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HomeMy WebLinkAbout2007-37 Adopting A Use Tax on Construction and Building Materials; Amending Title 2, Revenue and Finance of the Vail Municipal Code by the Addition of Chapter 8, "Use Tax on Construction and Building Materials" ORDINANCE N0.37 Series of 2007 AN ORDINANCE ADOPTING A USE TAX ON CONSTRUCTION AND BUILDING MATERIALS; AMENDING TITLE 2, REVENUE AND FINANCE, VAIL TOWN CODE BY THE ADDITION OF CHAPTER 8 "USE TAX ON CONSTRUCTION AND BUILDING MATERIALS"; AND SETTING FORTH DETAILS IN REGARD THERETO WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado, is a home rule municipal corporation duly organized and existing under laws of the State of Colorado and the Town Charter (the "Charter"); WHEREAS, the members of the Town Council of the Town of Vail (the "Council") have been duly elected and qualified; WHEREAS, at an election held on November 6, 2007, the voters of the Town approved the following ballot question: "SHALL THE TOWN OF VAIL'S TAXES BE INCREASED BY $4,000,000 IN FISCAL YEAR 2008 AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER THROUGH THE ADOPTION OF A USE TAX ON THE PRIVILEGE OF STORING, USING AND/OR CONSUMING IN THE TOWN OF VAIL ANY CONSTRUCTION AND/OR BUILDING MATERIALS PURCHASED AT RETAIL INSIDE OR OUTSIDE THE TOWN, AT THE RATE OF FOUR PERCENT (4%) OF THE RETAIL COST OF SUCH MATERIALS AND SHALL THE TOWN BE AUTHORIZED TO COLLECT AND SPEND SUCH REVENUES, INCLUDING ANY INTEREST AND INVESTMENT INCOME THEREON, EXCLUSIVELY FOR CAPITAL ACQUISITIONS AND CAPITAL PROJECTS IN THE TOWN OF VAIL AS A VOTER APPROVED REVENUE CHANGE NOTWITHSTANDING ANY REVENUE OR EXPENDITURE LIMITATION, INCLUDING THOSE CONTAINED IN ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION?"; and 1 WHEREAS, the following amendments to the Vail Town Code are necessary to provide for the use tax approved at the election. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. Title 2 of the Vail Town Code is hereby amended by the addition of anew Chapter 8 to read as follows: CHAPTER 8: USE TAX ON CONSTRUCTION AND BUILDING MATERIALS Section: 2-8-1: Title, Purpose and Applicability 2-8-2: Definitions 2-8-3: Imposition and Rate of Tax 2-8-4: Collection 2-8-5: Exemptions 2-8-6: Duties and powers of Finance Director 2-8-7: Books, Records, Reports and Returns 2-8-8: Audit 2-8-9: Limitation of Actions 2-8-10: Lien 2-8-11: Penalties and Interest 2-8-12: Remedies not Exclusive 2-8-13: Refunds 2-8-14: Hearing before Finance Director 2-8-15: Disposition of Funds 2-8-16: Violation and Penalty 2-5-1: TITLE, PURPOSE AND APPLICABILITY: (A) This Chapter shall be known as and referred to as "Use Tax on Construction and Building Materials." (B) The purpose of this Chapter is to raise revenue for capital acquisitions and capital projects in the Town and provide a complimentary tax to the Town's sales 2 tax. The Town Council finds that every person who uses or consumes in the Town any construction and building materials is exercising a taxable privilege. (C) Subject to the specific exemptions listed in Section 2-8-5 of this Chapter, the use tax imposed by this Chapter shall apply to any use or consumption in the Town of construction and building materials purchased at retail inside or outside the Town on or after January 1, 2008. 2-8-2: DEFINITIONS: When not otherwise clearly indicated by the context, the following terms, words, and phrases, as used in this Chapter, shall have the following meanings: APPLICATION FOR DEVELOPMENT REVIEW: An application submitted to the Town of Vail Community Development Department for administrative review, or for review by the Town of Vail Design Review Board, Planning & Environmental Commission and/or Town Council, as prescribed by Title 12, Zoning Regulations, Vail Town Code. BUILDING PERMIT: The permit, issued by the Town by authority of the adopted building codes of the Town, allowing the permit holder to construct, enlarge, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert, or replace any electrical, gas, mechanical or plumbing system, which is regulated by the adopted building codes of the Town. A building permit shall not include any permit for demolition or de-watering. CONSTRUCTION AND BUILDING MATERIALS: Tangible persona! property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a completed structure or project. Construction materials include, but are not limited to, such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, 3 steel, stone, stucco, tile, trees, shrubs and other landscaping materials, wall board, wall coping, wall paper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral or inseparable part of a complete structure or project, are not construction and building materials. CONSTRUCTION VALUATION: The total value of the work, including labor and construction and building materials for which the permit is being issued, including electrical, gas, mechanical, plumbing equipment and permanent systems, as determined by the Building Department. CONSUMPTION: The act or process of consuming; it includes waste, destruction, or use. Consumption is the normal use of property for the purpose for which it was intended. FINANCE DIRECTOR: The administrative services director of the Town or such other person designated by the Town; Finance Director shall also include such person's designee. PURCHASE OR SALE: The acquisition for a price by any person of tangible personal property, including installment and credit sales, the exchange of property, as well as the sale thereof for money, and every such transaction, conditional or otherwise, for a consideration constituting a sale. PURCHASE PRICE: The aggregate value in money of anything or things paid or delivered or promised to be paid or delivered by a purchaser to a retailer or any person in the consummation of a retail sale as defined herein, without any deduction therefrom for the cost of the property sold, cost of materials used, labor or service cost, or any other expense whatsoever, and provided that when articles of tangible personal property are sold after manufacture or after having been made to order, the gross value of all materials, labor, service, and profit thereon, shall be included in the said purchase price; provided that the purchase price shall not include any direct tax imposed by the federal government, the State or this Chapter. 4 RETAIL SALE OR PURCHASED AT RETAIL: Any sale or purchase of tangible personal property, except a wholesale sale or purchase for taxable resale. TAXPAYER: Any person from whom a tax is due, or against whom a deficiency is being asserted. USE: The exercise, for any length of time, by any person within the Town of any right, power, or dominion over tangible personal property when purchased at retail from sources either within or without the Town from any person. WHOLESALE SALE: A sale to a licensed retailer, jobber, dealer or other wholesaler for resale. Sales by wholesalers to consumers, including persons who use or consume construction and building materials, as defined by this Chapter, are not wholesale sales. Sales by wholesalers to nonlicensed retailers are not wholesale sales. WHOLESALER: Any person selling to retailers, jobbers, dealers or other wholesalers, for resale, and not for storage, use, consumption or distribution. 2-8-3: IMPOSITION AND RATE OF TAX: (A) There is hereby imposed a use tax on the privilege of using or consuming within the Town construction and building materials purchased at retail inside or outside the Town on or after January 1, 2008; provided that any construction and building materials used or consumed on a project which has received final approval on all required applications for development review prior to January 1, 2008 shall not be subject to the use tax imposed by this Chapter. If any approval expires by its terms after January 1, 2008, such application for development review shall then be subject to the use tax imposed by this Chapter. (B) The use tax imposed by this Chapter shall be at the rate of four percent (4%) of the cost of construction and building materials used or consumed in the Town. For purposes of this Chapter, the cost of construction and building materials is deemed to be fifty percent (50%) of the construction valuation. 5 2-8-4: COLLECTION: The use tax imposed by this Chapter shall be collected prior to the issuance of a building permit. 2-8-5: EXEMPTIONS: The following are exempt from the use tax imposed by this Chapter, provided that the list of exemptions cannot be increased by implication or similarity, and the burden of proof is upon the taxpayer to establish an exemption: (1) The use or consumption of any construction and building materials the sale of which is subject to a retail sales tax imposed by the Town; (2) The use or consumption of construction and building materials purchased for resale in the Town, either in their original form or as an ingredient of a manufactured or compounded product, in the regular course of a business; (3) The use or consumption of construction and building materials by the federal government, the State or its institutions or political subdivisions in their governmental capacities, or by religious or charitable corporations in the conduct of their regular religious or charitable functions; (4) The use or consumption of construction and building materials by a person engaged in the business of manufacturing or compounding for sale, profit, or use of any article, substance, or commodity, which construction and building materials enters into the processing of or becomes an ingredient or component part of the product or service which is manufactured, compounded, or furnished, and the container, label, or the furnished shipping case thereof; (5) The use or consumption of any construction and building materials the sale or use of which has already been subjected to a legally imposed sales or use tax of another statutory or home rule town, city, or city and county equal to or in excess of the use tax imposed herein, in which case a credit shall be granted in an amount equal to the tax paid by reason of the imposition of such sales or use tax, provided that the amount of credit shall not exceed the amount of the use tax imposed by this Chapter; 6 (6) The use or consumption of construction and building materials if a written contract for the purchase thereof was entered into prior to January 1, 2008; (7) The use or consumption of construction and building materials required or made necessary in the performance of any construction contract bid, let, or entered into at any time prior to January 1, 2008; (8) The storage of construction and building materials; (9) The first ten thousand dollars ($10,000) of the construction valuation for a building permit; (10) The use or consumption of construction and building materials in the Town on which the use tax imposed by this Chapter has already been paid; and (11) Any transaction which the Town is prohibited from taxing under applicable law. 2-8-6: DUTIES AND POWERS OF FINANCE DIRECTOR: The administration of this Chapter is hereby vested in the Finance Director, who shall prescribe forms and promulgate rules and regulations for the proper administration and enforcement of this Chapter, and may delegate to any person the power and authority necessary for the proper administration and enforcement of this Chapter. 2-8-7: BOOKS, RECORDS, REPORTS AND RETURNS: (A) Every person liable to the Town for any use tax imposed by this Chapter shall keep and preserve, for a period of three (3) years from the date of issuance of a certificate of occupancy for the improvement on which the use tax was paid, all books, records, reports and returns necessary to determine the amount of tax liability. (B) All such books, records, reports and returns shall be open for examination at any time by the Finance Director. (C) Except by court order or as otherwise provided by law, the Finance Director shall not divulge any information disclosed in any document, report, or return filed pursuant to this Chapter. 7 (D) Nothing in this Section shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection of returns by the Town Attorney or other legal representative of the Town. (E) Notwithstanding this Section, the Finance Director may furnish to the taxing officials of any other state or its political subdivisions, to the State of Colorado or its political subdivisions, or to the United States any information contained in tax returns and related schedules and documents filed pursuant to this Code, or in the report of an auditor investigation made with respect thereto, provided that said jurisdiction agrees to grant similar privileges to the Town, and that such information will only be used for tax purposes. 2-8-8: AUDIT: (A) Within three (3) years from the issuance of any certificate of occupancy for the improvement on which the use tax was paid, the Town may audit the taxpayer or the taxpayer may request an audit. (B) If the recomputed use tax is less than the amount of use tax paid by the taxpayer, the difference shall be refunded to the taxpayer within thirty (30) days of the final determination of the Town. If the recomputed use tax is more than the amount of use tax paid by the taxpayer, the difference, along with any interest and penalty imposed by this Chapter, shall be due and payable by the taxpayer to the Town immediately upon the final determination of the Town. (C) Any audit requested by the taxpayer, regardless of the result, and any audit performed by the Town finding any failure, neglect or refusal to pay any use tax due to the Town, shall be at the taxpayer's sole cost. 2-8-9: LIMITATION OF ACTIONS: (A) Use tax, interest, and penalties shall be assessed, and any action to collect the same shall be commenced, within three (3) years of the issuance of certificate of occupancy for the improvement on which the use tax was paid. (B) Before the expiration of such period of limitation, the taxpayer and the Finance Director may agree in writing to an extension. 8 2-8-10: LIEN: The tax imposed by this Chapter, together with accrued interest and penalties, shall be a first and prior lien on any real property into which the construction and building materials were incorporated. 2-8-11: PENALTIES AND INTEREST: (A) If any person fails, neglects, or refuses to pay the use tax as required by this Chapter, or if any taxpayer fails to remit the proper amount of tax or underpays the tax, penalties, and interest shall be added and imposed in accordance with this Section. (B) If a person neglects or refuses to pay any use tax as required by this Chapter within ten (10) days after the same is due, the Finance Director shall make an estimate, based upon such information as may be available, of the amount of use tax due for the period for which the taxpayer is delinquent and shall add thereto a penalty equal to fifteen dollars ($15.00) or ten percent (10%) of the amount due, whichever is greater, and interest on such delinquent taxes at the rate of one percent (1 per month from the time that payment was due. If any part of the deficiency is due to fraud with the intent to evade the tax, there shall be added a penalty of one hundred percent (100%) 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 ten (10) days after written notice and demand by the Finance Director, and an additional three percent (3%) per month on said amount shall be added from the date payment was due, until paid. (C) The Finance Director may waive, for good cause shown, any penalty or interest. 2-8-12: REMEDIES NOT EXCLUSIVE: In addition to the remedies expressly provided by this Chapter, the Town may pursue any other remedies available at law or in equity. 2-8-13: REFUNDS: (A) A refund shall be made, or a credit allowed, for use tax paid under dispute by any person who is entitled to claim an exemption under Section 2-8-5, if a 9 request for refund is made within sixty (60) days after issuance of the building permit for which the use tax was paid under dispute. (B) A refund shall be made, or a credit allowed, for any use tax paid under this Chapter for construction and building materials used or consumed in the construction of any deed restricted employee housing units, as defined by Title 12, Vail Town Code, which deed restriction additionally includes a perpetual appreciation cap on either maximum rental rate or sales price, as approved by the Town. No request for refund or credit shall be processed by the Town until the applicable deed restriction has been recorded. A request for a refund or credit for deed restricted employee housing units shall be submitted within sixty (60) days of issuance of the last certificate of occupancy for such deed restricted employee housing units. (C) An application for refund of tax paid in error or by mistake shall be made within three years (3) after the date of use or consumption of the construction and building materials for which the refund is claimed. (D) The right of any person to a refund under this Chapter shall not be assignable and the application for refund shall be filed by the taxpayer. (E) The burden of proving the right to a refund shall be on the person claiming the refund. (F) Upon receipt of a timely application, the Finance Director shall promptly examine the application, make a decision, and notify the applicant in writing of the decision. (G) If the Finance Director finds that the use tax, penalty, or interest paid by any taxpayer is in excess of the amount due or has been erroneously collected, the Finance Director shall rule in favor of the taxpayer for refund, regardless of whether or not such sum was paid under dispute. The Finance Director shall issue payment to the taxpayer; provided that the Finance Director shall retain a statement setting forth the reason for the refund. If there is an unpaid balance of use tax, penalties, or interest owed by such taxpayer for any other period, the overpayment shall be applied against the amount due and any excess shall be refunded to the taxpayer. 10 2-8-14: HEARING BEFORE FINANCE DIRECTOR: (A) A taxpayer may file a written request for a hearing on any assessment or denial of refund request within ten (10) days of the decision of the Finance Director. The request for hearing shall set forth the taxpayer's reasons for the request and the disputed amount. (B) The hearing shall be held and a final decision issued within ninety (90) days of the date of the request, unless a delay is caused by the taxpayer, in which case the hearing shall be held and final decision shall be issued within one hundred eighty (180) days of the request. At least fifteen (15) days prior to the hearing, the Finance Director shall notify the taxpayer in writing of the time and place of the hearing. (C) At the hearing, the Finance Director may administer oaths and take testimony, and the taxpayer may assert any facts, make any arguments, and file any briefs or affidavits he or she believes pertinent to his or her cause. (D) Based on the evidence presented, the Finance Director may modify, refund or abate the use tax, penalty, or interest. (E) Upon rejection, in whole or in part of the claim for refund, or upon a finding that an assessment in whole or in part has been made against the taxpayer validly, the Finance Director shall send a hearing determination notice to the taxpayer in compliance with Section 29-2-106.1(2)(a), C.R.S. (F) The decision of the Finance Director shall be final, subject only to the State hearing and appeal procedures outlined in Section 29-2-106.1, C.R.S. and judicial review. Unless a State hearing is requested, an appeal is filed or judicial review is sought, the use tax, together with interest thereon and penalties, if any, shall be paid within thirty (30) days after mailing of the Finance Director's hearing determination notice. (G) If a State hearing is requested, an appeal filed or judicial review is sought, the Finance Director may require payment of the tax or the posting of security only as provided in Section 29-2-106.1, C.R.S. 11 2-8-15: DISPOSITION OF FUNDS: (A) All revenues derived from the use tax imposed by this Chapter, less costs of collection and administration, shall be placed in the Town's Capital Projects Fund and used for capital acquisitions and capital projects. (B) There shall be budgeted from the monies received from the imposition of the use tax an amount necessary to reimburse the Town for administrative and clerical expenses incurred in the collection and administration of the use tax. 2-8-16: VIOLATION AND PENALTY: (A) It is a violation of this Chapter for any person subject to the use tax levied by this Chapter to submit any false or fraudulent use tax information to the Town, to make any false statement on any document used to calculate taxes due under this Chapter, to fail or refuse to make payment of any taxes due, to evade the payment of any taxes due, or to aid or abet another in any attempt to evade the payment of any taxes due under this Chapter. (B) In addition to any other penalty provided in this Chapter, any person who violates any provision of this Chapter shall be punished as provided in Chapter 1- 4-1 of this Code. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 4. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall 12 not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December, 2007, and a public hearing for second reading of this Ordinance set for the 18th day of December, 2007, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. ~ Dick Cleveland, Town Mayor Attest: i~ ~ 1 ~ ~ SEAT, `L?orel i Donaldson, Town Clerk cO~ORA~ READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED IN FULL this 18th day of December, 2007 Dick Cleveland, Town Mayor ATTEST: ~0~1lI,OF ~ ~ :SEAL orel~i Donaldson, Town Clerk cO~ORP~O . 13 t 2227 PROOF OF PUBLICATION STATE OF COLORADO } SS. COUNTY OF EAGLE } I, Steve Pope, do solemnly swear that I am a qualified representative of the Vail Daily. That the same Daily newspaper printed, in whole or in part and published in the County of Eagle, State of Colorado, and has a general circulation therein; that said newspaper has been published continuously and uninterruptedly in said County of Eagle for a period of more than fifty-two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement and that said newspaper has published the requested legal notice and advertisement as requested. The Vail Daily is an accepted legal advertising medium, only for jurisdictions operating under Colorado's Home Rule provision. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said daily newspaper for the period of 1 consecutive insertions; and that the first publication of said notice was in the issue of said newspaper dated 12/22/2007 and that the last publication of said notice was in the issue of said newspaper dated 12/22/2007. In witness whereof has here unto set my hand this 2$th day of December, 2007 ~n Pub ' r/fU~enera~ Manager/Editor Subscribed and sworn to before me, a notary public in and for the County of Eagle, State of Colorado this 28th I, day o ecember, 2007. ~ C ~ ~ ~ Pamela Joan Schultz t~ SC Notary Public yG ~ NpTARY `N My Commission expires: November 1, 2011 ~ N ~ O y~ PUB1.1C ° Q` I acknowledge the accuracy of the 12.22.007 publication of Ordinance No. 37, Series of 2007. - l~~ Matt Mire, Tow Attorney cam` Ju Camp, Find~ector f `age C32 -Saturday, December 22, 2007 THE VAIL DAILY 970.949.0555/vaildaily.com _ _ - - ~ ~ _ _ _ ~ C C _ ~cgats ORDINANCE NO. 37 Series of 2007 AN ORDINANCE ADOPTING A USE TAX ON CONSTRUCTION AND BUILDING MATERIALS; AMENDING TITLE 2, REVENUE AND FINANCE, VAIL TOWN CODE BY THE ADDITION OF CHAPTER 8 "USE TAX ON CONSTRUCTION AND BUILDING MATERI- ALS'; AND SETTING FORTH DETAILS IN REGARD THERETO WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado. is a home rule municipal corporation duly organized and existing under laws of the State of Colorado and the Town Chader (the iChaneri), WHEREAS, the members of the Town Council of the Town of Vail (Ihe "Council") have been duly elected and qualified WHEREAS, at an election held on November 6 2007 the voters of the Town approved the following ballot question "SHALL THE TOWN OF VAILiS TAXES BE INCREASED BY $4,000.000 IN FISCAL YEAR 2008 AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER THROUGH THE ADOPTION OF A USE TAX ON THE PRIVILEGE OF STORING, USING AND/OR CONSUMING IN THE TOWN OF VAIL ANV CONSTRUCTION AND/OR BUILDING MATERIALS PURCHASED AT RETAIL INSIDE OR OUTSIDE THE TOWN, AT THE RATE OF FOUR PERCENT (49oj OF THE RETAIL COST OF SUCH MATERIALS AND SHALL THE TOWN BE AUTHORIZED TO COLLECT AND SPEND SUCH RCVENUES, INCLUDING ANV INTERCST AND INVESTMENT IN- COMFTHEREON, EXCLUSIVELY FOR CAPITAL AGOUISITIONS AND CAPITAL PROJECTS IN THE TOWN OF VAIL AS A VOTER APPROVED REVENUE CHANGE NOTWITHSTANDING ANV REVENUE OR EXPENDITURE LIMITATION, INCLUDING THOSE CONTAINED IN ARTICLE SECTION 20 OF THE COLORADO CONSTITUTIONn'; and WHEREAS, the lollowin ndments to the Vail Town Code are necessary to p ovide for the use tax approved at the election. NOW. THEREFORE, BEg IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL COLORADO THAT Seed t.Title 2 of the Vail Town Code Is hereby amended by the addition of a new Chapter B to read as follows CHAPTER 8: USE TAX ON CONSTRUCTION AND BUILDING MATERIALS Section: 2-84 Title. Purpose and Applicability 2-6-2'. Dellnitions 2-8-3.Imposiuon and Rate of iaz 2-8-4 Collection 2-B-5. Exemptions 2-8-6 Duties and powers of Finance Director 2-8-7:Books, Records Reports and Returns 2-8-8 Audit 2-B-9. Limitation of Actions 2-6-10: Lien 2-8-11 Penalties and Interest 2-8-1 Z. Remedies not Exclusive 2-8-13.Refunds 2-8-14.Heanng before Finance Director 2-8-15.Disposrtion of Funds 2-8-[S. Violation and Penalty 2-e-1:TITLE, PURPOSE AND APPLICABILITY: (AlThis Chapter shall be known as and referred to as IUse Tax on Construction and Building Materials.i (B) the purpose of this Chapter Is to raise revenue for capital acquisitions and capital protects m the Town and provide a complimentary lax to the Town's sales tax. The Town Council hods that every person who uses or consumes in Ihe Town any construction and build- 9 materials is exercising ataxable privilege. (ClSubject to the specifn; exemptions listed in Section ?-8-5 0l flits Chapter, the use tax imposed by this Chapter shall apply to any use or consumption in the Town of construction and huiltling materials purchased at retail inside or outside the Town on or after January 1 2008. 2-e•2:DEFINITIONS: When not otherwise clearly' dcated by the context the lollowng terms, wards. and phrases. used in this Chappter, shall have the following nreanings: APPLICATION FOR DEVELOPMENT REVIEW'. An application submitted to the Town of VaACOmmumfy Development Department for administrative review. or for review by the Town of Vail Design Review Board. Planning & Environmental Commission and/or Town Counctl. as p ascribed by Tkla 12. Zoning Re lotions, Vail Town Code. BUILDING PERMIT The permit issued by the Town by authority of the adopted building codes of the Town allowing the p rmit holder to consNUCf. enlarge, repair. move, demolish or change the occu~ancy of a building or structure, or to erect, install, enlarge. alter, epair. remove. convert, or replace any electrical, gas, mechanical or plumbing system, which is regulated by the adopted building codes of the Town, q building permit shall not include any permit for demo ikon or de•watering. CONSTRUCTION AND BUILDING MATERIALS. Tang9 ble personal property which. when combined with other tangible personal property, loses its identify to become an integral arttl inseparable part of a completed structure or project. Construction matenals include, but are not limited to, such Things as: asphalt, backs, bwltlers' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace Inserts, electrical heating and cooling egwpment flooring. glass, gravel, insulation, lath. lead, lime, lumber. macadam, millwork, mortar, oil, paint, gaping, pipe valves and pipe fittings, plaster. plumbing fixtures. putty, reinforcing mesh, road base, roofiny, sand, s nitary se a pipe, sheet metal, site lighting, steel, scone. stucco, tile. trees shrubs and other landscaping matenals. wall board. wall coping, ell paper we they slnpp,ng, wire netting and screen, water mains and meters, arttl wood preserver The above materials when used /orrforms, or other items which do not remain as an integral or Inseparable pan of a complete structure or prolecL are not construct on arttl building materials. CONSTRUCTION VALUATION. The total value of the work, including labor and construction and building materials for which the permit is being Issued, including electrical, gas, mechanical. plumbing equipment and permanent systems as determined by the Building "~oartment. VSUMPTION' The act or process of consuming', it Includes waste, destruction, or use. Consumption is the normal use of propperty tar the purpose for which it was mtentled, tNCE DIRECTOR: The administrative services director of the Town or such other person designated by the Town Finance D actor shall also include such person's designee, CHASE OR SALE' The acquisition for a price by any person of tangible personal property, Including Installment and credit sales. the exchange of property as well as the sale thereof for money, and every such transaction, conddional or otherwise, for a consideration nstituting a sale. PURCHASE PRICE. The aggregate value In money of anything or thing paid or delivered or promised to be paid or delivered by a purchaser to a retailer or any person in the consummation of a retail sale as tlefned herein, without any deduction therefrom for the cost of the property sold, cost of materials used. labor or service cost, or any other expense whatsoever, and provided that when articles of tangible personal property are sold aher manufacture or alter having been made to order the gross value of all materials, labor, service, d profit thereon, shall be included In the said purchase price, provided that the purchase price shall not include any direct tax imposed by the federal government. the State or this Chapter RETAIL SALE OR PURCHASED AT RETAIL. Any sale or purchase o1 tangible personal properly, except a wholesale sale or purchase for taxable resale. TAXPAYER: Any person from whom a tax is due, or against whom a deficiency is being asserted. USE The exercise, for any length of vine, by any person within the Town of any right, power, or dominion over tangible personal property hen purchased at retail from sources either within or without the Town from any person. WHOLESALE SALE. A sale to a licensed retailer, robber gaoler or other whclesalar for resale. Sales by wholesalers to consumers. Including persons who use or consume construction arttl building materials. as deTned by this Chapter. are not wholesale sales. Sales by wholesalers to nonlicensed retailers are not wholesale sales. WHOLESALER Any person selling to retailers, jobbers. dealers cr other wholesalers. for resale. and not for storage. use. consumption or distribution. 2-e-3:IMPOSITION AND RATE OF TAX: (A)There is hereby imposed a use tax on the privilege of usin or consuming wdhin the Town construction and building matenals purchased at retail inside or outside the Town on or after January 1, 2008, provided that any construction and building materials used or -onsumad on a project which has received final approval on al~ required applications for development review poor to January 7 2008 shall not Ue subject to the use iaz imposed by This Chapter. II any approval expires by its terms after January 7, 2008, such application for development review shall then be subject to the use tax imposed by this Chapter. (B)The use tax imposed by this Chapter shall be a! the rate of tour percent (4 i) of the cost of construction and budding matenals used or consumed in the Town. For purposes of This Chapter, the cost of construction and bulld~ng materials is deemed to be idly percent (50%) of the consiruchon valuation. 2•e-4:COLLECTION: The use tax imposed by This Chapter shall be collected poor to the Issuance of a building permit. 2-eS:EXEMPT10N5: The following are exempt from the use tax imposed by this Chapter, Provided that the list of exemptions cannot be increased by implicallon or slmilanry, and the burden of proof is upon the taxpayer to establish an exemption (1IThe use or consumption of any construction and building materials the sale of which is sublIact to a retail sales iaz Imposed by the Town. (2)The use or consumption of construction and building materials p rchased for resale In the T wit, either in their original form or as an mgredlent of a manufactured or compounded product, In the regular course of a business; (3)The use or consumption of construction and building materials by the federal government, the State or Its institutions or political subdlislons m their governmental capacities, or by religious or charitable corporehpns In the conduct of their reguar religious or charitable functions; (4)The use or consumption of construction and building materials by a person engaged in the business of manufactunn9 o compounding for sale, profit, or use of any article, substance. or commodity, which construction and building materials enters into the processing of or becomes an Ingredient or component part of the p duct or service which is manufactured. mpounded, or furnished. a tl the container. label, or the furnished shipping case thereof; (5)The use or consumption of any onstruction and building materials the sale or use of which has already keen subjected to a legally imposed sales or use tax of another statutory or home rule town. city or city and county eq I to or in excess of the use tax imposed herein, in which case a credit shall he granted in an amount eq Ito the tax paid by reason of ilia impos~hon of such sales or use tax. provided that the amount of credit shall not exceed the amount of the use iaz imposed by this Chapter: (6)The use or consumption of construction and building materiah if a written contract for the purchase thereof was entered into prior [o January 1, 2008. (7 The use or consumption of construction and building materials required or made necessary in the pertormance of any construction contract hid, let. or entered into at any time prior to January 1, 2008. (8)The storage of construction end building materials, (9)The first ten thousand dollars ($10,000) of the construction valuation for a budding permit: (10)The use or consumption of construction and building materials in the Town on which the use iaz Imposed by this Chapter has already been paid, and (11)Any transaction whwh the Town is prohibited Irom razing under applicable law. 2•B~:DUTIES AND POWERS OF FINANCE DIRECTOR: The dminisiralion of this Chapter .s hereby vested in the Finance Duector, who shall prescribe forms and promulgate rules and regulations for the proper adminis[rat~on and enforcement of this Chapter. arttl may delegate Ip any person the power and authority necessary for the proper administrallon arttl enforcement of this Chapter 2.8-7: BOOKS, RECORDS, REPORTS AND RETURNS: (A)Every person liable to the Town for any use tax imposed by [his Chapter shall keep and preserve, for a period of three (3) years Irom the date of issuance of a certificate of occupancy for the improvement on which the use tax was paid, all books, records, reports and turns necessary to determine the amount of iaz Ilahlllry. (B)All such books. records, reports and returns shall be open far examination at any time by the Finance Director ICIExcepf by court order or as otherwise provided by law. the Finance Director shall not diving any information disclosed m any document, report, or return filed pursuant to this Chapter. (D)Nofhing m This Section shall be construed to prohibit the publication of statistics so classified as to prevent the itlentitication of particular reports or returns and Ihe items thereof, or the inspection of reurns by the Town Attorney or other legal representative of the Town. (E)N [withstanding this Section. the Finance Director may furnish to the razing officials of any Cher stale or Its pollboal subdivisions, to the State of Colorado or its political subdivisions, or to the United States any information comainetl m tax returns and related schedules and documents filed pursuant to this Code, or in the report of an audit or investigation made with respect thereto. provided that said lurisdichon agrees to grant similar privileges to the Town, arttl that such information will only be used /or iaz puryoses. 2-8.8:AUDIT: (A)Within three (3) years from the issuance of any certificate of occupancy for the improvement on which the use tan was paid. the Town may audit the tazpayar or the taxpayer may request an audit (8)If the recomputed use fax is less than the amount of use tax paid by the taxpayer, the difference shall be refunded fo the tazpayar within Thirty (30~ days of the final determination of the Town. If the recomputed use iaz Is more than (he amount of use iaz paid by the taxpayer. the dlnerenca, along with any Interest and penalty Imposed by this Chapter, shalt be due and payable by the taxpayer fo the Town Immediate y upon the final determination of the Town. (C)Any audit requested by the tazpayar. regardless of the result. and any audU performed by the Town finding any failure, neglect or refusal to pay any use iaz duo to the Town shell be a2 the taxpayer's sole cost. 2a9:LIM1TAT10N OF ACTIONS: (A)Us tax. Interest, and penalties shall be assessed, and any action to collect the same shall be commenced. within three (3) years of the issuance of certificate of occupancy far the improvement on which the use tax was paid. (8)Betore the expiration of such period of IlmltatlOn, the taxpayer and the Finance Director may agree in wnimg tc an extension. 2-e-10: LIEN: The tax imposed by this Chappter, tog Thar with accrued Interest and penalties. shall de a first and prior ban on any real properly into which the construction and building materials ware incorporated. 2-8-11:PENALTIES AND INTEREST: (Ajll any person tails, negkcis or refuses to pay the use tax as required by this Chapter, or d any taxpayer fails to remit the proper amount of iaz or underyays the iaz, penalties, and interest shall be added and imposed in accordance with this Section. (R)Ii person neglects or refuses to p y a y e iaz as required by this Chapter within ten (70) days aher the same is due, the Finance Director shall make an estimate. based up n such information as may he available. f the amount of use tax due for the period for filch the taxpayer is delinquent arttl shall add thereto a penalty equal to fifteen dollars ($15.00) or ten percent (10 a) of the amount due, whichever is g eater, arttl interest on such delinquent taxes at the rate of one percent (1%) per month from the time that payment was due. If any part of th¢ deficiency due to fraud with the Intent to evade the iaz, there shall be added a penalty o/ one hundred percent (700%) of the total amount of the deficiency, rid In such case the whole amount of Me iaz unpaid, including the addmons shall become due and payable ten 110) days after written notice and demand by the Finance Director, and an additional three percent (39,1 per month on said amount shall be added from the date payment was due, until paid. IC)The Finance Director may waive, /or good cause shown, any penalty or interest. 2-e-12:REMEDIES NO7 EXCLUSIVE: ^ addition to the remedies expressly provided by this Chapter, the Town may pursue any other remedies available at law or in equity. 3:REFUNDS: fund shall be made, or a credit allowed, far use tax paid under dispute by any person who Is entitled to claim an ezemptiort under Section 2-8-5 d a request for refund is made within slaty (60) days after issuance of the building permit for which the use tax was paid eflundtshall be made. or a credit allowed. for any use tax paid under this Chapter for construction and building materials used or consumed in the constructwn of any deed restricted employee housing units, as dellned by Title 12, Vail Town Code, which dead r¢sMCtion additionally codes a perpetual appredation cap o either maximum rental rate or sales price, as approved by the Town. No request for refund or credit shall be processed by the Town until the applicable deed resfdchon has been recorged. A request far a etund or credit for deed restricted employee housing units shall be submitted within sixty (60) days of issuance of the last certificate of occupancy for such deed restricted employee housing units. (C1An application for refund of iaz paid in error or by mistake shall be made within three years (3) after the date of use or consumpton of the construction and building materials for which the refund Is claimed. (OIThe right of any poerson to a refund under this Chapter shall not be assignable and the appllcaton for refund shall he filed by the taxpayer. (E)The burden of p vin9 the right to a refund shall be on the person claimng the refund. (F)Upon receipt of timely application. the Finance Director shall promptly examine the applroahon. make a decison, and notity the applicant in wntin of [he decision. (G)If the Finance Director finds That the use tax, penalty. or interest paid by any taxpayer is in excess of the amount due or has been erroneously ol~ected, the Finance Director shall rule in favor of the lazpayer for refund. regardless of whether or not such sum was paid under dispute. The Finance D'rteclor shall Issue payment to the lazpayer provided That Ihe Frtance Director shall retain a statement setting torch Ihe reason for the refund. If there is an unpaid balance of use tax, penalties. or interest owed by such taxpayer for any other period. the overyayment shall he applied against the amount due and any excess shell be refunded to the lazpayer, 2•e-14:HEARING BEFORE FINANCE DIRECTOR: (A)A lazpayer may file a written request for a hearing on any assessment ar denial of refund request within ten (10) days of the decision of the Finance D'vector. The request for hearing shall set forth the taxpayers reasons for the request arttl the disputed amount. (B)The hearing shall be held and a final decision issued within ornery (90) days of the date of the request. unless a delay is caused by the taxpayer in which case the hearing shall be held and final decision shall be issued within one hundred eighty (1801 days of the eq st. At least fifteen (15) days prior to the hearing, the Finance Director shall notity the taxpayer in writing of the time and place of the hearing. IC)At the hearing, the Finance Director ma administer oaths and take testimony, and the taxpayer may art any facts. make any arguments, and file any briefs or anidavits he or she believes pertinent to his or her cause. (D)eased on the evidence presented, the FYnance Director may moldy. etund or abate the use iaz, penalty r'mterest. (E)Upon rejection, in whale or In part of the claim for refund, or upon a finding that an assessment in whole or in part has been made against the taxpayer validly, the Finance Director shall send a hearing tleferminafion notice to ilia taxpayer in compliance with Section 29-2-106,1 (2)(a), C.R.S. (F)The decision of the Finance Director shall be (nal, subject only to the State hearing and appeal procedures outlined In Seaton 29-2-166.1. C.R.S. and judic~el review. Unless a State nearing Is requested, an appeal is tiled or judicial review is sough!, the use tax. toggether wdh interest thereon and penalties, 8 any, shall be paid within thirtrtyy (30) days after mailing of the Finance Directors hearing determination notice. ~G)0 6:DISPOSa1TION¢OFgFUNDS.an appeal filed or judicial review is sougfit. the Finance Director may require payment of the tax or the posting of security only as provided in Section 29-2-106.7, C.R.S. (A)All revenues derived from the use tax imposed by this Chapter, less costs of collection and administration, shah be placed in the Town's Capital Projects Fund and used for capital acquisitions and capital projects. (BlThera shall be budgeted from the monies received from the imposition of the use tax an amount necessary to reimburse the Town for administrative and clerical expenses incurred in the collection and administration of the use tax. 2•&18:VIOLATION AND PENALTY: (A)lt is a violation of this Chapter for any person sublect to the use iaz levied by this Chapter to submit any false or fraudulent use tax information to the Town. to make any false statement on any document used tc calculate taxes due under [his Chapter, to fail or refuse to make paymeat of any fazes due, to evade the payment of any taxes due, or to aid or abet another in any attempt to evade the payment of any razes due under this Chapter. (B)I addition to any other penahy provided in this Chapter any person who violates any provision of this Chapter shall be punished as provided in Chapter f-4-1 of this Code. Section 2.17 any pan, section. subsection. sentence, clause or phrase of this ordinance is for any reason held to be invalid such decision shall not effect the validity of the remaining portions of this ordinance and the Town Counctl hereby declares II would have passed this ordinance, and each part. section. s bsecticn. sentence clause or phrase thereof regardless of the fact that any one or more parts actions, subsections. ntences. clauses or phrases be declared Invalid. Section 3.The Town Council hereby finds. determines and declares that this ordinance Is necessary and proper for the health, safety and welfare of the Town of Vail and the Inhabitants thereof. Secton 4.The amendmem of any provision of the Town Code as p ovlded in this ortllnance shall not affect any right which has accrued. any duty imposed, any violation that occurred prior to the effective date hereof a y prosecution commenced, nor any other action or proceeding s commenced under or by virtue of the provision amended. The amentlmenl of any provision hereby shall not revive any provision or any ortllnance previously repealed or superseded unless exp essly stated herein. Secti 5 All bylaws, orders, resolutions and ordinances, or pans ihereol, Inconsistent herewith are repealed to the extent only of such inconsistency. This repealer snail not be construed to revise any bylaw, order. resolution or ordinance, or part thereof, th¢retolore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 4th day of December. 2007 and a public hearing for second reading of this Ordinance set far the 18th day of December, 2007, ,n the Council Chambers of the Vail Municipal Building, Vail, Colorado, Dick Cleveland, Town MayorAnest~. Lorelei Donaldson, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED IN FULL this 16th day of December, 200) Dick Cleveland. Town Mayor ATTESTLOrelei Donaldson, Town Clerk Published in the VaA Daily September 21, 2007 (997190)