sell goods on private property. Nor does it relieve such a vendor from paying required fees to charitable organizations which are conducting a special event when the vendor wishes to conduct sales in association with that event. (3) Transient/Temporary Vendors will not be issued a sales tax license to sell unless application is received in the Finance Department at least twenty- four (24) hours in advance of selling in the City; the issuance of a sales tax license by the City does not relieve the applicant from any of the requirements of the City of Aspen Business License and the City of Aspen Business Occupation Tax; the review process required by the City prior to issuing a Business License will require a longer period of time than that required to issue a Sales Tax License. (B) Any charitable organization which organizes or sponsors an event where Transient/Temporary Vendors are expected to conduct sales, as provided in Section 21-10-4(A)(1), shall be required to hand out to all participating vendors a packet of information furnished by the City which shall inform said vendors of requirements and procedures to be met before sales in the City may be conducted. (C) Tax Deposit Required. Except as provided in Section 21-10-5, herein, or unless waived or reduced by the Finance Director, transient/temporary vendors shall deposit with the Finance Director a minimum of one hundred dollar ($100.00), or such greater amount as the Finance Director may direct. The deposit shall be in cash or equivalent acceptable to the Finance Director which can be applied toward any City imposed retail sales tax due on sales within the City limits. Tax returns reflecting actual tax due must be completed within ten (10) days from the final date of sale. In no event shall the vendor be relieved of his obligation to remit sales tax due under this Chapter. The vendor may apply the deposit toward any tax owed. In the event that a signed return is not received by the Finance Director within ten (10) days from the final date of sale, the vendor shall waive the right to apply the deposit and the deposit shall become non-refundable. 39 Sec. 21-10-5. Sales By Charitable Organizations. Charitable organizations making taxable sales or performing taxable services as defined in this Chapter shall collect sales taxes and consumers shall pay sales taxes on such sales or services, subject to the conditions set forth at Sections 21-10-10(A)(7) and (8). Sec. 21-10-6. Rate; Imposition and Collection; D~stribution. (A) SALES TAX: There is hereby levied a tax or excise upon all sales of tangible personal property and services specified in Section 21-10-9 at a rate of one and seven tenths of a percent (1.70%) for all transactions consummated or contracts entered into on or after July 1, 1990, but prior to June 30, 2000. (B) IMPOSITION AND COLLECTION: The tax specified in this Section is imposed upon the purchaser. Any seller engaged in business in the City shall collect the tax and remit it to the City pursuant to the schedule set forth in this Chapter. (C) D~STRIBUTION: The distribution of all retail sales taxes shall be in accordance with the following: 1. The City shall pay for all costs of administration and collection of sales taxes levied in accordance with this Chapter from all sources of revenue. 2. Sales tax receipts derived prior to 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 "Land Acquisition Including Open Space and Capital Improvement Fund", and expended by the City Council for the acquisition of real property including open space or construction of capital improvements incurred for such land acquisition including open space or construction of capital improvements, food tax refunds payable by the City, and for such expenditures as may be necessary to protect the real properties including open space acquired or the capital improvements constructed from any and all, threatened or actual, damages, loss, destruction or impairment from any cause or occurrences. 3. 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 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 40 purposes, and for the payment of sales tax revenue bonds issued by the City; and 4. Sales tax receipts derived from the one quarter of one percent (0.25%) additional sales tax levied pursuant to Ordinance No. 24-A, Series of 1988, shall be set aside in a separate fund designated as the "City of Aspen Parking Improvement Fund", and shall be expended by the City Council solely for the payment of services, facilities, and programs with regard to the construction of a parking facility on the Rio Grande property, paving a new street to connect Mill and Spring Streets, paving for the surface parking which remains outside of the parking facility on the site, all necessary incidental appurtenant facilities, structures, furnishings and equipment, land acquisition, general operating purposes, payment of indebtedness incurred in connection therewith, reserves and for the expenditures necessary to protect any such property against loss or damage or destruction. 5. Sales tax receipts derived from the forty five one hundredth of one percent (0.45 %) additional sales tax levied pursuant to Ordinance No. 81, Series of 1990, shall be set aside in a separate fund designated as the "Affordable Housing/Day Care Fund", and shall be expended by the City Council for the purpose of creating public or private affordable housing and day care opportunities within Aspen and Pitkin 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. 6. All sales taxes collected by and paid by Pitkin County, Colorado, to the City of Aspen in accordance with Ordinance No. 25, Series of 1985, shall be spent solely for those purposes set forth at Section 1 of said Ordinance. (D) The taxes imposed in this Chapter shall be in addition to all other taxes imposed by law. Sec. 21-10-7. Tax Schedule. A. The tax imposed by this Chapter shall be payable on each ten dollar ($10.00) increment in accordance with the following schedule: Price Tax $ .01 including $ .26 No Tax $ .27 including $ .85 1 Cent $ .86 including $ 1.44 2 Cents 41 $ 1.45 including $ 2.02 3 Cents $ 2.03 including $ 2.61 4 Cents $ 2.62 including $ 3.20 5 Cents $ 3.21 including $ 3.79 6 Cents $ 3.80 including $ 4.38 7 Cents $ 4.39 including $ 4.97 8 Cents $ 4.98 including $ 5.55 9 Cents $ 5.56 including $ 6.14 10 Cents $ 6.15 including $ 6.74 11 Cents $ 6.75 including $ 7.32 12 Cents $ 7.33 including $ 7.91 13 Cents $ 7.92 including $ 8.49 14 Cents $ 8.50 including $ 9.08 15 Cents $ 9.09 including $ 9.67 16 Cents $ 9.68 including $10.00 17 Cents When the price exceeds ten dollars ($10.00), the tax shall be seventeen cents ($. 17) on each ten dollar ($10.00) increment of the price, plus the tax shown in the above schedule for the applicable fractional part of a ten dollar ($10.00) increment of each price. B. Use of the schedule set forth in this Section shall not result in computation of a tax liability that is less than the amount which equals taxable sales multiplied by the specified rate. Sec. 21-10-8. Map or Location Guide of City Boundaries. The Finance Department shall make available to any requesting vendor a map or location guide showing the boundaries of the City. The requesting vendor may rely on such map or location guide and any update thereof available to such vendor in determining whether to collect a sales tax. No penalty shall be imposed or action for deficiency maintained against a vendor who in good faith complies with the most recent map or location guide available to such vendor. Sec. 21-10-9. Transactions and Items Subject to Tax. (A) The tax levied by Section 21-10-7 shall apply to the prices of the following: 1. Tangible personal property that is sold, leased, or rented, whether or not such property has been included in a previous taxable transaction. 2. Installation in the City of equipment required to receive or transmit telecommunication service. 3. Meals sold to the public or to employees. 4. All sales of food, including but not limited to: 42 (a) The amount paid for food or drink served or furnished in or by restaurants, cafes, lunch counters, cafeterias, hotels, drugstores, social clubs, nightclubs, cabarets, resorts, snack bars, caterers, carry-out shops, delicatessens, grocery stores, counters, 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. (b) The total amount paid as a cover charge or for admission roan establishment that charges a single price for admission and food service. (c) The amount paid for sales of meals by any of the employees of the aforementioned establishments, whether at full price or at reduced price, shall be included herein. 5. Gas, electricity, steam, coal, wood, fuel oil, or coke furnished for domestic, commercial, or industrial consumption. 6. Pay, cable, or subscription television, including charges for service, installation, connection, or other similar charge. 7. Automotive vehicles rented in the sold, lease, City. or 8. Services of an operator when furnished with the lease or rental of tangible personal property if such services are not separately stated. 9. Coin operated devices that dispense tangible personal property. 10. Rentals of storage space within the City. 11. Lodging services. 12. The rental fee, price, or other consideration paid for the rental of any tangible personal property within the boundaries of the City. Rentals shall include, but not be limited to, ski rentals, car rentals, bicycle rentals, skate rentals, other sporting goods rentals, VCR rentals, and video cassette tape rentals. Such rentals, for all purposes of this chapter, shall be deemed to be "sales" as defined in Section 21-01-1. Sec. 21-10-10. Exemptions From Sales Tax. (A) The tax levied by Section 21-10-7 shall not apply to the following: 1. Automotive vehicles sold to nonresidents of the City for registration outside the City. 43 2. Tangible personal property that is to be used, stored, or consumed outside the City by persons who reside or businesses located outside the City when the property is to be delivered to the purchaser outside the City by mail; by common, contract, or commercial cartier that is employed to effect delivery by the vendor; or by the vendor's conveyance. 3. Prosthetic devices and drugs dispensed in accordance with a prescription, but not including prescription drugs for animals. 4. All sales of therapeutic devices, appliances, or related accessories. 5. All sales of medical supplies. 6. Cigarettes. 7. All direct sales to charitable organizations in the conduct of their regular exempt organizational functions and activities, when billed to and paid for by the charitable organization. 8. All individual sales of $25.00 or less by charitable organizations in the conduct of events or sales to generate funds for charitable purposes; provided that the sales shall not be conducted for more than three (3) consecutive days or more than nine (9) total days in any calendar year. 9. All direct sales to the United States Government, the State of Colorado, its departments or institutions, and the political subdivisions thereof in their governmental capacities only, when billed to and paid for by the governmental entity. 10. All sales which the City is prohibited from taxing under the Constitntion or laws of the United States, or of the State of Colorado. 11. Tangible personal property sold to a public utility company or railroad doing business both inside and outside the City, for use in its business operations outside the City, even though delivery thereof is made inside the City. 12. Motor fuel upon which there has been accrued or paid either the gasoline tax or special fuel tax, required by Article 27 of Title 39, C.R.S., and which is not subject to refund. 13. All wholesale sales. 14. Tangible personal property sold to a person engaged in manufacturing or processing for sale when the product being manufactured or processed is transformed in fact by the addition of the property, and such property 44 becomes a constituent part of the finished product. 15. Commercial Packaging Materials. 16. Napkins, straws, or eating utensils sold to a retailer when the following conditions are met: (a) The property is used in the consumption of food purchased; (b) The cost of the property is included in the price of an item which is sold separately, rather than included in the price of a service; and, (c) The property is not returnable or intended for reuse. 17. Newsprint and printer's ink for use by publishers, newspapers, and commercial printers. 18. Newspapers. 19. Tangible personal property sold for rental or leasing inventory, including but not limited to coin operated devices, provided that such property is not otherwise used except for customer demonstration or display. 20. Labor sold with tangible personal property, if such labor is stated separately on the invoice from the tangible personal property sold; except that manufacturing or fabricating or other processing labor shall not be exempt. 21. Tangible personal property sold through coin-operated devices for a price of fifteen cents ($.15) or less. 22. Food purchased with Federal food stamps or with funds provided bythe special supplemental food program for women, infants, and children (42 U.S.C. §1786), from retailers who qualify as follows: (a) Retail food stores which primarily sell food for home preparation and consumption and in which one or more staple food items make up more than 50 percent of eligible food sales. These stores shall include: full-line grocery stores; convenience stores; stores which sell meat, poultry, or fish; stands which sell agricultural commodities; farmers' markets; milk routes; bread routes; day-old bread stores; bakeries which sell bread; and nonprofit cooperative ~t~, food-purchasing ventures which are properly licensed to sell food in the state and locality in which they are operating. (b) Firms whose primary business is not the sale of food for home 45 preparation and consumption, but who have recognized grocery departments in which staple foods make up more than 50 percent of eligible food sales. 23. Meals purchased with Federal food stamps or with funds provided by the special supplemental food program for women, infants, and children (42 U.S.C. Section 1786), in the following instances: (a) The meals are prepared for and served to residents of federally subsidized housing for the elderly; or are prepared for and served to persons who are sixty (60) years of age or over or who receive supplemental security income benefits, and their spouses, in senior citizens' centers, apartment buildings occupied primarily by such persons, public or private nonprofit establishments (eating or otherwise) that contract with the appropriate agency of the State to offer meals for such persons at concession prices; (b) The meals are prepared for and delivered to persons sixty (60) years of age or over and persons who are physically or mentally handicapped or otherwise so disabled that they are unable adequately to prepare ali or their meals, when such meals are prepared for and delivered to them (and their spouses) at their home by a public or private nonprofit organization or by a private establishment that contracts with the appropriate State agency to perform such services at concession prices; (c) The meals are prepared for and served to narcotics addicts or alcoholics as part of drug addiction or alcoholic treatment and rehabilitation programs; (d) The meals are prepared for and served to disabled or bIind recipients of federal financial benefits under the Social Security Act who are residents in a public or private nonprofit group living arrangement that is certified for no more than sixteen residents by the appropriate State agency or agencies under regulations issued under the Social Security Act; or, (e) The meals are prepared for and served to women and children temporarily residing in public or private nonprofit shelters for battered women and children. 24. Access Services. 25. Modified or customized computer programs, but not including pre-written computer programs. 26. Garage sales or yard sales in a residential area, not exceeding a 46 consecutive three-day period nor a total of nine (9) days per calendar year, but not including sales conducted by a professional or compensated agent of the owner of the items to be sold. 27. Sales by or on behalf of a youth group affiliated with or sponsored by a charitable organization, a governmental entity, or a school, other than a school held or conducted for private or corporate profit. 28. Lodging Services are exempt when they apply to: (a) All sales made directly to charitable organizations, in the conduct of their regular religious, charitable, or eleemosynary functions and activities, provided such sales are paid for directly to the seller by draft or warrant drawn on the funds of the exempt organization. (b) All direct sales to the United States of America, to the State of Colorado, their departments, institutions, or political subdivisions, which are acting in their governmental capacity, and to all sales to the City or its departments, provided that such sales are supported by requisition on official government purchase orders and paid for directly to the seller by draft or warrant drawn on the funds of that government entity. (c) All sales to any occupant who is a permanent resident of an hotel, apartment hotel, lodging house, motel, guest house, guest ranch, or any other place which provides sleeping rooms or facilities and who enters into or has entered into a written agreement for occupancy of a room or rooms or accommodations for a period of at least thirty (30) consecutive days. (B) The list of exemptions shall not be increased by implication or similarity. Sec. 21-10-11. h~stalhnent Sales Transactions° Whenever taxable tangible personal property is sold under a conditional sales contract whereby the seller retains title as security for all or part of the price, or whenever the seller takes a chattel mortgage on such tangible personal property to secure all or part of the price, the full price of such property shall be reported for the period in which the sale was made. No refund or credit shall be allowed to either party to the transaction in case of repossession. Sec. 21-10-12. Non-Resident Retailers. Any retailer engaged in business in the City, but not maintaining an office in the City, who sells taxable tangible personal property or taxable services may petition the Finance Director to establish an alternate method of determining tax due. If the Finance Director finds that the imposition of the tax on an individual sales basis will impose an 47 unnecessary hardship on the retailer, and if the type and occasion of sale so warrants, the Finance Director may establish such alternate method. Sec. 21-10-13. 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 taxes to the City. (A) As used herein, "Claim for Recovery" means a claim for reimbursement of sales tax paid to the wrong taxing jurisdiction. (B) When it is determined by the Director of Finance of the City that sales 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. (C) The City may make a written Claim for Recovery directly to the municipality that received a tax 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 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 vendor releasing its claim to the taxes paid to the wrong municipality, evidence to substantiate the Claim, and a request that the municipality approve or deny 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 and extension of time to investigate the Claim, and approval of such extension by the City shall not be unreasonably withheld. (D) 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. (E) 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. (F) The period subject to a Claim for Recovery shall be limited to the thirty-six (36) month period prior to the date the municipality that was wrongly paid the tax 48 receives the Claim for Recovery. Sec. 21-10-14. Administration. This Article II shall all be administered in accordance with Article I of this Chapter; Sec. 21-11 through 21-12. Reserved. DIVISION 2. FOOD SALES TAX REFUNDS Sec. 21-13-1. Food Sales Tax Returns. (A) For purposes of this Division, and the refund of food sales tax collected, the term "resident of the City of Aspen" shall mean any person who is over the age of sixteen (16) years and who has resided in the City of Aspen for the entire calendar year for which a food sales tax refund is sought. (B) Any resident of the City of Aspen, as herein defined, may, not later than April 15 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 thirty-nine dollars ($39.00) for himself and, in addition, for every person who is a member of his household, and for whom he is entitled to claim a personal exemption under and pursuant to the federal income tax laws. Any resident who is over the age of sixty-five (65) years shall be entitled to receive an additional food tax refund in the amount of thirty-nine dollars ($39.00), and any resident who is blind shall be entitled to receive an additional food tax refund in the amount of thirty-nine dollars ($39.00). (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 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 of Aspen 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 entities 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. Section 4. 49 That in order to initiate a central register of sales and use tax ordinances for municipalities that administer local sales tax collection, the Finance Director is directed to file with the Colorado Municipal League prior to the effective date of this Chapter, a copy of the City sales tax ordinance reflecting all provisions in effect on the effective date of this Chapter; and, in order to keep current the central register of sales and use tax ordinances for municipalities that administer local sales tax collection, the Finance Director is hereby directed to 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. Section 5. That failure of the City to file such ordinance or ordinance amendment pursuant to Section 4 shall not invalidate any provision of the sales tax ordinance or any amendment thereto. Section 6. That the Finance Director 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 sale and use tax officials and business officials. Said committee will meet for the purpose of discussing and seeldng resolution to sales and use tax problems which may arise. Section 7. That the City Clerk is hereby directed, pursuant to Section 39-26-113(4), C.R.S., certify to the Department of Revenue, State of Colorado, and to the County Clerk of Pitkin County, Colorado, a true copy of this ordinance. Section 8. That if any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion 50 shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions hereof. Section 9. That this ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. A public hearing on the ordinance shall be held on the // day of ~ , d/ 1992, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the ,~ day of ~ , 1992. John S.'Bennett, Mayor ATTEST: Kathryn S. koch, City Clerk 51 FINA!~LY adopted, passed and approved this //? day of John S. B t, Mayor ATTEST: Kathryn S. ~o~h, City Clerk salestax.ord 52