CO Code § 29-2-106.1 (2021)
2021 Colorado Code|Title 29 - Government - Local|Article 2 - County and Municipal Sales or Use Tax|§ 29-2-106.1. Deficiency Notice - Dispute Resolution

  The general assembly hereby finds, determines, and declares that the enforcement of sales and use taxes can affect persons and entities across the jurisdictional boundaries of taxing jurisdictions and that dispute resolution is a matter of statewide concern for which the procedures set forth in this section shall be applied uniformly throughout the state.      When a local government asserts that sales or use taxes are due in an amount greater than the amount paid by a taxpayer, such local government shall mail a deficiency notice to the taxpayer by certified mail. The deficiency notice shall state the additional local sales and use taxes due. The deficiency notice shall contain notification, in clear and conspicuous type, of the time limit to file a protest to the notice and that the taxpayer has the right to elect a hearing on the deficiency pursuant to subsection (3) of this section. Any protest to the deficiency notice shall be filed with the local government within thirty days after the date of the notice.    The taxpayer shall also have the right to elect a hearing pursuant to subsection (3) of this section on a local government's denial of such taxpayer's claim for a refund of sales or use tax paid.    The taxpayer shall request the hearing pursuant to subsection (3) of this section within thirty days after the taxpayer's exhaustion of local remedies. For purposes of this paragraph (c), “exhaustion of local remedies” means that one of the following events has occurred:   The taxpayer has timely requested in writing a hearing before the local government, and such local government has held such hearing and issued a final decision thereon. Such hearing, if any, shall be held and any decision thereon issued within one hundred eighty days after the taxpayer's request in writing therefor or within such further time as the taxpayer and local government may agree upon in writing.    The taxpayer and local government agree in writing that no hearing before the local government will be held, or that no final decision will issue from the local government. Such written agreement shall state that the taxpayer exhausted local remedies in accordance with this section, shall identify the date of such exhaustion, and shall advise the taxpayer of the right to pursue further review pursuant to subsection (3) or (8) of this section within thirty days after such exhaustion.    One hundred eighty days or more after the date of the taxpayer's request for a hearing, the local government notifies the taxpayer in writing that the local government does not intend to conduct a hearing. In such instance, the written notification shall also state that the taxpayer exhausted local remedies in accordance with this section, that such exhaustion occurred on the date of the written notification, and that the taxpayer may pursue further review pursuant to subsection (3) or (8) of this section within thirty days after such exhaustion.       In the event the taxpayer has timely requested in writing a hearing before the local government and none of the events described in paragraph (c) of this subsection (2) have occurred, the taxpayer may request a hearing pursuant to subsection (3) of this section at any time after the period prescribed in subparagraph (I) of paragraph (c) of this subsection (2).    Any hearing before a local government 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 local government may submit a brief.         If a taxpayer satisfies the requirements of paragraph (c) of subsection (2) of this section, the taxpayer may request the executive director of the department of revenue to conduct a 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 set forth in section 39-21-103, C.R.S. Any local government to which the deficiency notice being appealed claims taxes are due, or, in the case of a claim for refund, the local government that denied such claim, shall be notified by the executive director that a hearing is scheduled and shall be allowed to participate in the hearing as a party.    If the taxpayer requests a hearing before the executive director, then the local government whose decision is being appealed may not require a bond or payment of tax in lieu thereof; but such local government may require a bond or payment of tax in lieu thereof filed with and payable to the local government in the manner provided in section 39-21-111, C.R.S., prior to the hearing before such local government or the executive director if either such local government reasonably finds that collection of the tax will be jeopardized by delay or the taxpayer requests a postponement of the hearing before such local government or the executive director, other than on account of a death, physical illness or injury, or catastrophe, which substantially impairs the taxpayer's ability to present his case. In the event that payment of the tax or posting of a bond is required by the local government, the taxpayer, after payment of the tax or posting of the bond, may appeal such decision of the local government to the executive director and shall be granted an expedited hearing on such appeal pursuant to section 39-21-103 (6), C.R.S., and the executive director may affirm, reverse, or modify such decision.    If the taxpayer appeals the decision issued pursuant to this subsection (3) in the manner provided in section 39-21-105, C.R.S., then the taxpayer shall pay the tax to or post a bond with the local government whose decision is being appealed in the manner provided in that section.    Any hearings before the executive director of the department of revenue or his delegate shall be de novo, without regard to the decision of the local government. The taxpayer shall have the burden of proof in any such hearings.       In the event that all parties to a hearing arrive at a settlement prior to the hearing, such parties may agree to cancel such hearing. No party shall thereafter have a right to a hearing before the executive director on the deficiency notice or claim for refund. By agreement of all parties to the hearing, the hearing may be canceled and the matter may be determined by the executive director upon written briefs submitted by the parties in the same manner as provided in section 39-21-103 (7) and (8), C.R.S.      If the taxpayer asserts that all or part of a sales or use tax which is the subject of the hearing has been paid to or is due to another local government, then such other local government shall be joined as a party to the hearing. Neither the taxpayer nor the assessing local government needs to file a claim for refund with such other local government in order to pursue the remedy provided by this subsection (5)(a). If the executive director determines that the disputed tax was paid, but to the wrong local government, then the taxpayer shall be relieved of the tax due up to the amount paid by the taxpayer to the wrong local government together with an abatement of interest thereon and all penalties.    Notwithstanding section 29-2-106 (8), the periods open or closed to assessment or refund under the ordinances of the local governments, under sections 39-26-210, 39-21-107 (1), 39-26-125, and 39-26-703, or under an intergovernmental transfer agreement may not bar any of the remedies set forth in subsections (5)(a) and (6) of this section.      For any taxable event occurring on or after January 1, 2018, if the taxpayer receives a notice from a local government that the taxpayer must pay sales or use tax to that local government for a particular taxable event and the taxpayer fails to comply with the instructions in the notice with respect to the same type of taxable event that occurs more than ninety days after the taxpayer receives the notice, then the taxpayer may not take advantage of the remedy allowed in subsection (5)(a) of this section for that particular type of taxable event identified in the notice that occurs more than ninety days after the taxpayer received the notice, unless the taxpayer receives, or has previously received, a similar notice described in subsection (5)(c)(II) of this section from another local government that provides contrary instructions. (c) (I) For any taxable event occurring on or after January 1, 2018, if the taxpayer receives a notice from a local government that the taxpayer must pay sales or use tax to that local government for a particular taxable event and the taxpayer fails to comply with the instructions in the notice with respect to the same type of taxable event that occurs more than ninety days after the taxpayer receives the notice, then the taxpayer may not take advantage of the remedy allowed in subsection (5)(a) of this section for that particular type of taxable event identified in the notice that occurs more than ninety days after the taxpayer received the notice, unless the taxpayer receives, or has previously received, a similar notice described in subsection (5)(c)(II) of this section from another local government that provides contrary instructions.    The notice required in subsection (5)(c)(I) of this section must:   Be in writing and be signed by an appropriate local government official;    Be sent by certified or registered mail or be delivered by a nationally recognized courier service that provides a receipt upon delivery;    Instruct the taxpayer to pay sales or use tax on the particular type of taxable event identified in the notice to the local government; and    Include notice that failure to comply with the instructions will result in the taxpayer being denied the remedy allowed in subsection (5)(a) of this section for the particular type of taxable event identified in the notice that occurs more than ninety days after the taxpayer received the notice.             If the amount paid exceeds the tax found to be due, then the government in receipt of such payment shall refund the overpayment to the taxpayer within thirty days of the executive director's decision, together with interest thereon from the date the taxpayer made the payment until the date the overpayment is refunded, unless a timely appeal is taken by such government pursuant to subsection (7) of this section. If the amount paid is found to be less than the taxes due, then the taxpayer shall pay the deficiency, less any amount paid in lieu of bond, to the appropriate local government within thirty days of the executive director's decision with interest from the date full payment was due until the date that the deficiency is paid, unless a timely appeal is taken by the taxpayer pursuant to subsection (7) of this section. A local government which is found to have erroneously received payment from the taxpayer shall forward such payment to the appropriate local government within thirty days of the executive director's decision with interest from the date the amount was received from the taxpayer until the date the amount was forwarded to the appropriate local government, unless a timely appeal is taken pursuant to subsection (7) of this section by a local government which is found to have erroneously received payment from the taxpayer. All interest payable pursuant to this subsection (6) shall be at the same rate which applies to deficiency payments.    Appeals from the final determination of the executive director may be taken in the same manner as provided in and shall be governed by section 39-21-105, C.R.S., by any party bound by the executive director's decision. Any such appeal shall be heard de novo and shall be heard as provided in section 39-21-105, C.R.S., except as follows: If the appellant is a local government, the taxpayer shall have the burden of proof as to all factual matters, and the appellant shall have the burden with respect to any legal determination of the executive director of the department of revenue which the appellant seeks to reverse; except that the local government shall always have the burden of proof with respect to the issue of whether the taxpayer has been guilty of fraud with intent to evade tax and with respect to the issue of whether the taxpayer is liable as a transferee of property of another taxpayer, but not to show that the transferor taxpayer was liable for the tax; and except that the executive director may, at his request, be a party to any such appeal.      If a deficiency notice or claim for refund involves only one local government, in lieu of requesting a hearing pursuant to subsection (3) of this section, the taxpayer may appeal such deficiency or denial of a claim for refund to the district court.    The taxpayer shall appeal to the district court pursuant to this subsection (8) within thirty days after the taxpayer's exhaustion of local remedies. For purposes of this subsection (8), “exhaustion of local remedies” means that one of the following events has occurred:   The taxpayer has timely requested in writing a hearing before the local government, and such local government 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 local government may submit a brief. Such hearing, if any, shall be held and any decision thereon issued within one hundred eighty days of the taxpayer's request in writing therefor or within such further time as the taxpayer and local government may agree upon in writing.    The taxpayer and local government agree in writing that no hearing before the local government will be held or that no final decision will issue from the local government. Such written agreement shall state that the taxpayer exhausted local remedies in accordance with this section, shall identify the date of such exhaustion, and shall advise the taxpayer of the right to pursue further review pursuant to subsection (3) of this section or this subsection (8) within thirty days after such exhaustion.    One hundred eighty days or more after the date of the taxpayer's request for a hearing, the local government notifies the taxpayer in writing that the local government does not intend to conduct a hearing. In such instance, the written notification shall also state that the taxpayer exhausted local remedies in accordance with this section, that such exhaustion occurred on the date of the written notification, and that the taxpayer may pursue further review pursuant to subsection (3) of this section or this subsection (8) within thirty days after such exhaustion.       In the event the taxpayer has timely requested in writing a hearing before the local government and none of the events described in paragraph (b) of this subsection (8) have occurred, the taxpayer may appeal such deficiency or denial of a claim for refund to the district court at any time after the period prescribed in subparagraph (I) of paragraph (b) of this subsection (8).    An appeal pursuant to this subsection (8) must be conducted in the same manner as provided in section 39-21-105, C.R.S.; except that venue is in the district court of the county where the local government whose decision is being appealed is located, and any deposit made pursuant to section (4), (5), or (8)(a)(III), C.R.S., must be made with the local government whose decision is being appealed.       In lieu of electing a hearing pursuant to this section on a notice of deficiency or claim for refund, a taxpayer may pursue judicial review of a local government's final decision thereon as otherwise provided in such local government's ordinance.    As used in this section, “local government” means home rule and statutory cities, towns, cities and counties, and counties.    If any local government which collects its own sales or use tax to which the deficiency notice claims taxes are due reasonably finds that the collection of the tax will be jeopardized by delay, it may utilize the procedures set forth in section 39-21-111, C.R.S.; however, utilization of such procedures shall not preclude the taxpayer from appealing to the executive director pursuant to subsection (3) of this section.     History. Source: L. 85: Entire section added, p. 1032, § 3, effective January 1, 1996. L. 2010: (2)(a) amended,(SB 10-142), ch. 51, p. 194, § 1, effective August 11. L. 2011: (2)(c), (3)(a), and (8) amended and (2)(d) and (2)(e) added,(SB 11-086), ch. 52, p. 135, § 1, effective July 1. L. 2013: (8)(d) amended,(HB 13-1300), ch. 316, p. 1692, § 90, effective August 7. L. 2016: (3)(b), (3)(c), and (8)(d) amended,(SB 16-036), ch. 292, p. 1182, § 4, effective August 10. L. 2017: (5) amended,(SB 17-112), ch. 144, p. 482, § 1, effective April 18.    ANNOTATION   Party claiming that administrative methods for challenging municipal sales and use tax as set forth in municipal code were unconstitutional and conflicted with provisions of this section is not required to exhaust all administrative remedies prior to seeking declaratory judgment on issue. Fred Schmid Appliance & Tel. v. Denver, 811 P.2d 31 (Colo. 1991).   A local government cannot undercut or supplant the right to judicial review afforded by this section by precluding de novo review. Service Merch. Co., Inc. v. Schwartzberg, 971 P.2d 654 (Colo. App. 1997).   Under subsection (9), a local government that enacts an alternative avenue for appeals of sales and use tax assessments must comply with the procedure it creates for such appeals. Where a local government has created a sales or use tax assessment appeals process that requires a taxpayer to obtain a final decision rendered after a hearing as a prerequisite to an appeal, the local government may not deprive the taxpayer of the right to an appeal by refusing to hold a hearing and issue a final decision. Asphalt Specialties, Co. v. City of Commerce City, 218 P.3d 741 (Colo. App. 2009).   Appeals taken from locally imposed use or sales taxes are a matter of statewide concern, and therefore subject to the appellate procedures of this section rather than the appellate procedures of local rules. Walgreen Co. v. Charnes, 819 P.2d 1039 (Colo. 1991).   General assembly has determined the need for a statewide uniform process to avoid inconsistent treatment of taxpayers and confusing and conflicting remedies. MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010).   Section supersedes municipal code that requires an additional formal hearing. The section contains its own controlling prescription for “exhaustion of local remedies” that defines and controls the appellate process in local sales and use tax appeals. MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010).   In appeal involving challenge to sales and use tax provisions of municipal code, appropriate remedy on appeal is not to remand to district court for de novo review under this section since taxpayer pursued review under municipal code. Arapahoe Roofing & Sheet Metal v. Denver, 831 P.2d 451 (Colo. 1992).   Challenge of sufficiency of notice of assessment issued pursuant to this section is moot issue when taxpayer failed to timely file petition for hearing to challenge sufficiency. Am. Drug Store v. Denver, 831 P.2d 465 (Colo. 1992).   Taxpayer could appeal after 90-day wait period under section because the local government had no provisions for making a final decision following an informal hearing. MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010).   Subsections (5) and (6) do not absolve taxpayer of tax liability if expiration of the applicable statute of limitations prevents a taxpayer from forcing the local government to which the taxpayer erroneously paid taxes to forward the taxes to the local government that should have received them. Qwest Corp. v. City of Northglenn, 2014 COA 55 , 351 P.3d 505.   Applied in Ball Aerospace & Techno. v. City of Boulder, 2012 COA 153 , 304 P.3d 609.