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TC Ord. No. 1982-270 0 TOWN OF AVON ORDINANCE No. #82-27 SERIES OF 1982 AN ORDINANCE RELATING TO REVENUE AND AMEND- ING THE MUNICIPAL CODE OF THE TOWN OF AVON TO ESTABLISH A SALES TAX RATE OF 4%, TO PROVIDE PROCEDURES FOR SALES TAX COLLECTION AND PROVIDING PENALTIES FOR THE VIOLATION HEREOF. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: Section 1. Amendment. Chapter 3.08 of Title 3 of the Municipal Code of the Town of Avon is repealed and re- enacted to provide as follows: 3.08.010 Definitions. When used in this chapter, the following words and phrases shall have the following meanings unless from the context it clearly appears that different meaning is indicated: (a) "Director of Finance" or "Director" means the person duly appointed to that office by the Town Manager. The term shall include any designee of the Director. (b) "Sale" or "Sale and Purchase" means a sale or exchange of any type, including a sale for cash, an install- ment or credit sale, an exchange and any other transaction, whereby the title or possession of tangible personal proper- ty, as that term is herein defined, is assigned or transfer- red, conditionally or otherwise, for a consideration of any nature. (c) "Retail Sale" means and includes every sale, as herein defined, made within the boundaries of the Town, except a sale to a purchaser, other than to the consumer or user of the property sold, who intends to re-sell or to lease the same to the user or consumer. (d) "Retailer" means any person making a retail sale. (e) "Taxpayer" means either the person obligated to pay the tax levied by this Chapter, or the person ob- ligated to collect and account for the same to the Director of Finance. (f) "Religious, charitable or eleemosynary institution" means any institution which is a charitable institution exempt from income taxation under the Internal Revenue Act of the United States. (g) "Tax" means either the amount required to be paid by a taxpayer upon the sale, purchase or use of an item of tangible personal property or the aggregate amount of monies collected by a retailer upon which such retailer is obligated to account to the Director of Finance. 0 0 (h) "Tangible personal property" means corporeal personal property of all types. The term shall not, however, include newspapers, as defined by Section 24-70-102, C.R.S. 1973. (i) "Purchase price" means the price to the consumer, exclusive of any direct tax imposed by the federal government, by the State of Colorado, or by this chapter. In the case of all retail sales involving the exchange of property, the purchase price of the property received in the exchange shall be the total value of any property exchanged therefor, which is to be held for resale, or for lease, by the other party. (j) "Gross taxable sales" means the total amount received in money, credits, property, or other considera- tion, valued in money for the total sales at retail made by the retailer within the Town during any reporting period. 3.08.020 Taxable Items. There shall be collected and paid as a tax the amounts stated in Subsection 3.08.030 upon the following: (a) on the purchase price paid or charged upon all retail sales and purchases of tangible personal property within the boundaries of the Town of Avon. (b) Upon the amount paid for all meals, including cover charges, if any, furnished in lint restaurant, eating house, hotel drug store, club, resort, or -such place at which meals or food are sold to the public. 3.08.030 Sales Tax Levy. (a) There is hereby imposed upon all sales of all items specified in Section 3.08.020 within the boundaries of the Town of Avon a tax equal to four per cent of gross receipts derived from sales of tangible personal property and services pursuant to this chapter. - - - - - (b) In addition to the tax levied by subsection (a) hereof, there is also hereby levied a tax, based upon rental fee, price or other consideration paid or received therefor, upon the rental or lease of any room, rooms or mobile homes for lodging purposes in any hotel, motel, lodge, resort, club, rooming house, apartment building or other establishment, making such rooms available to the public, where the period of lodging for which such rental fee, price of other consideration is paid or received shall be less than thirty (30) days. The tax hereby levied shall be based upon the same schedule as is set forth in Sub- section (a) hereof and the person, partnership, corporation or other entity making such rooms available shall, for all purposes of this chapter, be deemed to be a "retailer" as defined in Section 3.08.010. (c) The retailer shall add the tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid, and shall be recoverable at law in the same manner as other debts. 3.08.040 Exempt Items. The sale of the following classes of tangible personal property are exempt from the tax imposed by Section 3.08.030. - 2 - • • (a) Motor vehicles, trailers, and semi-trailers, registered outside of the Town of Avon. (b) Sales of tangible personal property where both the following conditions exist: (1) The sales are to parties who are residents of, or doing business in, the State of Colorado but outside the Town of Avon; and (2) the articles purchased are to be delivered to the purchaser outside the Town by common carrier or by the con- veyance of the seller or by mail. (c) Sale of fuel used for the operation of internal combustion engines. (d) Sales of medicine, medical supplies, orthope- dic braces and appliances, dental appliances, hearing aids, crutches, wheel chairs, eye glasses, or other mechanical contrivances when purchased with a licensed practitioner's written prescription. (e) Sales of goods manufactured within the Town and sold directly by the manufacturer to a common carrier operating in interstate commerce as the ultimate consumer thereof. (f) Sales of electrical energy, gas or telephone, telegraph and cable television services and the sale or furnishing of steam or other heat. 3.08.050 Exempt Taxpayers. Sales to the follow- ing classes of taxpayers shall be exempt from the tax imposed by this Chapter: (a) Sales to the United States Government; to the State of Colorado, its departments or institutions, and to the political subdivisions thereof, in their governmental capacity only; in all sales to the Town; providing, however, that no commercial, industrial, or other banking institution, organized or chartered by the United States Government, any agency or department thereof, or by the State of Colorado, shall be considered a governmental institution for the purpose of this exemption. (b) Sales to religious, charitable, and eleemosynary institutions, in the conduct of their regular religious, charitable, and eleemosynary functions and activities. (c) Nothing herein contained shall be deemed to exempt from the tax levied by this chapter sales of building material or supplies to be used by a contractor for the construction of an improvement for any of the institutions or agencies enumerated in Subsections (a) or (b) above. 3.08.060 Burden of Providincr Exemptions Disputes. The burden of proof that any retailer is exempt from collecting a tax upon any goods sold and paying same to the Director of Finance, or from making return for the same, shall be on the retailer under such reasonable requirements of proof as the Director may prescribe. Should a dispute arise between any purchaser and seller as to whether or not any retail sale is exempt from taxation hereunder, neverthe- less, the seller shall collect and the purchaser shall pay such tax; and the seller shall thereupon issue to the purchaser a receipt, or certificate, on forms prescribed by - 3 - i 0 the Director, showing the names 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 Director for a refund of such taxes, and it shall then be the duty of the Director to determine the question of exemption. In any case where the Town refunds any taxes, it may collect from the retailer the amount of taxes retained by him as a fee which is attributable to the transaction. 3.08.070 Unlawful to Advertise Absorption of Tax. It shall be unlawful for any retailer to advertise, to hold out or 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. 3.08.080 License for Retailer. It shall be unlawful for any person to engage in the business of making retail sales, as the same is defined herein, without first having obtained a license therefor, which license shall be granted and issued by the Director of Finance, and shall be in force and effect until suspended or revoked. 3.08.090 When License Not Required. No license shall be required for any person engaged exclusively in the business of selling commodities which are exempt from taxation under this chapter. 3.08.10 Itinerant Vendors. Any retailer who does not intend to be actively engaged in selling for a period greater than three (3) consecutive months, shall, prior to obtaining said license, deposit with the Director of Fi- nance, a cash or surety bond in the amount of Sixty Dollars ($60.00) for the benefit of the Town, in such form as may be approved by the said Director of Finance, which bond shall be conditioned upon and authority for the payment of the retail sales taxes due or to become due. Such retailers shall make reports of the amount of taxes collected, shall pay the same to the Town of Avon upon such forms and at such items as the Director of Finance may require. A failure to make such report or to pay any tax due at the time specified shall cause an immediate suspension to the license and the forfeiture of the bond posted. 3.08.11 Duty to Keep Books and Records. It shall be the duty of every person required by the provisions of Section 3.08.08 to obtain a sales tax license, 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 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 duly authorized agents. 3.08.12 Sales Tax Return. (a) Every person, partnership or corporation required to obtain a sales tax license pursuant to the provisions of Section 3.08.08 shall file a sales tax return, upon forms approved by the Director of Finance, not less than once every thirty (30) days for the preceding calendar month; providing, however, that, if the accounting methods regularly employed by the licensed - 4 - • retailer in the transaction of his business, or other conditions, are such that reports of sales made on a calen- dar monthly basis will impose unnecessary hardship, the Director may, upon request of said retailer, 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; 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 deter- mine 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 sales made for which the return is filed; (2) The total sales price of all property 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 ret~- ?.ler to be sold or leased to a user or consumer in the regular course of his business; (4) The total amount of retail sales which are exempt from the tax imposed by Section 3.08.03 by reason of the provisions of Sections 3.08.04 and 3.08.05; (5) The total amount of sales made 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 sales tax required to be collected by the retailer but which in no case, shall be less than the amount actually collected, nor less than four per cent (4%) of the figure derived by subtracting from the gross taxable sales, as reflected on the return, the total sales described in Subsections (b) (2) , - (3) , - (4) and - (5) , above as reflected on the return; provided, however, the retailer may deduct from the total tax due an amount equal to one and six-tenths per cent 1.6%) of the sales tax required to be collected, which may be retained by the retailer as a fee for collecting said tax. (d) All other person, partnerships and corpo- rations shall pay to the Director the amount of any tax due under the provisions of Section 3.08.03 not less than fifteen (15) days after the date that said tax becomes due. 3.08.13 Examinations of Returns-Refunds-- Deficiencies. As soon as practicable after any sales tax return is filed, the Director of Finance shall examine it, and if it then appears that the correct amount of tax to be - 5 - i • remitted is greater or less than that shown in the return, the tax shall be recomputed. If the amount paid exceeds that which is due, the excess shall be refunded or credited against any subsequent remittance from the same taxpayer. If the amount paid is less than the amount due, the difference together with interest thereon at the rate of one and one-half per cent (1~%) per month from the time the return was due, shall be paid by the vendor within fifteen (15) days, after written notice and demand to him from the Director. 3.08.14 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 per cent (10%) of the total amount of the deficiency; and in such case, interest shall be collected at the rate of one and one-half 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 within fifteen (15) days after written notice and demand by the Director of Finance. 3.08.15 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 per cent (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 per cent W,%) per month on said amounts shall be added from the date the return was due until paid. 3.08.16 Service charge; Returned Checks. If a check in payment of any sales or use tax is returned unpaid, a processing charge of Five Dollars ($5.00) will be added to any amount due and owing. 3.08.17 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 investiga- tions and hearings concerning any matters covered by this section, and may examine any relevant books, papers, re- cords, 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 neces- sary 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. 3.08.18 Hearing, Subpoenas and Witness Fees. All subpoenas issued under the terms of this chapter may be served by any person eighteen (18) years of age or older. 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 Director of Finance, such fees shall be paid in the same manner as other expenses under the terms of this chapter, and when a witness is subpoenaed at the instance of any party to any such proceeding, the Director may require - 6 - 0 i that the cost of service of the subpoena and the fee of the witness be borne by the party at whose instance the witness is summoned. In such case, the Director, in his discretion,, may require a deposit to cover the cost of such service and witness fee. A subpoena issued as aforesaid shall be served in the same manner as a subpoena issued out of a court of record. 3.08.19 Judge Compels Attendance. Any judge of the District Court of the Fifth Judicial District of the State of Colorado, either in term time or vacation, 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 duly authorized agents, by an attachment for contempt, or otherwise, in the same manner as production of evidence may be compelled before said Court. 3.08.20 Sales 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 section. (b) Nothing contained in this subsection shall be construed to prohibit: (1) The delivery to a person, or to his duly authorized representative, of a copy of any return filed in connection with his 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 (3) years and, thereafter until the Director of Finance, with the approval of the Town Manager, shall order them destroyed. 3.08.21 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 fifteen (15) 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 said return or paying said 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 fifteen (15) days from the date of the receipt of said notice. (b) If the return is not filed, or the taxes are not paid, within fifteen (15) days after receipt of said notice, the Director may make an estimate, based upon such information as may be available to him, of the amount of - 7 - 0 0 taxes due for the period or periods for which taxpayer is delinquent and shall add thereto a penalty in an amount equal to ten per cent (10%) of said estimated tax, together with interest on said estimated tax at the rate of one and one-half per cent (1~%) per month from the due date thereof, and may assess said amount against the delinquent taxpayer by giving said 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 for a correction of said 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. 3.08.22 Unpaid Tax A Prior Lien. (a) The taxes imposed by Section 3.08.03 shall be a first and prior lien upon the goods and business fixtures owned or used by any retailer required by the provisions of Section 3.08.12 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 (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. 3.08.23 Sale of Stock or Quitting Business. (a) Any retailer who shall sell out his business or stock of goods or who shall quit business, shall be required to prepare and file a sales 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 said tax due and unpaid, until such time as the said 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 (15) 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 3.08.22 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 liabil- ity for payment of any of said taxes due. 3.08.24 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 official seal directed to any duly authorized revenue collector, or to the sheriff of any county in this state commanding him to levy upon, seize and sell sufficient personal property of the tax debtor which is subject to the - 8 - 0 C`. liens created by Section 3.08.22 found within his 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 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 said lien shall relate back to the date of the first transaction for which any tax is due. 3.08.25 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 goods 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 informa- tion 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 decision thereon. (3) Hearing. An aggrieved applicant may, within ten (10) days after such decision is mailed to him, petition the Director for a hearing on the claim, in which case the Director shall, upon due notice to the applicant, hold a hearing upon such application, taking such information or evidence as may be material, and shall thereafter render his 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 tangible personal property in excess of the rates established by this chapter may apply for a refund of said excess in the manner prescribed above. 3.08.26 Refund Not Assignable. The right of any person to a refund under this chapter shall not be assign- able, 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. - 9 - ! ! 3.08.27 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 at his last known address shall be sufficient for the purpose of this chapter. 3.08.28 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. 3.08.29 Administration. The administration of all the provisions of this chapter is hereby vested in the Director of Finance, who may, with the approval of the Town Manager, prescribe forms and reasonable rules and regu- lations 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 adminis- tration and enforcement hereof, a copy of which forms, rules and regulations shall be made available to the public. 3.08.30 Unlawful Acts. It shall be 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. Section 2. Penalties. Any person, firm or corporation violating any of the provisions of this Ordinance shall be deemed guilty of a violation of this Ordinance and any such person, firm or corporation shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation is committed, continued or permitted, and upon conviction of any such violation, such person, firm or corporation shall be punished by a fine of not more than $500.00 or by imprisonment for not more than 90 days, or by both such fine and imprisonment. Section 3. Severability. If any part or parts hereof are for any reason held to be invalid, such shall not affect the remaining portions of this Ordinance. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, THIS 12th day of November , 1982 and a public hearing on this Ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado, on the 23rd day of November-, 1982 at 7:30 P.M. in the Municipal Building of the Town of Avon, - 10 - 0 0 Colorado. Allan R. ottingh , Mayor atricia J. oyle, Tow Cler INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED THIS 23rd DAY OF November . 1982• a~TTEST: Allan R. N ttingham, ayor atricia J./poyle, T - 11 - STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.M. ON THE 23RD DAY NOVEMBER, 1982 AT THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE N0.#82-27, SERIES OF 1982: AN ORDINANCE RELATING TO REVENUE AND AMENDING THE MUNICIPAL CODE OF THE TOWN OF AVON TO ESTABLISH A SALES TAX RATE OF 4%, TO PROVIDE PROCEDURES FOR SALES TAX COLLECTION AND PROVIDING PENALTIES FOR THE VIOLATION HEREOF A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of the Ordinance. This notice given and passed by order of the Town Council of the Town of Avon, Colorado. Dated this 18th day of November, 1982. T :OP`-AVON, COLORAD B Patricia J oyle, Toyfi Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON THE 15th DAY OF NOVEMBER, 1982: THE MAIN ENTRANCE OF THE POST OFFICE, THE MAIN ENTRANCE TO CITY MARKET, THE PESTER GAS STATION; AND THE MAIN LOBBY IN THE MUNICIPAL BUILDING