CO Code § 39-27-103 (2021)
2021 Colorado Code|Title 39 - Taxation|Article 27 - Gasoline and Special Fuel Tax|Part 1 - Gasoline Tax|§ 39-27-103. Refunds - Penalties - Checkoff - Limits on Collections

  [ ] A credit or refund shall be allowed for the tax paid or accrued on gasoline or special fuel that is lost or destroyed by fire, lightning, flood, windstorm, explosion, accident, or other cause beyond the control of the distributor or transporter of such gasoline or special fuel. This credit or refund shall be allowed only on gasoline or special fuel in quantities of one hundred gallons or more lost or destroyed at any one time. Any loss of gasoline or special fuel while in transit or while being loaded or unloaded shall be subject to credit or refund under this section. After any such loss or destruction, the distributor or transporter shall notify the executive director of the department of revenue within thirty days of such loss or destruction and, within the same deadline, shall file with the executive director proof sufficient to establish the loss or destruction as the executive director may require. (1.5) [ ] A refund shall be allowed to a distributor for the tax paid on gasoline or special fuel pursuant to the provisions of this part 1 that was erroneously paid due to mistake of fact, law, or computation. A distributor who has paid any such tax may, within three years from the date of payment thereof, file with the department of revenue an application for refund of such tax so erroneously paid. Such application shall be on such forms as prescribed by the department of revenue. (1.5) (1.5) [ ] A refund is allowed for the tax paid on gasoline or special fuel pursuant to this part 1 that was erroneously paid due to mistake of fact, law, or computation. The person who has paid any such tax may, within three years from the date of payment thereof, file with the department of revenue an application for refund of such tax so erroneously paid. The application must be on such forms as prescribed by the department of revenue. This subsection (1.5) does not apply to any refund claimable pursuant to subsection (1), (2), (2.5), or (3) of this section.    [ ] A refund shall be made or credit allowed for the tax paid on all gasoline or special fuel that is purchased and used exclusively, pursuant to section 39-27-102 (1)(b) by the United States or any of its agencies or by the state or by any town, city, county, or other political subdivision of the state, including specifically any school district therein, solely in any machines owned or operated by the United States or any of its agencies or by the state or by such town, city, county, school district, or other political subdivision of the state. Except as provided in section 39-27-102 (1)(b)(II), for purchases between governmental entities holding gasoline or special fuel exemption certificates, any other use or any resale for any other use is a violation of paragraph (c) of subsection (3) of this section. (2.5) [ ] Unless purchased ex-tax pursuant to section 39-27-102.5 (2.5), a refund is made pursuant to subsection (3) of this section for the tax paid on the following purchases of gasoline or special fuel:   Products, including kerosene, specially prepared, sold, and used in aircraft operated by scheduled air carriers or commuter airline operators exempt from the federal aviation fuels tax;    Gasoline used by domestic or foreign part 121 air carriers or part 135 commuter air carriers authorized to provide passenger and cargo air transportation services pursuant to the regulations of the office of the secretary of transportation and federal aviation administration of the United States department of transportation. For those air carriers that are certificated by the United States department of transportation for both part 121 air carrier operations and part 135 on-demand operations, this subsection (2.5)(b) shall not apply to the air carrier's part 135 on-demand operations; and    Gasoline used by direct air carriers providing air transportation to authorized public charter operators pursuant to 14 CFR 380. (2.7) [ ] A refund is made pursuant to subsection (3) of this section to any person who purchases gasoline or special fuel upon which the tax imposed by this part 1 has been paid if the gasoline or special fuel is used for the purpose of:   Operating a stationary gas engine;    Operating a motor vehicle on or over fixed rails;    Operating a tractor, truck, or other farm implement or machine for agricultural purposes on a farm or ranch;    Operating a state-licensed agricultural applicator aircraft from a private landing facility used solely and exclusively for agricultural applications, to the extent of fifty percent of taxes payable pursuant to section 39-27-102 (1)(a)(IV);    Operating a motor boat;    Cleaning or dyeing;    Any commercial use other than the operation of a motor vehicle upon the highways of this state and the operation of any aircraft other than the operation of aircraft specified in subsection (2.5) or (2.7)(d) of this section; or    Any other use that entitles a person to a refund under this part 1 or federal law.              [Editor's note: This version of subsection (3)(a)(I) is effective until January 1, 2022.] Any person who purchases gasoline or special fuel and pays the tax thereon at the time of such purchase shall be entitled to a refund by the controller, upon voucher certified by the department of revenue of the amount of such tax paid by him or her upon complying with the applicable conditions and provisions of this section, if the gasoline or special fuel is used for the purpose of: (a) (I)[Editor's note: This version of subsection (3)(a)(I) is effective until January 1, 2022.] Any person who purchases gasoline or special fuel and pays the tax thereon at the time of such purchase shall be entitled to a refund by the controller, upon voucher certified by the department of revenue of the amount of such tax paid by him or her upon complying with the applicable conditions and provisions of this section, if the gasoline or special fuel is used for the purpose of:   Operating a stationary gas engine;    Operating a motor vehicle on or over fixed rails;    Operating a tractor, truck, or other farm implement or machine for agricultural purposes on a farm or ranch;    Operating a state-licensed agricultural applicator aircraft from a private landing facility used solely and exclusively for agricultural applications, to the extent of fifty percent of taxes payable pursuant to section 39-27-102 (1)(a)(IV);    Operating a motor boat;    Operating an aircraft by a part 121 air carrier as defined in section 39-27-101 (19), a part 135 commuter air carrier as defined in section 39-27-101 (20), or a direct air carrier as defined in section 39-27-101 (6) providing transportation to an authorized public charter operator pursuant to 14 CFR 380;    Cleaning or dyeing;    Any commercial use other than the operation of a motor vehicle upon the highways of this state and the operation of any aircraft other than the operation of aircraft specified in sub-subparagraphs (D) and (F) of this subparagraph (I); or    Any other use that entitles a person to a refund under the provisions of this part 1 or federal law.       Notwithstanding any other provision of this section, no person shall be entitled to a refund on purchases of gasoline or special fuel in quantities of less than twenty gallons.    The executive director of the department of revenue shall calculate the amount of the refund allowed by subparagraph (I) of this paragraph (a) for gasoline or special fuel use in accordance with the industry-specific percentages of such fuel use exempted by said subparagraph (I) that can be justified by studies done by industries that use the fuel for such exempt purposes, studies done by other states for refunds of tax imposed on the fuel used for such exempt purposes, or studies done by the department about the historical fuel usage for such exempt purposes. The executive director shall set such percentages by rule promulgated in accordance with article 4 of title 24, C.R.S.  (a.1) Repealed.    (a.3) (I) Any person who purchases or uses gasoline for the propulsion of an aircraft shall be entitled to a refund by the controller if:   The use of such gasoline in such aircraft is subject to the excise tax levied pursuant to section 39-27-102 (1)(a)(IV)(A); and    The excise tax actually paid was the excise tax levied pursuant to any provision of section 39-27-102 (1)(a), excluding section (IV)(A).       The amount of such refund shall be the difference between the amount actually paid and the amount that should have been paid pursuant to section 39-27-102 (1)(a)(IV) as certified by the department of revenue.          All applicants claiming a refund under the provisions of this section shall obtain a refund permit from the department of revenue by application therefor on such forms as it prescribes. Such permits shall be obtained before or at the time the first application for refund is made. The application shall be made under oath and shall contain, among other things, the name, address, and occupation of the applicant, and the nature of the business, and a sufficient description of the machines and equipment in which the gasoline or special fuel is to be used for which a refund may be claimed. Upon approval of the application, the department of revenue shall issue to the applicant a refund permit number, and refund claim forms with the approved exemption percentage to calculate the amount of the refund allowed. The department shall make additional copies of the application for refund forms available to dealers. It is the duty of the department of revenue to keep a record for twenty-four months of all permits issued and cumulative records of the amount of refund claimed and paid thereon.    [ ] Refund permits shall be canceled by the department of revenue if no claim is filed by the permit holder for a period of twenty-four months. If any person makes any false statement in an application for a permit or upon any claim for refund or submits with any claim for refund an invoice that does not represent a bona fide purchase of gasoline or special fuel at the time and place and in the quantity indicated on the invoice, or if any dealer or other person prepares an invoice that does not represent a bona fide sale of gasoline or special fuel at the time and place and in the quantity indicated in the invoice, or if any person uses gasoline or special fuel on which refunds are claimed in any motor vehicle on the public highways of this state, except as provided in subsection (2) of this section, said person or dealer is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment. In addition, the executive director shall forthwith cancel the permit of such person, and such person shall not be issued a new permit within one year after such cancellation.    [ ] Application for a refund under this section shall be made within twelve months after the date of purchase of the gasoline or special fuel but not more than once each calendar quarter. Such application shall be made on forms prescribed and furnished by the executive director, which shall contain such information as the executive director may deem necessary. At the time of making each sale and delivery of gasoline or special fuel upon which a refund of tax may be claimed, the dealer shall prepare an invoice, in duplicate, in a form approved by the executive director and containing such information as the executive director may deem necessary and carrying a serial number that shall not be repeated through any one calendar year. No additional invoices covering the same sale and delivery of gasoline or special fuel shall be issued by the dealer. The original copy of such invoice shall be delivered to the purchaser of the gasoline or special fuel, and, upon payment in full of such invoice, the dealer shall enter thereon the dealer's full name and a notation showing payment thereof. With respect to invoices covering the sale and delivery of gasoline or special fuel to the state or those political subdivisions of the state specified in subsection (2) of this section, it shall not be necessary for the dealer to enter the dealer's name and the notation showing payment thereof. Upon proper application, refund shall be made directly to such political subdivisions upon presentation of the completed refund claim form. Original invoices together with a certification of the date and number of the warrant by which such invoices were paid shall be retained by such political subdivisions for a period of twenty-four months. The duplicate copy of the invoice shall be retained by the dealer for a period of twenty-four months at the place of business where issued, and such duplicate invoices and other records of the dealer shall be available for examination by the executive director or the executive director's representatives. The executive director shall make demand for repayment of any refund of tax that has been illegally or erroneously made to any person, and the executive director is authorized to request the attorney general or any district attorney of the state to institute a suit for collection of any money illegally or erroneously refunded to any person.    [ ] No refund shall be claimed by or allowed to any person on account of any gasoline or special fuel carried from this state in the ordinary fuel tank of a motor vehicle or aircraft. The application for a refund shall be made by the same person who purchased the gasoline or special fuel and paid the tax thereon as shown in the invoice of the seller thereof. The right of any person to a refund under this part 1 shall not be assignable. No refund of the gasoline or special fuel tax shall be claimed by or allowed to any person on any gasoline or special fuel used for propelling motor vehicles operated in whole or in part during the calendar year upon public highways of the state or upon the streets of any city or town in the state, except as otherwise provided in this subsection (3) or subsection (2) of this section.    (Deleted by amendment,L. 2002, p. 553, § 2, effective May 24, 2002.)       Any applicant for refund under the provisions of this section who willfully makes any false statement in connection with an application for a permit or an application for a refund of any taxes, or who uses the gasoline or special fuel other than as stated in the permit and application, shall be punished as provided by section 39-21-118, and by suspension or revocation of his or her permit or license. These penalties shall be in addition to any other penalty imposed by this part 1. If any applicant for refund under the provisions of this section makes any false statement on any application for permit or credit for refund, or submits any invoices on which erasures, changes, alterations, or additions have been made, or that are otherwise incorrect, the executive director shall cancel all or part of any pending claim for refund of such applicant and shall also deduct from any subsequent claims an amount equal to one hundred percent of the amount claimed on any altered or incorrect invoice.    If any person is 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 executive director is empowered to bring appropriate action for recovery of such refunds. A brief summary statement of the above mentioned penalties shall be printed on each form of permit and application for refund.    Repealed.    [ ] Notwithstanding any provision of law to the contrary, the department of revenue shall not collect any penalties or interest related to the tax imposed under this part 1 for liquefied petroleum gas that, from January 1, 2014, until January 1, 2016, is acquired, sold, offered for sale, or used in this state for any purpose whatsoever. The department shall refund any of these prohibited penalties or interest that were collected prior to August 5, 2015.    Editor's note: This version of subsection (1) is effective until January 1, 2022.  (1) (1) [ ] A credit against the tax accrued or payable or a refund of tax paid is allowed for the tax imposed by this part 1 on gasoline or special fuel that is lost or destroyed by fire, lightning, flood, windstorm, explosion, accident, or other cause beyond the control of the distributor or transporter of such gasoline or special fuel. This credit or refund is allowed only on gasoline or special fuel in quantities of one hundred gallons or more lost or destroyed at any one time. Any loss of gasoline or special fuel while in transit or while being loaded or unloaded is subject to credit or refund under this section. After any such loss or destruction, the distributor or transporter must notify the executive director of the department of revenue within thirty days of such loss or destruction and, within the same deadline, must file with the executive director proof sufficient to establish the loss or destruction as the executive director may require. A refund of previously paid tax is allowed to the distributor or transporter in control of the gasoline or special fuel at the time it is lost or destroyed regardless of whether such person paid the tax imposed by this part 1 on the gasoline or special fuel lost or destroyed.  Editor's note: This version of subsection (1) is effective January 1, 2022. Editor's note: This version of subsection (1.5) is effective until January 1, 2022. Editor's note: This version of subsection (1.5) is effective January 1, 2022. Editor's note: This version of subsection (2) is effective until January 1, 2022.  (2) (2) [ ] Unless purchased ex-tax pursuant to section 39-27-102.5 (2)(b) , a refund is made or credit allowed for the tax paid on all gasoline or special fuel that is purchased by the United States or any of its agencies, the state of Colorado or any of its agencies, any town, city, county, or any other political subdivision of the state. Except as provided in section (C), the gasoline or special fuel with respect to which a refund is claimed under this subsection (2) must be used exclusively by the governmental entity in performing its governmental functions and activities in any machines owned or operated by the governmental entity. Any other use or any resale for any other use is a violation of subsection (3)(c) of this section.  Editor's note: This version of subsection (2) is effective January 1, 2022. Editor's note: Subsection (2.5) is effective January 1, 2022. Editor's note: Subsection (2.7) is effective January 1, 2022.  (3)   (a) (I) [Editor's note: This version of subsection (3)(a)(I) is effective January 1, 2022.] Any person who purchases gasoline or special fuel is entitled to a refund by the controller, upon voucher certified by the department of revenue of the amount of such tax paid upon complying with the applicable conditions and provisions of this section.   Editor's note: This version of subsection (3)(c) is effective until March 1, 2022.  (c) [ ] Refund permits shall be canceled by the department of revenue if no claim is filed by the permit holder for a period of twenty-four months. If any person makes any false statement in an application for a permit or upon any claim for refund or submits with any claim for refund an invoice that does not represent a bona fide purchase of gasoline or special fuel at the time and place and in the quantity indicated on the invoice, or if any dealer or other person prepares an invoice that does not represent a bona fide sale of gasoline or special fuel at the time and place and in the quantity indicated in the invoice, or if any person uses gasoline or special fuel on which refunds are claimed in any motor vehicle on the public highways of this state, except as provided in subsection (2) of this section, said person or dealer commits a class 2 misdemeanor. In addition, the executive director shall forthwith cancel the permit of such person, and such person shall not be issued a new permit within one year after such cancellation.  Editor's note: This version of subsection (3)(c) is effective March 1, 2022. Editor's note: This version of subsection (3)(d) is effective until January 1, 2022.  (d) (d) [ ] Application for a refund under this section must be made within twelve months after the date of purchase of the gasoline or special fuel but not more than once each calendar quarter. Such application must be made on forms prescribed and furnished by the executive director of the department of revenue, which contain any information as the executive director may deem necessary. At the time of making each sale and delivery of gasoline or special fuel upon which a refund of tax may be claimed, the dealer shall prepare an invoice, in duplicate, in a form approved by the executive director and containing such information as the executive director may deem necessary and carrying a serial number that shall not be repeated through any one calendar year. No additional invoices covering the same sale and delivery of gasoline or special fuel shall be issued by the dealer. The original copy of such invoice shall be delivered to the purchaser of the gasoline or special fuel, and, upon payment in full of such invoice, the dealer shall enter thereon the dealer's full name and a notation showing payment thereof. With respect to invoices covering the sale and delivery of gasoline or special fuel to the state or those political subdivisions of the state specified in subsection (2) of this section, it is not necessary for the dealer to enter the dealer's name and the notation showing payment thereof. Upon proper application, refund is made directly to such political subdivisions upon presentation of the completed refund claim form. Original invoices together with a certification of the date and number of the warrant by which such invoices were paid must be retained by such political subdivisions for a period of twenty-four months. The duplicate copy of the invoice must be retained by the dealer for a period of twenty-four months at the place of business where issued, and such duplicate invoices and other records of the dealer shall be available for examination by the executive director or the executive director's representatives. The executive director shall make demand for repayment of any refund of tax that has been illegally or erroneously made to any person, and the executive director is authorized to request the attorney general or any district attorney of the state to institute a suit for collection of any money illegally or erroneously refunded to any person.  Editor's note: This version of subsection (3)(d) is effective January 1, 2022. Editor's note: This version of subsection (3)(e) is effective until January 1, 2022.  (e) (e) [ ] Except as provided in subsection (2.5) of this section, no refund shall be claimed by or allowed to any person on account of any gasoline or special fuel carried from this state in the ordinary fuel tank of a motor vehicle or aircraft. The application for a refund must be made by the same person who purchased the gasoline or special fuel upon which the tax imposed by this part 1 has been paid as shown in the invoice of the seller thereof. The right of any person to a refund under this part 1 shall not be assignable. No refund of the gasoline or special fuel tax shall be claimed by or allowed to any person on any gasoline or special fuel used for propelling motor vehicles operated in whole or in part during the calendar year upon public highways of the state or upon the streets of any city or town in the state, except as otherwise provided in this subsection (3) or subsection (2) of this section.  Editor's note: This version of subsection (3)(e) is effective January 1, 2022. Editor's note: This version of subsection (7) is effective until January 1, 2022.  (7) [ ] Repealed.  Editor's note: This version of subsection (7) is effective January 1, 2022.  History. Source: L. 33: P. 720, § 3. CSA: C. 16, § 383. L. 43: P. 192, § 1. L. 51: P. 190, §§ 1, 2. L. 53: P. 157, § 2. CRS 53: § 138-3-3. L. 55: Pp. 912, 913, §§ 1, 1. L. 59: P. 789, § 1. L. 63: Pp. 943, 944, §§ 3, 4. C.R.S. 1963: § 138-2-3. L. 64: P. 812, § 1. L. 67: Pp. 337, 495, §§ 4, 1. L. 79: (3)(a.1) added, p. 1330, § 4, effective May 8; (3)(d) amended, p. 1503, § 1, effective July 1; (1), (2), (3), and (4) amended and (6) repealed, pp. 1477, 1501, §§ 3, 29, effective January 1, 1980. L. 85: (4) amended, p. 1259, § 16, effective January 1, 1986. L. 87: (1.5) added, p. 1464, § 1, effective May 8. L. 88: (2) amended, p. 1331, § 2, effective April 13; (3)(a) and (3)(e) amended and (3)(a.3) added, p. 1092, § 8, effective January 1, 1989. L. 94: (3)(a.1) repealed, p. 1646, § 83, effective May 31. L. 97: (3)(d) amended, p. 55, § 1, effective July 1. L. 2002: (1), (1.5), (2), (3)(a), (3)(b), (3)(c), (3)(d), (3)(e), (3)(f), and (4) amended, p. 553, § 2, effective May 24. L. 2003: (3)(a)(I)(F) and (3)(a)(I)(H) amended, p. 1818, § 4, effective August 6. L. 2005: (2) amended, p. 869, § 3, effective July 1. L. 2012: (1) amended,(HB 12-1178), ch. 79, p. 261, § 1, effective September 1. L. 2013: (3)(a.3) amended,(HB 13-1110), ch. 225, p. 1062, § 8, effective January 1, 2014. L. 2014: (2) amended,(HB 14-1105), ch. 107, p. 394, § 2, effective August 6. L. 2015: (7) added,(HB 15-1228), ch. 315, p. 1287, § 5, effective August 5. L. 2016: (3)(a)(I)(F) amended,(SB 16-189), ch. 210, p. 796, § 115, effective June 6. L. 2021: (1), (1.5), (2), (3)(a)(I), (3)(d), and (3)(e) amended, (2.5) and (2.7) added, and (7) repealed,(HB 21-1322), ch. 453, p. 3007, § 4, effective January 1, 2022; (3)(c) amended,(SB 21-271), ch. 462, p. 3297, § 697, effective March 1, 2022. History. Source: L. 33: P. 720, § 3. CSA: C. 16, § 383. L. 43: P. 192, § 1. L. 51: P. 190, §§ 1, 2. L. 53: P. 157, § 2. CRS 53: § 138-3-3. L. 55: Pp. 912, 913, §§ 1, 1. L. 59: P. 789, § 1. L. 63: Pp. 943, 944, §§ 3, 4. C.R.S. 1963: § 138-2-3. L. 64: P. 812, § 1. L. 67: Pp. 337, 495, §§ 4, 1. L. 79: (3)(a.1) added, p. 1330, § 4, effective May 8; (3)(d) amended, p. 1503, § 1, effective July 1; (1), (2), (3), and (4) amended and (6) repealed, pp. 1477, 1501, §§ 3, 29, effective January 1, 1980. L. 85: (4) amended, p. 1259, § 16, effective January 1, 1986. L. 87: (1.5) added, p. 1464, § 1, effective May 8. L. 88: (2) amended, p. 1331, § 2, effective April 13; (3)(a) and (3)(e) amended and (3)(a.3) added, p. 1092, § 8, effective January 1, 1989. L. 94: (3)(a.1) repealed, p. 1646, § 83, effective May 31. L. 97: (3)(d) amended, p. 55, § 1, effective July 1. L. 2002: (1), (1.5), (2), (3)(a), (3)(b), (3)(c), (3)(d), (3)(e), (3)(f), and (4) amended, p. 553, § 2, effective May 24. L. 2003: (3)(a)(I)(F) and (3)(a)(I)(H) amended, p. 1818, § 4, effective August 6. L. 2005: (2) amended, p. 869, § 3, effective July 1. L. 2012: (1) amended,(HB 12-1178), ch. 79, p. 261, § 1, effective September 1. L. 2013: (3)(a.3) amended,(HB 13-1110), ch. 225, p. 1062, § 8, effective January 1, 2014. L. 2014: (2) amended,(HB 14-1105), ch. 107, p. 394, § 2, effective August 6. L. 2015: (7) added,(HB 15-1228), ch. 315, p. 1287, § 5, effective August 5. L. 2016: (3)(a)(I)(F) amended,(SB 16-189), ch. 210, p. 796, § 115, effective June 6. L. 2021: (1), (1.5), (2), (3)(a)(I), (3)(d), and (3)(e) amended, (2.5) and (2.7) added, and (7) repealed,(HB 21-1322), ch. 453, p. 3007, § 4, effective January 1, 2022; (3)(c) amended,(SB 21-271), ch. 462, p. 3297, § 697, effective March 1, 2022.    Editor's note:    Section 3 of chapter 107 (HB 14-1105), Session Laws of Colorado 2014, provides that changes to this section by the act apply to fuel sales between governmental entities that occur prior to, on, or after August 6, 2014.    Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.     Cross references:    For the legislative declaration contained in the 2003 act amending subsections (3)(a)(I)(F) and (3)(a)(I)(H), see section 1 of chapter 278, Session Laws of Colorado 2003.    For the legislative declaration in the 2013 act amending subsection (3)(a.3), see section 1 of chapter 225, Session Laws of Colorado 2013.    For the legislative declaration in HB 15-1228, see section 1 of chapter 315, Session Laws of Colorado 2015.     ANNOTATION   Right to a refund rests solely on this section, which does not authorize any excuse for a delay in filing the application therefor. Armstrong v. Driscoll Constr. Co., 107 Colo. 218 , 110 P.2d 651 (1941).   Procedure to obtain refund to be strictly followed. Refunds of the tax imposed by the preceding section are a matter of grace, and the procedure outlined by this section to obtain the same must be strictly followed. Armstrong v. Driscoll Constr. Co., 107 Colo. 218 , 110 P.2d 651 (1941).   Section's time limitation undoubtedly is legislative attempt to prevent filing of stale claims and other corrupt practices that so often materialize when state governmental agencies are authorized to make refunds. Armstrong v. Driscoll Constr. Co., 107 Colo. 218 , 110 P.2d 651 (1941).