TC Ord. No. 19-02 Amending Chapter 3.08 Sales Tax & Ecacting Chapter 3.10 Cigarette Excise Taxp0L0RAO0
TOWN OF AVON, COLORADO
ORDINANCE NO. 19-02
AMENDING CHAPTER 3.08 SALES TAX AND
ENACTING CHAPTER 3.10 CIGARETTE EXCISE TAX
WHEREAS, the Town of Avon, Colorado (the "Town") is a home rule municipality and
political subdivision of the State of Colorado (the "State") organized and existing under a home
rule charter (the "Charter") pursuant to Article XX of the Constitution of the State; and
WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule
powers of the Town of Avon ("Town"), the Town Council has the power to make and publish
ordinances necessary and proper to provide for the safety, preserve the health, promote the
prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and
WHEREAS, Avon Town Council referred a ballot measure entitled Tax Increase on the Sale
of Tobacco and Nicotine Products to the November 6, 2018 election by Resolution No. 18-12,
which was passed by the Avon voters; and
WHEREAS, the Avon Town Council finds that amendments to the Avon Municipal Code
will implement the sales tax on tobacco products and the excise tax on cigarettes and will thereby
promote the health, safety and general welfare of the Avon community; and
WHEREAS, approval of this Ordinance on First Reading is intended only to confirm that the
Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a
public hearing in order to provide the public an opportunity to present testimony and evidence
regarding the application and that approval of this Ordinance on First Reading does not constitute
a representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies this ordinance.
BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Enactment of Section 3.08.020(4). A new Section 3.08.020(4) of the Avon
Municipal Code is hereby enacted to read as follows:
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"3.08.020(4) Upon the purchase price paid or charged upon all retail sales and purchases
of tobacco products as defined Section 5.10.030."
Section 3. Enactment of Section 3.08.030(a). Section 3.08.030(a) of the Avon Municipal
Code is hereby amended by adding language so that it reads in its entirety as follows:
"There is imposed upon all sales of all items specified in Section 3.08.020 within the boundaries
of the Town a tax equal to four percent (4%) of gross receipts derived from sales of tangible
personal property and services pursuant to this Chapter except that the sales tax imposed on
tobacco products shall be forty percent (40%)."
Section 4. Enactment of Chapter 3.10 — Cigarette Excise Tax. The Avon Municipal Code
is hereby amended by enacting a new Chapter 3.10 — Cigarette Excise Tax, to read as follows:
"3.10.010 - Words and phrases defined.
Cigarette shall mean cigarette as is defined in Section 5.10.030.
3.10.020 — Cigarette excise tax.
(a) There is imposed upon all sales of all cigarettes a cigarette excise tax in the amount of fifteen cents per cigarette
or three dollars per pack of twenty cigarettes.
3.10.030 - Unlawful to advertise absorption of tax.
It is unlawful for any retailer to advertise, to hold out to state to the public or to any consumer, directly or indirectly,
that the tax or any part thereof imposed by this Chapter 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 any part thereof will be refunded.
3.10.040 - License for retailer.
It is unlawful for any person to engage in the business of making cigarette sales without first having obtained a
tobacco retailer license in accordance with Chapter 5.10, which license shall be granted and issued by the Director of
Finance, and shall be in force and effect until suspended or revoked.
3.10.050 - Duty to keep books and records.
It shall be the duty of every person required by the provisions of Chapter 5.10 to obtain a tobacco retailer license,
to keep and preserve suitable records of all sales made by him or her, and such other books or accounts as may be
necessary to determine the amount of tax for the collection of which he or she is liable hereunder. It shall be the duty
of every such person to keep and preserve for a period of three (3) years all invoices of goods and merchandise
purchased for resale, and all such books, invoices and other records shall be open for examination at any time by the
Director of Finance or his or her duly authorized agents.
3.10.060 — Cigarette excise tax return.
(a) Every person, partnership or corporation required to obtain a tobacco retailer license pursuant to the provisions
of Chapter 5.10 shall file a cigarette excise tax return, upon forms approved by the Director of Finance, on or
before the twentieth day of each calendar month for the sales activities of the preceding calendar month;
providing, however, that, if the accounting methods regularly employed by the licensed retailer in the transaction
of his or her business, or other conditions, are such that reports of sales made on a calendar -monthly basis will
impose unnecessary hardship, the Director may, upon request of such retailer, accept reports at such intervals
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as will, in his or her opinion, better suit the convenience of the taxpayer, and will not jeopardize the collection of
the tax; and provided further, that a retailer doing business in two (2) or more places or locations may file one (1)
return covering all such business activities in the Town.
(b) The returns so filed shall contain such information as may enable the Director to accurately determine the amount
of tax collected by the person, partnership or corporation filing the return, but, in all cases, shall contain the
following information:
(1) The amount of gross taxable cigarette sales made for which the return is filed;
(2) The total quantity of cigarettes returned by the purchaser as a result of a return of goods sold by the retailer,
provided the original sale was a taxable transaction;
(3) The total, fair market value of any property received by the retailer as a result of an exchange of property,
provided the property so received is held by the retailer to be sold or leased to a user or consumer in the
regular course of his or her business;
(4) The total quantity of cigarettes sold on credit, the obligation for which is not secured by a conditional sales
contract, chattel mortgage or other security instrument entitling the retailer to repossess the item sold, which
are found to be worthless and which may be deducted as bad debts on the retailer's federal income tax
return.
(c) The return shall be accompanied by an amount equal to the cigarette excise tax required to be collected by the
tobacco retailers but which, in no case, shall be less than the amount actually collected, nor less than fifteen cents
per cigarette sold.
(d) All other persons, partnerships and corporations shall pay to the Director the amount of any tax due under the
provisions of Section 3.10.020 not less than fifteen (15) days after the date that the tax becomes due.
3.10.070 - Examinations of returns—refunds—deficiencies—notice of appeal.
(a) As soon as practicable after any tax return is filed, the Director of Finance shall examine it, and if it then appears
that the correct amount of tax to be remitted is greater or less than that shown in the return, the tax shall be
recomputed.
(b) If the amount paid exceeds that which is due, the excess shall be refunded or credited against any subsequent
remittance from the same taxpayer.
(c) If the amount paid is less than the amount due, or if the Director of Finance determines that any amount of
cigarette excise tax is due and unpaid, for any reason, the difference between the amount paid and the amount
owed to the Town, together with interest thereon at the rate of one and one-half percent (1'/z%) per month from
the time the return was due (unless provided otherwise herein), shall be paid by the vendor within fifteen (15)
days after written notice and demand to him or her from the Director of Finance.
(d) An appeal of a notice of assessment, or demand issued to a vendor or taxpayer for failure to file a return,
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 or demand. Any such appeal shall identify
the amount of tax disputed and the basis for the appeal.
3.10.080 - Penalty—disregard for rules.
If any part of the deficiency is due to negligence or intentional disregard of authorized rules and regulations with
knowledge thereof, but without intent to defraud, there shall be added ten percent (10%) of the total amount of the
deficiency; and in such case, interest shall be collected at the rate of one and one-half percent (1'/z%) 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 within fifteen (15) days after written notice and demand by the Director of
Finance.
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3.10.090 - Penalty—fraud.
If any part of the deficiency is due to fraud with the intent to evade the tax, then there shall be added fifty percent
(50%) of the total amount of the deficiency, and in such case the whole amount of the tax unpaid, including the
additions, shall become due and payable fifteen (15) days after written notice and demand by the Director of Finance,
and an additional one and one-half percent (1'h%) per month on said amounts shall be added from the date the return
was due until paid.
3.10.100 - Service charge—returned checks.
If a check in payment of any cigarette excise tax is returned unpaid, a processing charge of five dollars ($5.00)
will be added to any amount due and owing.
3.10.110 - Investigation of retailer's books.
For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax
due from any taxpayer, the Director of Finance may hold investigations and hearings concerning any matters covered
by this Chapter, and may examine any relevant books, papers, records, or memoranda of any such person, requiring
the attendance of such taxpayer, or any officer or employee of such taxpayer, or of any person having knowledge of
such sales, and taking such testimony and proof as may be necessary to properly ascertain any tax liability. The
Director shall have power to administer oaths to any person in the course of such investigations or hearings. Production
of documents and attendance of witnesses shall be requested by the Director on his or her own motion or on motion
of any party; any request for production or attendance shall inform persons that compliance is voluntary but that, if the
request is not complied with, the Director may apply to the Municipal Judge for issuance of a subpoena.
3.10.120 - Judge compels attendance.
The Municipal Judge of the Town, upon the application of the Director of Finance, may compel the attendance of
witnesses, the production of books, papers, records or memoranda, and the giving of testimony before the Director of
Finance or any of his or her duly authorized agents, by the issuance and enforcement of subpoenas, in the same
manner as production of evidence may be compelled before the court.
3.10.130 – Cigarette excise tax information confidential.
(a) Except in accordance with judicial order, or as otherwise herein provided, the Town shall not divulge any
information gained from any return filed or as a result of any investigation or hearing held pursuant to the
provisions of this Chapter.
(b) Nothing contained in this subsection shall be construed to prohibit:
(1) The delivery to a person, or to his or her duly authorized representative, of a copy of any return filed in
connection with his or her tax;
(2) The publication of statistics so classified as to prevent the identification of particular reports or returns and
the items thereof;
(3) The inspection by the Town Attorney, or any other legal representative of the Town, of the return or other
information relating to any taxpayer who may become involved in litigation with the Town in which the said
information may become material.
(c) Reports and returns shall be preserved for three years, and thereafter until the Director of Finance, with the
approval of the Town Manager, shall order them destroyed.
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3.10.140 - Estimated taxes and assessment thereof.
(a) If any person neglects or refuses to make a return for, or payment of any of the taxes levied by this Chapter when
the same become due, the Director of Finance shall, at some date subsequent to five (5) days after the date for
the making of such return or the payment of such taxes, give written notice to the person responsible for making
the return or paying the taxes or the lack of the filing of such return or payment of said taxes, which notice shall
notify the taxpayer, or other person responsible for the return of the tax, that the same must be paid within five
(5) days from the date of the receipt of said notice.
(b) If the return is not filed, or the taxes are not paid, within five (5) days after receipt of such notice, the Director may
make an estimate, based upon such information as may be available to him or her, of the amount of taxes due
for the period or periods for which taxpayer is delinquent and shall add thereto a penalty in an amount equal to
ten percent (10%) of the estimated tax, together with interest on the estimated tax at the rate of one and one-half
percent (1'/z%) per month from the due date thereof, and may assess said amount against the delinquent taxpayer
by giving the taxpayer written notice thereof, which notice shall require the taxpayer either to pay the amount
assessed by the Director of Finance or to petition him or her for a correction of the estimate within a period of ten
(10) days thereafter. Any such petition for correction shall be in writing, and any facts or figures in support thereof
shall be submitted upon the oath of the taxpayer. The Director shall consider the matters submitted by the
taxpayer, and shall make a decision as to the proper amount of taxes, penalty and interest due, which decision
shall be final and binding.
3.10.150 - Unpaid tax a prior lien.
(a) The taxes imposed by Section 3.10.020 shall be a first and prior lien upon the goods and business fixtures owned
or used by any tobacco retailer required by the provisions of Section 3.10.060 to submit a return and make
payment of the taxes collected, except the stock of goods held for sale in the ordinary course of business, until
said taxes are paid in full.
(b) The lien created by subsection (a) above shall be construed to be liens and encumbrances upon the specific
items of personal property therein enumerated, and shall take precedence over all other liens, encumbrances or
claims of whatsoever nature, and shall immediately attach to such items without the necessity of the filing of any
notice of lien thereof.
3.10.160 - Sale of stock or quitting business.
(a) Any retailer who sells out his or her business or stock of goods or who quits business, shall be required to prepare
and file a cigarette excise tax return as provided in this Chapter within fifteen (15) days subsequent to the date of
the completion of said sale or the quitting of business, and the purchaser thereof, if any, shall be required to
withhold sufficient of the purchase money to cover the amount of the tax due and unpaid, until such time as the
retailer shall produce a receipt from the Director of Finance showing that all such taxes have been paid and that
no further taxes are due.
(b) If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided, and
the tax shall be due and unpaid after the fifteen -day period allowed, such purchaser shall be personally liable for
the payment of the taxes unpaid by the former owner, and the liens created by Section 3.10.150 shall immediately
attach to the personal property so purchased; provided, however, that the retailer so selling or quitting business
shall not be relieved in any manner of his or her liability for payment of any of said taxes due.
3.10.170 - Enforcement of taxes and foreclosure of liens.
(a) If any taxes, penalty or interest imposed by this Chapter and shown due by returns filed by the taxpayer, or as
shown by assessment duly made as provided herein, are not paid within fifteen (15) days after the same are due,
the Director of Finance shall issue a warrant under his or her official seal directed to any duly authorized revenue
collector, or to the sheriff of any county in this State commanding him or her to levy upon, seize and sell sufficient
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personal property of the tax debtor which is subject to the liens created by Section 3.10.150 found within his or
her county for the payment of the amount due, together with interest, penalties and costs.
(b) Simultaneously with the issuance of said warrant, the Director shall issue a notice of tax lien, setting forth the
name of the taxpayer, the amount of the tax, penalties, interest and costs, the date of the accrual thereof, and
that the Town claims a first and prior lien therefor on the tangible personal property of the taxpayer subject to said
liens.
(c) Such notice shall be on forms prepared by the Director, shall be verified by him or her, and shall be filed in the
office of the clerk and recorder of any county in this State in which the taxpayer owns tangible personal property
subject to said liens.
(d) Upon the filing of said notice of lien, the effective date of the lien shall relate back to the date of the first transaction
for which any tax is due.
3.10.180 - Refunds—procedure.
(a) A refund shall be made or credit allowed for any tax paid under protest by any purchaser who has or claims to
have an exemption as in this Chapter provided. Such refund shall be made by the Director of Finance after
compliance with the following conditions precedent:
(1) Application. Applications for refund must be made within ninety (90) days after the purchase or use of
cigarettes on which the exemption is claimed, and must be supported by the affidavit of the purchaser,
accompanied by the original paid invoice or sales receipt and a certificate issued by the seller, together with
such further information as may be requested by the Director.
(2) Decisions. Upon receipt of such application and accompanying information, the Director shall examine the
same with all due speed and shall give notice to the applicant by an order in writing of his or her decision
thereon.
(3) Hearing. An aggrieved applicant may, within twenty (20) days after such decision is mailed to him or her,
petition the Director for a hearing on the claim. Such petition shall be in writing and shall identify the amount
of the refund requested and the basis for the request. The Director shall, upon due notice to the applicant,
hold a hearing upon such petition, taking such information or evidence as may be material, and shall
thereafter render his or her final decision upon such application, which decision shall be final.
(b) Any person claiming to have paid a tax for the purchase or use of cigarettes in excess of the rates established
by this Chapter may apply for a refund of the excess in the manner prescribed above.
(c) 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.
3.10.190 - Refund not assignable.
The right of any person to a refund under this Chapter shall not be assignable, and application for refund must
be made by the same person who purchased or used the goods and who paid the tax thereon, as shown by the invoice
of the sale thereof or other appropriate document.
3.10.200 - Notices sent by mail.
All notices required to be given to the retailer or vendor under the provisions of this Chapter shall be in writing
and, if mailed, to him or her at his or her last known address shall be sufficient for the purpose of this Chapter.
3.10.210 - License and tax in addition to all other taxes.
The license and tax imposed by this Chapter shall be in addition to all other licenses and taxes imposed by law,
except as herein otherwise provided.
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3.10.220 - Administration.
The administration of all the provisions of this Chapter is vested in the Director of Finance, who may, with the
approval of the Town Manager, prescribe forms and reasonable rules and regulations in conformity with this Chapter
for the making of returns, for the ascertainment, assessment and collection of the taxes imposed hereunder, and for
the proper administration and enforcement hereof, a copy of which forms, rules and regulations shall be made available
to the public.
3.10.230 - Unlawful acts.
It is unlawful for any person to fail to perform any affirmative duty required by this Chapter, or to willfully make,
prepare or submit a tax return or other document containing any false statement, or to willfully make a false statement
in any investigation or hearing, which may affect the tax liability of any person.
3.10.240 - Penalties.
Any person, firm or corporation violating any of the provisions of this Chapter shall be deemed guilty of a violation
of this Chapter, and any such person, firm or corporation shall be punished in accordance with the provisions of Section
1.08.010 of this Code.
3.10.250 – Cigarette excise tax—collection—limitation of actions.
(1) No cigarette excise tax, or interest thereon or penalties with respect thereto, shall be assessed, nor shall
any notice of lien be filed, or distraint warrant issued, or suit for collection be instituted, nor any other action
to collect the same be commenced more than three (3) years after the date on which the tax was or is
payable; nor shall any lien continue after such period, except for taxes assessed before the expiration of
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
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 Director of Finance may agree in writing to an extension thereof, and the period so agreed on may be
extended by subsequent agreements in writing.
(2) In the case of failure to file a return, the cigarette excise tax may be assessed and collected at any time.
3.10.260 – Cigarette excise tax—refunds—limitation of actions.
(1) An application for refund of tax moneys paid in error or by mistake shall be made within three (3) years after
the date of purchase of the cigarettes for which the refund is claimed.
3.10.270 – Cigarette excise tax—interest on underpayment, nonpayment, or extensions of time for payment
of tax.
(a) If any amount of cigarette excise tax is not paid on or before the last date prescribed for payment, interest on
such amount at the rate imposed under Section 3.10.300 shall be paid for the period from such last date to the
date paid. The last date prescribed for payment shall be determined without regard to any extension of time for
payment and shall be determined without regard to any notice and demand for payment issued, by reason of
jeopardy, prior to the last date otherwise prescribed for such payment. In the case of a tax in which the last date
for payment is not otherwise prescribed, the last date for payment shall be deemed to be the date the liability for
the tax arises, and in no event shall it be later than the date notice and demand for the tax is made by the Director
of Finance.
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(b) Interest prescribed under Sections 3.10.270 through 3.10.290 shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as the tax to which it is applicable.
(c) If any portion of a tax is satisfied by credit of an overpayment, then no interest shall be imposed under this Section
on the portion of the tax so satisfied for any period during which, if the credit had not been made, interest would
have been allowed with respect to such overpayment.
(d) Interest prescribed under Sections 3.10.270 through 3.10.290 on any cigarette excise tax may be assessed and
collected at any time during the period within which the tax to which such interest relates may be assessed and
collected.
3.10.280 – Cigarette excise tax—deficiency due to negligence.
If any part of the deficiency in payment of the cigarette excise tax is due to negligence or intentional disregard of
the ordinances or of authorized rules and regulations of the Town with knowledge thereof, but without intent to defraud,
there shall be added ten percent (10%) of the total amount of the deficiency, and interest in such case shall be collected
at the rate imposed under Section 3.10.300, in addition to the interest provided by Section 3.10.290, on the amount of
such 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 and demand to him or her by the Director of Finance.
If any part of the deficiency is due to fraud with the intent to evade the tax, then there shall be added one hundred
percent (100%) of the total amount of the deficiency and in such case, the whole amount of the deficiency and in such
case, the whole amount of the tax unpaid, including the additions, shall become due and payable ten (10) days after
written notice and demand by the Director of Finance and an additional three percent (3%) per month on said amount
shall be added from the date the return was due until paid.
3.10.290 – Cigarette excise tax—neglect or refusal to make return or to pay.
If a person neglects or refuses to make a return in payment of the cigarette excise tax or to pay any sales tax as
required, the Director of Finance shall make an estimate, based upon such information as may be available, of the
amount of taxes due for the period for which the taxpayer is delinquent and shall add thereto a penalty equal to the
sum of fifteen dollars ($15.00) for such failure or ten percent (10%) thereof and interest on such delinquent taxes at
the rate imposed under Section 3.08.353 plus one-half percent (0.5%) per month from the date when due, not
exceeding eighteen percent (18%) in the aggregate.
3.10.300 - Rate of interest.
When interest is required or permitted to be charged under any provisions of Sections 3.10.270 through 3.10.290,
the annual rate of interest shall be that established by the state commissioner of banking pursuant to Section
39.21.110.5, C.R.S.
3.10.310 - Other remedies.
Nothing in Sections 3.10.270 through 3.10.300 shall preclude the Town from utilizing any other applicable
penalties or remedies for the collection or enforcement of cigarette excise taxes.
3.10.320 – Cigarette excise tax—final decision of Town—appeals—posting of bonds.
(1) Within fifteen (15) days after filing a notice of appeal as provided in Section 3.08.130, the taxpayer shall file
with the district court a surety bond in twice the amount of taxes, interest and other charges stated in the
final decision by the Director of Finance which are contested on appeal. The taxpayer may, at his or her
option, satisfy the surety bond requirement by a savings account or deposit in or a certificate of deposit
issued by a state or national bank or by a state or federal savings and loan association, in accordance with
the provisions of Section 11.35-101(1), C.R.S., equal to twice the amount of the taxes, interest and other
charges stated in the final decision by the Director of Finance.
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(2) The taxpayer may, at his or her option, deposit the disputed amount with the Director of Finance in lieu of
posting a surety bond. If such amount is so deposited, no further interest shall accrue on the deficiency
contested during the pendency of the action. At the conclusion of the action, after appeal to the Supreme
Court or the court of appeals or after the time for such appeal has expired, the funds deposited shall be, at
the direction of the court, either retained by the Director of Finance and applied against the deficiency or
returned in whole or in part to the taxpayer with interest at the rate imposed pursuant to Section 3.08,353.
No claim for refund of amounts deposited with the Director of Finance need be made by the taxpayer in
order for such amounts to be repaid in accordance with the direction of the court.
3.10.330 – Cigarette excise tax—final decision of Town—appeals—posting of bonds.
For transactions consummated on or after January 1, 1986:
(1) Within fifteen (15) days after filing a notice of appeal as provided in Section 3.10.070, the taxpayer shall file
with the district court a surety bond in twice the amount of taxes, interest and other charges stated in the
final decision by the Director of Finance which are contested on appeal. The taxpayer may, at his or her
option, satisfy the surety bond requirement by a savings account or deposit in or a certificate of deposit
issued by a state or national bank or by a state or federal savings and loan association, in accordance with
the provisions of Section 11.35-101(1), C.R.S., equal to twice the amount of the taxes, interest and other
charges stated in the final decision by the Director of Finance.
(2) The taxpayer may, at his or her option, deposit the disputed amount with the Director of Finance in lieu of
posting a surety bond. If such amount is so deposited, no further interest shall accrue on the deficiency
contested during the pendency of the action. At the conclusion of the action, after appeal to the Supreme
Court or the court of appeals or after the time for such appeal has expired, the funds deposited shall be, at
the direction of the court, either retained by the Director of Finance and applied against the deficiency or
returned in whole or in part to the taxpayer with interest at the rate imposed pursuant to Section 3.10.300.
No claim for refund of amounts deposited with the Director of Finance need be made by the taxpayer in
order for such amounts to be repaid in accordance with the direction of the court.
3.10.340 – Cigarette excise tax—collection—map of municipal boundaries.
The Director of Finance shall make available to any requesting vendor a map showing the boundaries of the
Town. No penalty shall be imposed or action for deficiency maintained against such a vendor who in good faith
complies with the most recent map available to it.
3.10.350 - Cigarette tax—alternative dispute resolution procedure—deficiency notice or claim for refund.
For transactions consummated on or after January 1, 1986, in lieu of the procedure provided for in Section
3.10.320, the taxpayer may elect a hearing on the Director of Finance's final decision on a deficiency notice or claim
for refund pursuant to procedure set forth in this Section.
(1) As used in this Section, state hearing means a hearing before the Executive Director of the Department of
Revenue or delegate thereof as provided in Section 29-2-106.1(3), C.R.S.
(2) When the Town asserts that sales or use taxes are due in an amount greater than the amount paid by a
taxpayer, the Town shall mail a deficiency notice to the taxpayer by certified mail, The deficiency notice shall
state the additional sales and use taxes due. The deficiency notice shall contain notification, in clear and
conspicuous type, that the taxpayer has the right to elect a state hearing on the deficiency pursuant to
Section 29-2-106.1(3), C.R.S. The taxpayer shall also have the right to elect a state hearing on the Town's
denial of such taxpayer's claim for a refund of sales tax paid.
(3) The taxpayer shall request the state hearing within thirty (30) days after the taxpayer's exhaustion of local
remedies. The taxpayer shall have no right to such hearing if he or she has not exhausted local remedies
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or if he or she fails to request such hearing within the time period provided for in this subsection. For
purposes of this subsection, exhaustion of local remedies means:
a. The taxpayer has timely requested in writing a hearing before the Town and such Town has held such
hearing and issued a final decision thereon. Such hearing shall be informal and no transcript, rules of
evidence or filing of briefs shall be required; but the taxpayer may elect to submit a brief, in which case
the Town may submit a brief. The Town shall hold such hearing and issue the final decision thereon
within ninety (90) days after the Town's receipt of the taxpayer's written request therefor, except the
Town may extend such period if the delay in holding the hearing or issuing the decision thereon was
occasioned by the taxpayer, but, in any such event, the Town shall hold such hearing and issue the
decision thereon within one hundred eighty (180) days of the taxpayer's request in writing therefor; or
b. The taxpayer has timely requested in writing a hearing before the Town and the Town has failed to hold
such hearing or has failed to issue a final decision thereon within the time periods provided in
Subparagraph a above.
(4) If a taxpayer has exhausted his or her local remedies as provided in subsection (3) above, the taxpayer
may request a state hearing on such deficiency notice or claim for refund, and such request shall be made
and such hearing shall be conducted in the same manner as provided in Section 29-2-106.1(3) through (7),
C.R.S.
(5) If the deficiency notice or claim for refund involves only the Town, in lieu of requesting a state hearing, the
taxpayer may appeal such deficiency or denial of a claim for refund to the district court of the County of
Eagle as provided in Section 29-2-106.1(8), C.R.S., provided the taxpayer complies with the procedures set
forth in subsection (3) of this section.
(6) Nothing in this Section shall prohibit the taxpayer from pursuing judicial review of a final decision of the
Town as otherwise provided in Section 3.10.320.
(7) If the Town reasonably finds that the collection of sales tax will be jeopardized by delay, the Town may
utilize the procedures set forth in Section 39-21-111, C.R.S.
(8) 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.
Section 5. Codification Amendments. The codifier of the Town's Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations, provided that such correction shall not substantively
change any provision of the regulations adopted in this Ordinance. Such corrections may include
spelling, reference, citation, enumeration, and grammatical errors.
Section 6. Interpretation. This Ordinance shall be interpreted and applied to comply in all
respects with Article X, Section 20, of the Colorado Constitution, in its application to any person
or circumstance and no part of this Ordinance shall be interpreted or applied to constitute a tax
policy change that would require voter approval.
Section 7. Non -Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid or held to be in conflict
with Article X, Section 20, of the Colorado Constitution, such invalidity or conflict shall invalidate
this Ordinance in its entirety. The Town Council hereby declares that it would have passed this
Ordinance and each provision thereof, even though any one of the provisions might be declared
Ord. 19-02 TOBACCO SALES TAX AND CIGARETTE EXCISE TAX - FINAL
March 12, 2019
Page 10 of 12
unconstitutional or invalid. As used in this Section, the term "provision" means and includes any
part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application"
means and includes an application of an ordinance or any part thereof, whether considered or
construed alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 8. Effective Date. This Ordinance shall take effect thirty (30) days after the date of
final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 9, Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and welfare.
The Town Council further determines that the Ordinance bears a rational relation to the proper
legislative object sought to be obtained.
Section 10. No Existing Violation Affected. Nothing in this Ordinance shall be construed to
release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or
affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability
incurred, or any cause or causes of action acquired or existing which may have been incurred or
obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any
such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall
be treated and held as remaining in force for the purpose of sustaining any and all proper actions,
suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for
the purpose of sustaining any judgment, decree or order which can or may be rendered, entered,
or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring
such penalty or liability or enforcing such right, and shall be treated and held as remaining in force
for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before
any court or administrative tribunal.
Section 11. Publication. The Town Clerk is ordered to publish this Ordinance in accordance
with Chapter 1.16 of the Avon Municipal Code.
[SIGNATURE PAGE FOLLOWS]
Ord. 19-02 TOBACCO SALES TAX AND CIGARETTE EXCISE TAX - FINAL
March 12, 2019
Page 11 of 12
INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC
HEARING on February 26, 2019 and setting such public hearing for March 12, 2019 at the
Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado.
B ATTEST: �p�d�A OF
Sarah Smith Hymes, Mayor Brenda Torres, Deputy Town ler• 9" A L
ADOPTED ON SECOND AND FINAL READING on March 12, 2019
Sa Smith Hymes, May
ATTEST:
Torres, Town Clerk
Ord. 19-02 TOBACCO SALES TAX AND CIGARETTE EXCISE TAX - FINAL
March 12, 2019
Page 12 of 12
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