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HomeMy WebLinkAboutordinance.council.013-64 Series of 1964 AN OI~)INANCE TO LEVY A CITY I~ETAIL S~r.RS AND USE TAX WITHIN THE CITY OF ASPEN, COLOP~DO, [ANB-9~d~{~E-~-~R~ENE¥-~-~m } BE IT ORDAINED by the City Council of the City of Aspen: Section 1: Short Title - This Ordinance shall be known and cited as the 'City Retail Sales and Use Tax Ordinance'. Section 2: Definitions in this ordinance: 2-1. The term 'person" includes any individual, firm, partnership, joint adventure, corporation, estate or trust, or any group or combination acting as a unit and the plural as well as the singular w~mber. 2-2. The term 'City Treasurer' shall mean the City Treasurer of the City of Aspen. The term 'City Administrator' shall mean the City Administrator of the City of Aspen. The term "City Attorney' shall mean any attorney employed and directed by the City to perform any service under this Ordinance. The term 'city' shall mean the City of Aspen. 2-3. The term 'sale" or "sale and purchase" includes, installment and credit sales, and the exchange of property, as well as the sale thereof for money, every such transaction, conditional or otherwise, for a consideration, constituting a sale and also includes the sale or furnishing of electrical energy, gas, tele- phone or telegraph services taxable under the terms of this Ordinance. 294. The term "wholesaler' means a person doing a regularly organized wholesale or jobbing business, and known to the trade as suah and selling to retail merchants, jobbers, dealers, or other whole- salers for the purpose of resale. 2-5. The term ~wholesale sale' means a sale by whole- salers to retail merchants, jobbers, dealers or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale~ and the latter sales shall be deemed retail sales and subject to the provisions of this Ordinance. 2-6. The term 'retailer' or 'vendor' means a person doing a retail business, known to the trade and public as such, and selling to the user or consumer, and not for resale. 2-7. The term mretail sale' includes all sales made within the City of Aspen except wholesale sales. 2-8. The term ~business' shall include all activities engaged in or caused to be engaged in with the object of gain, benefit, or advantage direct or indirect. 2-9. The term mtaxpayer' shall mean any person obligated to account to the City Treasurer for taxes collected or to be collect- ed under the terms of this Ordinance. 2-10. The term 'tax' shall mean either the tax payable by the purchaser of a comodity or service subject to tax, or the aggregate amount of taxes due from the%~ndor of such comodities or services during the period for which he is required to report his collections, as the context may require. 2-11. The term 'tangible personal property' shall mean corporeal personal property. This shall not be construed to include newspapers as legally defined by ~9-1-2, Colorado Kevised Statutes, 1953. -2- 2-12. The term 'purchase pricem means the price to the consumer, exclusive of any direct tax imposed by the federal government, by the State of colorado, or by this Ordinance, and, in the case of all retail sales involving the exchange of property also exclusive of the fair market value of the p~operty exchanged at the t/me and place of the exchange, provided such exchanged property is to be sold thereafter in the usual course of the retailer's business. 2-13. The term 'gross taxable sales' shall mann,he total amount received in money, credits, property, excluding the fair market value of the exchanged property which is to be sold there- after in the usual course of the retailer-ts business, or other consideration valued in money from sales and purchases at retail within this state, and embraced within the provisions of this Ordinance. The taxpayer may take credit in his re~ort of gross sales for an amount equal to the sale price of the property re- turned by the l~urchaser when the full sale price thereof is re- funded whether in cash or by credit. The fair market value of any exchanged property which is to he sold thereafter in the usual course of the retailer's business, if included in the full price of a new article, shall be excluded from the gross sales. On all sales at retail, valued in money, when such sales are made un,er conditional sales contract, or under other forms of sale where the payment of the principal sum thereunder be extended over a period longer than sixty (~ days from the date of sale thereof, only such portion of the sale amount thereof may be counted for the purpose of im~osition of the tax imposed by this Ordinance as has actually been received -3- in cash by the taxpayer during the period for which the tax ~mposed by this Ordinance is due and payable. Taxes paid on gross sales represented by accounts found to be worthless and actually charged off for income tax purposes ~ay be credited upon a subsequent pay- ment of the tax herein provided, but if any such accounts are there- after collected by the taxpayer, a tax shall be paid upon the amounts so collected. 2-14. Sales to and purchases of tangible personal property by a person engaged in the business of manufacturing, compounding for sale, profit or use, any article, substance or co~odity, which tangible personal property enters into the processing of or becomes and ingredient or component part of the product or service which is manufactured, compounded or f~ished and the container, label, or the furnished shipl~k~ case thereof, shall be deemed to be wholesale sales and shall be exempt from taxation under this Ordinance. 2-15. Sales and purchases of electricity, coal, fuel oil or coke for use in processing, manufacturing, mining, refining, /rrigation, building construction, telegraph, telephone and radio comaunication, street and railroad transportation services and all industrial uses~ and newsprint and printers ink for use by publishers of newspapers and com~ercial printers shall be deemed to be wholesale sales and shall be exempt from taxation under this Ordinance. 2-16. Should a dispute arise between the purchaser and seller as to whether or not any such sale is exempt from taxation hereunder, nevertheless the seller shall collect and the purchaser -4- shall pay such tax and the seller shall thereupon issue to the purchaser a receipt, or certificate, on forms prescribed by the City Treasurer showing the ~mes of the seller and purchaser, the items purchased, the date, price, amount of tax paid, and a brief statement of the claim of exemption. The purchaser thereafter may apply to the City Treasurer for a refund of such taxes and it shall then be the duty of the City Treasurer to determine the question of exemption, subject to review by the Courts as hereinafter provided. It shall be a violation of this Ordinance for any seller to fail to collect or any purchaser to fail to pay the tax levied by this ordinance, and on sales on which exmlption is disputed. 2-17. Nhen right to continuous possession orms of any article of tangible personal property is granted under a lease or contract and such transfer of l~3ssession would be taxable if outright sale were made, such lease or contract shall be considered the sale of such~ticle and the tax shall be computed and paid by the vendor upOn the rentals paid. 2-18. A "farm auction close out sale" means a regularly advertised and conducted sale at public auction of all tangible Personal property of a farmer or rancher previously used by him in carrying on his farming or ranching operations. Unless said farmer or rancher is making or attempting to make full and final disposition at the auction sale of all property used on his farming or ranching operations and is abandoning the said operations on the premises whereon they were previously conducted, such sale shall not be deemed -5- a 'farm auction close out sale" within the meaning of this Ordinance. 2-19. The sales tax is imposed on the full purchase price of articles sold after manufacture or after having been made to order and includes the full purchase price for material used and the service performed in connection therewith, including, however, such articles as are otherwise exempted in this Ordinance. The sales price is the gross value of all materials, labor, service, and the profit thereon, included in the price charged to the user or consumer. Section 3: Licenses - Fee - Revocation. 3-1. It shall be unlawful for any person to engage in the business of selling at retail as the same is defined in this Ordinance, without first having obtained a license therefor, which license shall be granted and issued by the City Treasurer and shall be in force and effect until the 31st day of December of the year in which it is issued, unless sooner revoked. Such license shall be granted or renewed only upon application stating the name and address of the person desiring such a license, the name of such business and the location, including the street number of such business, and such other facts as the City Treasurer may require. It shall be the duty of each such licensee on or before January 1st of each year during which this ordinance remains in effect, to obtain a renewal thereof if the licensee remains in retail business or is liable to account for the tax herein provided, but nothing herein contained shall be construed to empower the City Treasurer to refuse such renewal except the revocation for cause of licensee's prior license. For each license issued a fee of Two Dollars ~{~,00) shall be paid, which fee shall accompany the application together with an additional fifty cents (50~) for -6- filing fee. A further fee of Two Dollars ($2.00) shall be paid for each year or fraction thereof for which said license is renewed, together with an additional fee of fity cents (50~) provided that only one-half (%) of said Two Dollar be charged on licenses issued after July 1st of any year. 3-2. In case business is t~ed at two or more separate places by one person a separate license for each place of business shall be required. 3-3. Each license shall be n~ered and shall show the name, residenC~ and place and character of business of the licensee and shall be posted in a conspicuous place in the place of business for which it is issued. No license shall be transferable. 3-4. The City A~ministrator on a reasonable notice and after full hearing, may revoke the license of any person found by the City Administrator to have violated any provision of this O~dinance. 3-5. ing the license for filing fee~ ($2.00) fee shall Any finding and order of the City A~ministrator revok- of any person~ shall be subject to review and re-hearing by the City Council. Any decision of such Council revoking the license of any person shall be subject to review by the District Court of Pitkin County, Colorado, pursuant to Rule 106~.)(4), Rules of civil Procedure, Colorado. 3-6. No license shall be required for any person engaged exclusively in the business of selling comodities'which are exempt from taxation under this Ordinance. Section 42 Property and Services Taxed. There is hereby levied and there shall be collected and paid a tax in the amounts stated in Section 6 hereof as follows= -7- 4=1. On the purchase price paid or charged upon all sales and purchases of tangible personal property at retail. 4-2. In the case of retail sales involving the exchange of property, on the purchase price paid or charged, including the fair market value of the property exchanged at the time and place of the exchange, excluding, however, from the consideration or purchase price, the fair market value of the exchanged property, provided such exchanged property is to be sold thereafter the retailer ~s business. 4-3. Upon telephone services for in the usual course of all local calls originat- ing in the city on telephone instruments located in the city. 4-4. For gas and electric service, whether furnished by municipal, public or private corporations or enterprises, for gas and electricity furnished and sold for domestic and c~rcial con- sumption and not for resale. 4-5. Upon the ~aount paid for all meals and cover charges, if any, furnished in any restaurant, eating house, hotel, drug store, club, resort or other such place at which meals or food are regularly sold to the public. Section 5: Vendor Liable for Tax - Every retail~r (also herein called 'vendor') shall, irrespective of the provisions of Section 6, be liable and responsible for the payment of an amount equivalent to one per cent (1%) of all sales made by h/m of con~aodities or services as specified in Section 4, and shall before the 15th day of each month make a return to the City Treasurer for the preceding calendar month and remit an amount equivalent to said one per cent (1%) of such sales to the City Treasurer, less five per cent (5%) -8- of such tax to cover the vendor&s remittance of said tax. authorized agent, shall expense in the collection and Such returns of the taxpayer, or his duly contain such information and be made in such ma=,er and upon such forms as the City Treasurer may prescribe. The City Treasurer may extend the time for making returns and paying the taxes due under such reasonable rules and regulations az he may pre- scribe, but no such extension shall be for a greater period than is provided for in Section 9. The burden of proving that any retailer iz exempt from collecting the tax on any goods sold and paying the same to the City Treasurer, or from making such returns, shall be on the retailer or vendor under such rmonable require~ents of proof as the said City Treasurer may prescribe. Section 6= Schedule of Sales Tax - There is hereby imposed a tax upon all sales of con~odities and services specified in Section 4 in accordance with the following schedule= 6-1. On sales amounting to nineteen cents (196) to and inc~uding One and 18/100 Dollar ($1.18), a tax of one cent (16). 6-2. On sales a~ount/~gOne and 19/100 Dollar ($1.19) to and including Two and 18/100 Dollars ($2.18), a tax of two cents 6-3. On sales amounting to Two and 19/100 Dollars ($2.19) to and including Three and 18/100 Dollars ($3.18), a tax of three centz (36). 6-4. On all higher sales one cent (16) shall be added in each bracket of One Dollar ($1.00) of additional selling price. -9- 6-5. Retailers shall add the tax imposed hereby~ or the average equiv~lent thereof, to the sale ~rice or charge, sh~wing such tax as a separate and distinct item, and when added'such tax shall constitute a part of such price or cha~gu and shall be a ~ebt from the consumer or user to the retailer until paid and shall be recoverable at law in the same manner as other debts. The retailer shall be entitled as collecting agent of the City to apply and credit the amount of his collections against the one per cent (1%) rate to be paid by him under the provisions of Section 5, remitting any excess of collections over said one per cent (1%) less the five per cent (5%) collection expense allowance, to the City Treasurer in the retailerJs next monthly sales tax return. Section 7: Rules and Regulations - To provide uniform methc~ of adding the tax, or the average equivalent thereof, to ~e selling price, it shall be the duty of the City Treasurer with the approval of the City Aaministrator to formulate an~ promulgate after hearing appropriate rules an~ regulations to effectuate the purposes of this Ordinance. Section 8~ Tax Cannot be Absorbed - It shall be unlawful for any retailer to a~vertise or hold out or state to the public or to any consumer, directly or indirectly, that the tax or any part thereof imposed by this Ordinance will be assumed or absorbed by the retailer or that it will not be added to the selling price of the property sold, or if added that or any part thereof will be refunde~. Any person violating any provision of this Ordinance shall be subject to the penalties herein provided. -10- Section 9~ Reports of Vendor - If the accounting ~ethods regularly employed by t~e Vendor in the transaction of his business, or other conditions are such that reports of sale made on a calendar month basis will impose unnecessary hardship, the City Treasurer, upon written request of the vendor, may accept reports at such intervals as will in his opinion better suit the convenience of the taxpayer and will not jeopardize the collection of the tax~ provided, however, the City Treasurer may b~ rule permit taxpayers whose monthly tax collected is less than Ten Dollars ($10.00) to make returns and pay taxes at intervals not greater than every three (3)months. Section 10.- Retailer - Multiple Locations. A retailer doing business in two or more places or locations, taxable hereunder, may file one (1) return covering all such business activities engaged in within the City. Section llz Credit Sales. Whenever an article is sold under a conditional sales contract whereby the seller retains title as security for all or part of the purchase price, or whenever the seller takes a chattel mortgage on the article to secure all or part of the purchase price, the total tax based on the total selling price shall become immediately due and payable. This tax shall be charged and collected by the Seller. No refund or credit shall be allowed to either party to the transaction in case of repossession. Section 12~ Excess Tax - Remittance. If any vendor during the reporting period shall collect -11- as a tax an amount in excess of one per cent (1~) of his total taxable sales, he shall remit to the City Treasurer the full net amount of the tax herein l~posed and show such excess. The retention by the retailer or vendor of any excess of tax collections over the one per cent (1%) of the total taxable sales of such retailer or vendor, or the inten- tional failure to remit punctually to the City Treasurer the full amount required to be remitted by the provisions of this Ordinance, is hereby declared to be a violation of this ordinance. Section 1~: Items Exempt from Tax. There shall be exempt from taxation under the provisions of this Ordinance the following~ 13~1. All sales to the United States Government, to the State of Colorado, its departments and institutions, and the political subdivisions thereof (including the City of Aspen), in their governmental capacities only. 13-2. Ail sales made to religious, charitable and eleemosynary corporations, in the conduct of the regular religious, char~able or eleemosynary functions and activities. 13-3. All sales which the City of Aspen is prohibited from taxing under the constitution or laws of the United States or the State of Colorado or the charter or ordinances of the City of Aspen. 13-4. Ail sales of cigarettes~ larovided, however, that this exemption in no way or manner affects the present city tax on cigarettes or any future tax on cigarettes. 13-5. All sales of fermented ~alt beverages, malt, vinous, or spirituous liquors. -12- 13.6. All sales of motor fuel upon which there has accrued or has been paid the motor fuel tax prescribed by the Colorado Motor Fuel Tax of 1933 and Amen~h~ents thereto. 13-7. The term 'sale' or 'sales at, purchases', as used in this Ordinance, shall not include the transaction or furnishing rooms or accomodations by any person to a person or persons who for a consideration~ uses, possesses, or has the right to use or possess any room or rooms in a hotel, apartment hotel, lodging house, motor hotel, guest house, guest ranch, mobile homes, auto camps, trailer courts and parks, under any concession, permit, right of access, license to use or other agreement, or otherwise. Section 14~ Disputes and Refunds. 14-1. A refund shall be made, or a credit allowed, for the tax paid under dispute by any purchaser who has an exemption as in this Ordinance provided. Such refund shall be made by the City Treasurer after compliance with the following conditions precedent~ applications for refund must be made within sixty (60) days after the purchase of the goods whereon an exemption is claimed~ and must be supported by the Affidavit of thepurchaser accompanied by the original paid invoice or sales receipt and certificate issued by the Seller~ and be made upon such forms as shall be prescribed and which forms shall contain such information as said City Treasurer shall prescribe. Upon receipt of such application the City Treasurer shall examine the same with all due speed and shall give notice to the applicant by order in writing of his decision thereon. Aggrieved applicants, within ten (10) days after such ~ecision is mailed to -13- them may petition the City Treasurer for a hearing on the claim in the manner ~rovided in Sections 25 and 26. The right of any person to a refund under this Section shall not be assignable and such applica- tion for refund must be made by the same person who purchased the goods and paid the tax thereon as shown in the invoice of the sale thereof. Any applicant for refund under the provisions of this Section, or any other person, who shall make any false statement in connection with an application for a refund of any taxes shall be guilty of a violation of this Ordinance and upon =onviction thereof shall be punished by a fine of not more than Three Hundred and no/100 Dollars ($300.00) or by imprisonment for not more than ninety (90) days, or by both such fine and imprisonment. 14-2. If any person be convicted under the provisions of this Section, such conviction shall be prima facie evidence that all refunds received by such person during the current year were obtained unlawfully and the City Treasurer is hereby empowered and directed to bring appropriate action for recovery of such refunds. A brief statement of the above mentioned penalties shall be printed on each application fDrm for refund. 14-3. The burden of proving that sales, services and comuodities, on which tax refunds are claimed, are exempt from taxation under this Ordinance, or were not at retail, shall be on the one making such claim under such reasonable requirements of proof as the City Treasurer may prescribe. Should the applicant for refund be aggrieved at the final decision of the City Treasurer, he may proceed to have the same reviewed by the Courts in the manner provided for review of other decisions of the City Treasurer as provided in Section 26= except that such review shall be in the District Court of Pitkin County, colorado. Duties of the City ~enBurer -14- herein provided may be performed by a duly qualified deputy. 14-4. All sales and purchasei of meat cattle, sheep, lambs, swine and goats~ all sales and purchases of mares and stallions for breeding purposes and all farm auction close out sales shall be exempt from taxation under this ordinance and the storage, use or consumption of such property shall be exempt from taxation under this Ordinance. 14-5. Ail sales and purchases of feed for livestock or poultry, all sales and purchases of seeds, and all sales and purchases of orchard trees shall be exempt from taxation and the storage, use or consumption of such property shall be exempt from taxation under this Ordinance. Section 15= Return Confidential. 15-1. Except in accordance with judicial order or as otherwise herein provided, the City Treasurer, his agents, clerks and employees shall not divulge any information gained from any return filed under the provisions of this O~dinance. 15-2. The officials charged with the custody of such 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 Treasurer in an action under the provisions of this Ordinance to which he is a party, or on behalf of any party to an action or proceeding under the provisions of this Ordinance or to punish a violator thereof when the report of facts shown by such report is directly involved in such action or -15- proceeding, in either of which events the court may require the production of, and may admit in evidence, so much of said returns, of the facts shown thereby, as are pertinent to the action or proceeding and no more. or 15-3. Nothing contained in this section shall be construed to prohibit the delivery to a person, or his duly authorized represent- ative, of a copy of any return or report filed in connection with his tax, nor to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof, nor to prohibit the inspection by the City Attorney of the City, or any other legal representative of the City, of the report or return of any person who shall bring action to set aside or review the tax based thereon or against whom an action or proceeding is contemplated or has been instituted under this O~dinance. 15-4. Reports and returns shall be preserved for three (3) years and thereafter untilthe City Treasurer, with approval of the City Administrator, orders them destroyed. 15-5. Any city officer or employee, or any member of the office of, or officer, or employee of the City Treasurer, who shall divulge any information classified hereunder as confidential, in any manner, except in accordance with proper Judicial order, or other- wise as provided by law, shall be guilty of a violation of this Ordinance. Section 16= Interest on Deficiency. As soon as practicable after the return is filed, the City Treasurer shall examine it~ if it then appears that the correct -16- a~ount of tax to be remitted is greater or less than that shown in the return to be due,the tax shall be re-computed. If the amount paid exceeds that which is due, the excess shall be refunded or credited against any subsequent remittance from the same persons. If the amount paid is less than the amount due, the difference, together with interest thereon at the rate of one-half of one percent (% of 1%) per month from the time the return was due, shall be paid by the vendor ten (10) days after written notice and demand to him from the City Treasurer. Section 17: Deficiency Due to Negligence. If any part of the deficiency is due to negligence or intentional disregard of authorized rules and regulations with knowledge thereof, but without intent to defraud, there shall be added ten per cent (10%) of the total amount of the deficiency~ and interest in such cases shall be collected at the rate Of one per cent (1%) per month on the amount of the deficiency from the time the return was due~ from the person required to file the return, which interest and addition shall become due and payable ten (10) days after written notice an~ demand to him by the City Treasurer. If any part of the deficiency is due to ~'~fraud with the intent to evade the t~x, then there shall be added fity per cent (50%) of.the total amount of the deficiency and in such case, the ~hole amount of the tax unpaid, including the additions, shall become due and payable ten (10) days after written notice and demand by the City Treasurer and an additional one per cent (1%) per month on said amount shall be added from the date the return was due until paid. -17- Section 18: Investigations and Hearings. For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due ~ from any person, the City Treasurer or his duly authorised deputies, may hold investigations and hearings concerning any matters covered by this Ordinance, and may examine any relevant books, papers, records, or memoranda of any such person and may require the attendance of such person, or any officer or employee of such person, or of any person having knowledge of such sales, and may take testimony and require proof for his information. The City Treasurer and his duly to ac~uinister oaths to such authorized deputies shall have power persons. Section 19: Subpoena for Witnesses. All subpoenas issued under the terms of this Ordinance may be served by any person of full age. The fees of witnesses for attendance and trial shall be the same as the fees of witnesses before the District Court, such fees to be paid when the witness is excused from further attendance. When the witness is subpoenaed at the instance of the City Treasurer, such fees shall be paid in the same manner as other expenses of the City Treasurer under the terms of this Ordinance, and when a witness is subpoenaed at the instance of any party to such proceeding, the City Treasurer may requi~e that the cost of service of the subpoena and the fee of the witness be borne by the party at whose instance the witness such case, the City Treasurer, in his discretion, deposit to cover the cost of such service and witness fees. is sumoned. In may require a A -18- subpoena issued as aforesaid shall be served in the same manner as a subpoena issued out of a Court of record. Section 20: Court to Order Attendance. The District Court of the Ninth Judicial District of the State of Colorado, or any Judge thereof, either in term time or vacation, upon the application of the City Treasurer, may compel the attendance of witnesses, the production of books, papers, records or memoranda and the giving of testimony before the City ~reaSu~er or any z~mber of his duly authorized depUties, by an attachment for contempt or otherwise, in the same manner as production of evidence may be compelled before said Court. Section 21: Depositions. The City Treasurer or any party in an investigation or hearing before the city Treasurer may insist the depositions of witnesses residing within or without the State to be taken in the manner prescribed by law for like depositions in civil actions in Courts of this State and to that end compel the attendance of witnesses and the production of books, papers, records or memoranda. Section 22: Record of Sales. It shall be the duty of every person engaged or continuing in business, in this city, for the transaction of which a license is requ/red under this Ordinance, to keep and preserve suitable records of all sales made by him and such other books or accounts as may be necessary to determine the amount of tax for the collection of which he is liable. It shall be the duty of every person to keep and pre- serve for a period of three (3) years all invoices of goods and mer- chandise purchased for resale and all such books, invoices and other records shallbe open for examination at any t/me by the City Treasurer -19- or his duly authorized agent. Section 23~ Tax Lien. 23-1. The tax /reposed by this Ordinance shall be a first and prior lien upon the goods and business f~xtures of or used by any retailer under lease, title, retaining contract or other contract arrangement, excepting stock of goods sold or for sale in the ordinary course of business, and shall take precedence on all such property over other liens or claims of whatsoever kind or nature. Any retailer who shall sell out his business of stock or goods, or shall quit business, shall be required t~make out the return as provided in this Ordinance, within ten (10) days after the date he sold his business or stock of goods, or quit business, and his successor in business shall be required to withhold sufficient of th~purchase money to cover the amount of said taxes due and unpaid until such t/me as the former owner the City Treasurer showing that the certificate that no taxes are due. shall produce a receipt from taxes have been paid, or a If t]~purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided and the taxes shall be due and unpaid after the ten (10) day period allowed, he, as well as the vendor, shall be personally liable for the payment of the taxes unpaid by the former owner. Likewise, anyone who takes any ~ock of goods or business fixtures of or used by any retailer under lease, title retaining contract or other contract a~'~angement, by purchase, foreclosure -20- sale, or otherwise, takes same subject to the li~ for any delinquent sales tax owed by such merchant, and shall be liable for the payment of all delinquent sales taxes of such prior owner, not, howeverw exceeding the value of property so taken or so acquired. 23-2. Whenever the business or property of any taxpayer subject to this Ordinance shall be placed in receivership, bankruptcy, or assignment for the benefit of creditors, or seized under distraint for property taxes, all taxes, penalties and interest imposed by this Ordinance and for which said retailer ia in any way liable under the terms of this Ordinance shall be a prior and preferred claim ag&inet all the property of said taxpayer, except as to premexisting claims or liens of a bonafid~ mortgagee, pledgee, judgment creditor or purchaser whose rights shall have attached prior to the filing of the notice as provided in Section 24 on the property of the tax- payer, other than the goods, stock in trade and business fixtures of such taxpayer, and no sher£ffw lessor, assignee, or other officer shall sell the property of any person subject to this Ordinance under process or order of any Court, without first ascertaining from the ~ City Treasurer, the amount of any taxes due and payable under this Ordinance, and if there be any such taxes due, owing or unpaid, it shall be the duty of such officer to pay the amount of said taxes out of the proceeds of said sale before making any judgment creditor or other claims of whatsoever kind or nature, except the costs of the proceedings and other pre-existing claims or liens as above provided. For the purposes of this section the term 'taxpayer' -21- shall include 'retailer'. , Section 24: Recovery of Taxes, Penalties and Interest. 24-1. Ail sums of money paid by the purchaser to the retailer as taxes /reposed by this Ordinance shall be and remain public money, the property of the City of As~en, in the hands of such retailer and he shall hold the same in trust for the sole use and benefit of the City until paid to the City Treasurer as herein pro- vided, and for failure to pay the same to the City Treasurer, such retailer ~ shall be punished for a violation hereof. 24-2. If any ~erson neglects or refuses to make a return in payment of the tax as required by this Ordinance the City Treasurer shall make an est/mate, based on such information as may be avail- able of the amount of taxes due for the~eriod or ~eriods f~ which the taxpayer is delinquent~ and upon the basis of such estimated a~ount, compute and assess in addition thereto, a ~enalty equal to ten (10) per cent thereof, together with interest on such delinquent taxes at the rate of one (1) per cent per month from the date when due. Promptly thereafter, the City Treasurer shall give to the delinquent taxpayer written notice of such est/mated taxes, penalty and interest, which notice must be served personally or by registered or certified mail. Such est/mate shall thereupon become an assess- ment, and such assessment shall be final and due and payable from the taxpayer to the City Treasurer ten (10) days from the date of service of the notice or the date of mailing by registered or certified mail~ provided however, that within said ten (10) day period such delinquent taxpayer may petition t~City Treasurer for -22- a revision or modification of such assessment, and shall, within such ten (10) d~period, furnish the City Treasurer with the facts and correct figures showing the correct amount of such taxes. Such petition shall be in writing, and the shall be either in writing or orally, oath of said taxpayer. Thereupon the facts and figures submitted and shall be given under the City Treasurer shall modify such assessment in accordance with the facts he deems correct. Such assessment shall be considered the final order of the City Treasurer, and may be reviewed under Rule 106(a)(4) of the Colorado Rules of Civil Procedure as provided in this Ordinance~ provided, that the taxpayer gives written notice to the City Tr~surer of such intention within five (5) days after receipt of the final order of assessment. 24-3. If any taxes, penalty or interest imposed by this O~dinance and shown due by returns filed by the taxpayer or as shown by assessments duly made as provided herein, are not paid within five (5) days after the same are due, the City Treasurer shall issue a notice, setting forth the name of the taxpayer,the amount of the tax, penalties and interest, the date of the accrual thereof, and that the City claims a first and prior lien therefor on the real and tangible personal property of the taxpayer except as to pre- existing claims or liens of a bona fide mortgagee, pledgee, Judgment creditor or purchaser whose rights shall have attached prior to the filing of the notice as herein provided on property of the taxpayer, other than the goods, stock in trade, and business fixtures of such taxpayer. Said notice shall be on forms prepared -23- by the C~ty Treasurer and shall be verified by hi~ or his duly qualified deputy or any duly ~aalified agent of the City Treasurer, whoSe duties are the collection of such tax, and may be filed in the office of the Clerk and l~ecorder of any County in this State in which the taxpayer owns real or tangible personal property, and the filing of such notice shall create such lien on such property in that County and constitute a notice thereof. After said notice has been filed, or concurrently therewith, or at any time when taxes due are unpaid, whether such notice be filed or rot, the City Treasurer may issue a warrant directed to any duly authorized revenue collector or to the Sheriff of any County in this State co~anding him to levy upon~ seize and sell sufficient of the real and personal property of the tax debtor found within his county for the payment of the a~ount due, together with interest, penalties and costs, as now or hereafter provided by Ordinance, subject to valid pre-existing claims or liens as above provided. 24-4. Such revenue collector or Sheriff shall forthwith levy upon sufficient of the property of the taxpayer, or any property of the taxpayer, or any property used by such taxpayer in conducting his retail business, and said property so levied upon shall be sold in all respects, with like effect and in the same manner as is pres- cribed by law in respect to executions against property upon judgment of a Court of record, and the remedies of garnishments shall apply. The Sheriff shall be entitled to such fees in executing such warrant as are allowed by law for similar services. -24- 24-5. Any lien for taxes as shown on the records of the county clerks and recorders as herein provided shall, upon the pay- ment of all taxes, penalties and interest covered thereby, be released by the City Treasurer in the same manner as mortgages or judgments are released. 24-6. The City Treasurer may also treat any such taxes, penalties or interest due and unpaid as a debt due the City from the vendor. In case of failure to pay the tax, or any portion thereof, or any penalty or interest thereon when due, the City Treasurer may recover at law the amount of such taxes, penalties and interest in any Justice, County or District Court of the County wherein the taxpayer resides or has his principal place of business having jurisdiction of the amounts sought to be collected. The return of the taxpayer or the assessment made by the City Treasurer as herein provided, shall be prima facie proof of the amount due. Sucl~ actions may be actions in attachments, and writs of attachment may be issued to the constable or sheriff as the case may be, and in any such proceeding no bond shall be requ/red of the City Treasurer, nor shall any constable or Sheriff require of the City Treasurer an inde~tnifying bond for executing the writ of Attach- ment, or writ of Execution upon any judgment entered in such proceed- ings~ and the City Treasurer may prosecute appeals or writs of error in such cases without the necessity of providing bond therefor. It shall be the duty of the City Attorney of the City when requested by the City Treasurer to commence action for the recovery of taxes due under this Ordinance, and the remedy shall be in addition to all -25- other existing remedies, or remedies provided in this Ordinance. 24-?. In any action affecting the title to real estate or the ownership or rights to possession of personal property, the City may be made a party defendant for the purpose of obtaining a judgment or determination of its lien upon the property involved the re in. 24-8. The City Treasurer is hereby authorized to waive, for good cause shown, any penalty assessed as in this Ordinance provided, and interest imposed in excess of six per cent {6~) per annum shall be deemed a penalty. Section 25~ Taxpayers, Petition for Hearing. If any person, having made a return and paid the tax provided for in this Ordinance feels aggrieved by the assessment made upon him by the City Treasurer, he may apply to the City Treasurer by petition in writing within ten (10) days after the notice is mailed to him for a hearing and a correction of the amount of the tax so assessed, in which petition he shall set forth the reasons why such hearing should be granted and the amount by which such tax should be reduced. The City Treasurer shall notify the Petitioner in writing of the time and place fixed by him for such hearing. After such hearing, the City Treasurer shall,,~aake such order in the matter as is Just and lawful and shall furnish a copy of such order to the Petitioner. Section 26: Decisions of the City Treasurer. 26-1. Every decision of the City Treasurer shall be in writing and notice thereof shall be mailed to the vendor within -26- ten (10) days, and all such decisions shall become final upon the expiration of thirty (30) days after notice of such decision shall have been mailed to the vendor unless proceedings are taken within said time for review thereof as provided in this section. 26-2. Should the applicant for refund be aggrieved at the final decision of the City Treasurer, he may proceed to have the same reviewed by the courts in the manner provided for review of other decisions of the City Treasurer hereunder, such review to be in the District Court~f the Ninth Judicial District of the State of colorado. 26-3. Before making application to the District Court under Rule 106 (a)(4) of the colorado Rules of Civil Procedure, the party making such application shall file with the City Treasurer a bond in twice the maount of the taxes, interest, and other charges audited and stated in the determination and decision of the City Treasurer, with surety as is now provided in other cases on appeal, or at his option may deposit lawful money of the United States in the same manner as here~n~provided. 26-4. The District Court of the Ninth Judicial District of the State of Colorado shall have original juris~ction in pro- ceedings to review all questions of law and fact determined by the -27- certified mail, known address, Ordinance. City Treasurer in a~ministering the provisions of this O~dinance by a proceeding pursuant to ~ule 106(a)(4) of the Colorado ~ules of Civil Procedure. Section 27= Notices sent by registered mail or certified mail. 27.1. Ail notices required to be given to the retailer or vendor under the provisions of this Ordinance shall be in writing and if mailed postpaid by registered or return receipt requested, to him at his last shall be sufficient for the purposes of this 27-2. Every hearing before the City Treasurer shall be held in the City of Aspen. Section 28~ License and Tax Additional. The license and tax imposed by this Ordinance shall be in addition to all other licenses and taxes imposed by law, except as herein otherwise provided. Section 29: Penalty for violation. It shall be unlawful for any retailer or vendor to refuse to make any return provided to be made under this Ordinance or to -28- make any false or fraudulent return or false statement on any return or fail and refuse to make payment to the City Treasurer of any taxes collected or due the City, or in any ~anner evade the collection and ~ayment thereof, or for any person or purchaser to fail or refuse to pay such tax, or evade the payment thereof, or to aid or abet another in any attempt to evade the payment of the tax. Any person violating any of the provisions of this section shall be guilty of a violation of this Ordinance. Any corporation making a false return or a return containing a false statement shall be guilty of a violation of this Ordinance. Any Court of competent jurisdiction shall have jurisdic- tion to enforce this section. In addition to the foregoing penalties, any person who shall knowingly and willfully swear to or verify any false statement shall be guilty of the offense of perjury and on =onviction thereof shall~punished in the manner provided by law. Section 30z Penalty. Any person guilty of a violation of this Ordinance , upon ~onviction, shall be punished by a fine not exceeding Three Hundred and no/100Dollars ($300.00) or by imprisonment not exceeding ninety (90) days, ~r by both such fine and imprisoruaent. Section 31= Administration. The administration of this Ordinance is hereby vested in the City Treasurer, who shall prescribe forms and reasonable rules and regulations in conformity with this Ordinance, for the making of returns, for the ascertainment, assessment and collection of the -29- taxes imposed hereunder, and for the proper administration and enforcement hereof. Section 32~ Purpose of Tax. The City Council of the City of Aspen hereby declares that the purpose of the levy of the taxes imposed by this Ordinance is for the raising of funds for the payment of the expenses of operating the City and for capital improvements= and in accordance with these purposes all the proceeds of said tax shall be placed in and become a part off,he ~General Fund' of the City. USE TAX Section 33: Authorization of Tax. There is hereby levied and there shall be collected from every person in this City a tax or excise for the privilege of storing, using or consuming in this City any articles of tangible personal property purchased, at retail. Such tax shall be payable to and shall be collected by the City Treasurer in accordance with the following schedule ~ On storage or acquisition charges or costs from Nineteen Cents (19W) to One and 18/100 Dollars ($1.18), both inclusive, a tax of one cent (1~). On storage or acquisition charges or costs from One and 19/100 Dollars ($1.19) to Two and 18/100 Dollars ($2.18), both inclusive, a tax of two cents (2~). On storage or acquisition charges or costs from Two and 19/100 Dollars ($2.19) to Three and 18/100 D~llars ~.18), both inclusive, a tax of three cents (3~). -30- On all storage or acquisition charges or costs higher than Three and 18/100 Dollars ($3.18) one cent (1~) shall be added for each bracket of One and no/100 Dollar ($1.00) of such higher charges or costs. Section 34z Exempt/o ns. The use tax imposed by Sections 33 to 42, inclusive, of this Ordinance shall not applyz 34-1. To the storage, use or consumption of any tangible personal property the sale of which is subject to the retail sales tax imposed under the other terms of this Ordinance. 34-2. To the storage, use or consumption of any tangible personal propertY purchased for resale in this city, either in its original form or as an ingredient of a manufactured or compounded product in the~gular course of?~ business. 34-3. To the storage, use or consumption of motor fuel upon which there has accrued or has been paid the motor fuel tax prescribed under 34-4. the laws of the State of Colorado. To the storage, use or consumption of tangible per- sonal property brought into this city by a non-resident thereof for his own storage, use or consumption while temporarily within this city. 34-5. To the storage, use or consumption of tangible per- sonal property the sale d~use of which is subject to an excise tax under the laws of the United States or the State c~Colorado; or to the storage, use or consumption of such property by the United States Government, or by the State of Colorado or its institutions, or its political subdivisions~ or by religious or char~able -31- in the conduction of their regular religious or char~able functions. 34-6. To the storage, use or consumption of tangible per- sonal property by a person engaged in the business of manufacturing, compounding for sale, profit or use, any article, substance or commodity, which tangible personal property enters into the pro- cessing of or becomes an ingredient or component part of the pro- duction or service which is manufactured, compounded, or furn£shed and the container, label, or the furnished shipping case thereof. 34-?. To the storage, use or consumption of electricity, coal, coke, fuel oil or gas for use in processing, manufacturing, mining,, refining, irrigation, building construction, telegraph, telephone and radio communcation, street and railroad transportation service and all industrial use. 34-8. To the storage~ ink and newsprint. 34-9. To the storage, use or consumption of printers use or consumption of cigarettes, fermented malt beverages, and malt, vinous or spirituous liquors. Section 35= ~nthly Return - Collection. 35-1. Every person subject to the provisions of Sections 33 to 42, inclusive, of this Ordinance, who has not paid the tax imposed hereby to a retailer, on or before the 15th day of each month, shall make to the City Treasurer on forms prescribed by him, a return showing in detail the tangible personal property stored, used or consumed by him within the City of Aspen in the preceding calendar month which is subject to the tax herein imposed, and on -32- which the tax has not been paid to a retailer. Such return shall be verified by oath or affirmation of the taxpayer or his agent and shall be accompanied by a remittance of the tax shown thereon to be due. 35-2. Every retailer maintaining an office or place of business in this City, and every agent within this City of any retailer not maintaining an office or place of business in this City and making sales of tangible personal property fc~storage, use or consumption ~n the City and not exempted as in this Ordinance provided, at the time of making such sale or taking the orders therefor, or, if the storage, use or consumption of such tangible personal property is not then taxable hereunder, then at the time such storage, use or consumption becomes taxable hereunder, shall collect the tax imposed by Section 33 from the purchaser and give to the purchaser a receipt t~erefor, which receipt shall identify the property, the date sold or the date ordered, and the tax collected and paid. The taxes required to be collected by such retailer or agent from such purchaser, shall be displayed separately from the advertieed price listed on the forms or advertising matter on all sales checks, orders, sales slips or other proof of sales. 35-3. It shall he unlawful for such retailer or agent to advertise or hold out or state to the public or to any customer, directly or indirectly, assumed or absorbed by be added to the selling price of the property sold, that the tax or any part thereof will be such retailer or agent, or that it will not or if added, that -33- it or any part t~ereof will be refunded. The tax required to be collected by such retailer or agent, shall be remitted to the City in like manner as o~herwiee provided in this Ordinance for the remittance of sales tax collected by retailers, and all such retailers or agents, collecting the tax imposed by Section 33 hereof shall make returns on forms provided by the City Treasurer at such times and in such manner as is provided for the making of returns in the payment of sales taxes. The procedure for assessing and collect- ing Said taxes from such retailers or agents, or from the user when not paid to a retailer or agent, shall be the sa~e as provided in this Ordinance for the collection of sales tax, including collection by distraint warrant, and said taxes due and owing from any retailer or agent for the storage, use or consumption of tangible personal property, shall bear interest and be subject to the sa~e penalties as is provided in this Ordinance sales taxes. Section 36= for nonpayment or delinquencies of Tax Constitutes Lien. Said tax shall be a first and prior lien on the tangible personal property stored, used or consumed, subject only to valid mortgage or other liens of record on and prior to the recording of notice as required in Section 24-3, aM when such tax is collected by retailers or agents, shall be a first and prior lien, the same as is provided for sales taxes in Section 23 of this Ordinance. U~n default of payment thereof the City Treasurer, after demand upon the person owing such tax, may bring an action in his name as City -34- Treasurer in attachment, and seize any property to secure the payment of said tax, interest and penalties. In any such pro- ceeding, no bond shall be required of the City Treasurer, nor shall any constable or sheriff require from the City Treasurer an indemnify- ing bond for executing the Writ of Attachment or Writ of Levy, and no constable or sheriff shall be liable in damages when acting in accord- ance with such Writs. The remedies provided in this section shall be in addition to all other remedies. Section 37: Failure to Make Return. Any person who shall willfully fail or refuse to make the return required in Section 35, or who shall make a false or fraudu- lent return, or who shall willfully fail to pay any tax owing by him, and any person who shall aid or abet another in an attempt to evade such tax shall be g~ilty of a violation of this Ordinance, and subject to a fine not exceeding Three Hundred and no/100 Dollars ($300.00) for each such offense. Section 38~ Interest on Unpaid Tax. Any tax due and unpaid under Sections 33 to 42 inclusive, of this Ordinance shall be a debt to the City and shall draw interest at the rats of two per cent (2~) per month from the time when due until paid. The City Treasurer may recover at law the a~ount of such tax and interest in a suit instituted by the City Attorney in the name of the City Treasurer, and this remedy shall be in addition to all other remedies. Section 39: Definitions. -35- The term · ~erson· as used in Sections 33 to 42, inclusive, of this Ordinance means an ~ndividual, corporation, partnership, f~rm, joint adventure, association, estate, trust, receiver, or any other group acting as a unit and the plural as well as the singular number. The term ·storage' or 'storing? means any keeping or retention of, or exercise of dominion or control over, tangible personal property in this City. Section 40= Motor Vehicles and Trailers. Any resident person who shall purchase any motor vehicle, trailer, or semi-trailer, whether new or used, outside the corporate limits of the City of Aspen for use within this City, shall im- mediately and prior to registering and obtaining a license therefor, make a return showing such transaction to the City Treasurer and thereupon pay to him the use tax applicable thereto as provided in this Ordinance, and failure to do so shall constitute a violation of this Ordinance. Ail such motor vehicles, trailers, or sem~ trailers, purchased outside the corporate limits of the City of Aspen for use in this City shall be registered with the County Clerk and Recorder of Pitkin County, Colorado, and any person who shall register any such motor vehicle, trailer, or semi-trailer in any other county in this State or elsewhere shall be deemed in violation of this Ordinance and any such registration shall constitute prima facie evidence of an attempt to evade payment of such tax. Section 41= Rules and Regulations. The a~lministration of Sections 33 to 42 inclusive, is vested -36- in the City Treasurer and he shall prescr/be forms and rules and regulations for the a~ministration and enforcement hereof. Section 42~ Limitations. The taxes for any period, and penalties with respect thereto, together with the interest thereon imposed by this Ordinance shall not be assessed, nor shall any notice of lien be filed, or distraint warrant issued, or suit for collection be instituted or any other action to collect the same be co~nced more than three (3) years after the date on which the tax was or is payable; nor shall any lien continue after such period, except for taxes assessed before the expiration of such period, notice of lien with respect to which has been filed prior to the expiration of such period, in which cases such lien shall continue only for one (1) year after the filing of notice thereof. In the case of a false or fraudulent return with intent to evade the tax, the tax, together with interest and penalties thereon, may be assessed, or proceedings for the collection of such taxes may be begun at any time. Before the expiration of such period of limitation, the taxpayer and the City Treasurer may agree in writing to an extension thereof, and the Period so agreed on may be extended by subsequent agreements in writing. Section 43= Option of Remitting Proportionate Amou~ of Colorado Sales Tax. The City Treasurer shall by rule give retailers the option of remitting to the City Treasurer for any month an amount equal to one-half (%) of the remittance now made by or for them to the State -37- Treasurer for the colorado Retail Sales Tax or Use Tax for the same month (or in the event ofi~ change in such State tax, a proportionate part thereof which would equal one-half (%) of the present such State tax) for sales made or services performed in the C~ty of Asian, Such remittance shall be in lieu of the monthly remittances required under the provisions of this Ordinance~ and all the provisions of this Ordinance applicable to the monthly remittances otherwise provided for herein shall be applicable to the optional remittances l~rmitted by this section. Section 442 Collection by State. The City Treasurer is hereby authorized to contract with the Colorado Department of Revenue for the collection and enforcement of the sales and use taxes levied under the provisions of this Ordinance and shall have authority to pay out from the funds derived from said sales and use taxes the necessary costs and expenses of the Department in collecting and enforcing the s~me. Section 45= The taxes provided for in this Ordinance January 0 19 65 shall become effective on the first day of Section 46: Severability. If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is for any reason held or decided to be unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance with each section, subsection, paragraph, sentence, clause and phrase thereof irrespective -38- DeLeted on second re ad of the fact that any one or more sections, subsections, paragraphs, sentences, clauses or phrases might be declare~unconstitutional. a Section 47= The City Council of theCity of Aspen, in dopting this Ordinance, hereby finds that the City of Aspen is not adequately financed and an emergency is declared to exist. The Council further finds that this ordinance is necessary for the immediate preservation of the public peace, health and safety and shall be in full force and effect five days after its final passage and publication. Introduced, read and ordered published this day of July, 1964. Mayor / cl.rk Finally adopted and approved this ~ e' ~ , 1964. day of Mayor See Minutes of meeting of November 2, 1964, for motion by Council to delete emero~ency clause from title and to delete Section 47. City Clef // ' -39- STATE OF COLORADO) COUNTY OF PITKIN ) City of Aspen, Colorado, 'do herebY'certify that the above and fore- going ordinanee was introduced, read in full and passed first reading at a ~egular meeting of the City Council of the City of Aspen, Colorado, on the~T-~ ~ day of , 196¥and published in the Aspen times, a weekly newspaper of general circulation, published in the City of Aspen, Colorado, in its issue of ~:~c~f~ ~/ , 196~a~ was finally adopted ~ ~ular ~eeting of the City ~uneil on ~ 19~d o~ered published as IN ~ITNESS WHEREOF, I have hereunto set ~y hand and seal of