An Ordinance of the Town of Palisade, Colorado, Imposing an Occupation Tax of the Provision of Retail Marijuana by Retail Marijuana Stores, Sales Transactions by Retail Marijuana Products Manufacturers, and Sales by Retail Marijuana Cultivation Facilities within the Town of Palisade; Setting Forth the Purposes of Such Tax; Establishing Administrative and Enforcement Procedures; Providing for an Effective Date of Such Tax; and Amending Article V of the Palisade Municipal Code Concerning the Town’s Medical Marijuana Center Occupation Tax.Advertisment
WHEREAS, Section 31-15-501(1)(c), C.R.S., and other applicable law authorizes the Town of Palisade to license, regulate and tax the owners of businesses on the privilege of conducting various classes of businesses within the Town; and WHEREAS, in the case of Town of Eagle v. Scheibe, 10 P.3d 648 (Colo. 2000), the Colorado Supreme Court held that an occupation tax may be imposed to compensate a municipality for the use of its services and facilities, and specifically upheld the validity of an occupation tax on a specific class of businesses which is levied at a fixed rate; and WHEREAS, the registered electors of the Town of Palisade at the November 4, 2014 coordinated election approved the imposition of an occupation tax in the amount of $5.00 per each sales transaction that is less than $100.00; $10.00 per each sales transaction that is $100.00 or over but less than $500.00; and $25.00 per each sales transaction that is $500.00 or over by any retail marijuana store, by any retail marijuana cultivation facility, and by any retail marijuana product manufacturing facility in accordance with the terms and conditions of this Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF PALISADE, COLORADO: Section 1. That Article VI of the Palisade Municipal Code, entitled Medical Marijuana Center Occupation Tax, is hereby repealed in its entirety and reenacted to read as follows: ARTICLE VI Marijuana Occupation Tax. Sec. 6-128. Purpose. Sec. 6-129. Definitions. Sec. 6-130. Levy of Tax. Sec. 6-131. Exemptions. Sec. 6-132. Collection of Tax. Sec. 6-133. Audit of Records. Sec. 6-134. Tax Overpayments and Deficiencies. Sec. 6-135. Tax Information Confidential. Sec. 6-136. Forms and Regulations. Sec. 6-137. Enforcement and Penalties. Sec. 6-138. Tax Lien. Sec. 6-139. Recovery of Unpaid Tax. Sec. 6-140. Status of Unpaid Tax in Bankruptcy and Receivership. Sec. 6-141. Hearings, Subpoenas and Witness Fees. Sec. 6-142. Depositions. Sec. 6-143. Statute of Limitations. Sec. 6-144. Exemption from Revenue Limitation. Sec. 6-128. Purpose. The Board of Trustees of the Town of Palisade hereby finds, determines and declares: (a) For the purposes of this Article, every person that furnishes Medical Marijuana to a patient or a Medical Marijuana-Infused Products Manufacturer or to other Medical Marijuana Centers for consideration in the Town of Palisade, every Retail Marijuana Store that furnishes Retail Marijuana, Retail Marijuana Products or Retail Marijuana Accessories to a consumer for consideration in the Town of Palisade, every Retail Marijuana Cultivation Facility that cultivates and sells Retail Marijuana to a Retail Marijuana Store or Retail Marijuana Product Manufacturer for consideration in the Town of Palisade, and every Retail Marijuana Product Manufacturing Facility that furnishes Retail Marijuana Products to Retail Marijuana Stores for consideration in the Town of Palisade is exercising a taxable privilege. The purpose of this Article is to impose a tax which will be paid by every Vendor providing Medical Marijuana, Retail Marijuana, Retail Marijuana Products and cultivated Retail Marijuana in the Town of Palisade, which tax will provide revenues for the Town of Palisade; (b) The provision of Medical Marijuana to Patients and certain Medical Marijuana Businesses and the provision of Retail Marijuana and Retail Marijuana Products to consumers, Retail Marijuana Stores and Retail Marijuana Product Manufacturers results in the increased use of Town streets and rights-of-way, increased traffic, increased demands upon municipal services such as police protection and has a substantial affect upon the health, safety and welfare of the citizens of the Town of Palisade and upon the expenditures budgeted by the Town, which is a matter of local concern; and (c) The classification of medical marijuana centers, retail marijuana stores, medical and retail marijuana-infused products manufacturing facilities and retail marijuana cultivation facilities as separate businesses and occupations is reasonable, proper, uniform and nondiscriminatory; and the taxable amount hereby levied is reasonable, proper, uniform, nondiscriminatory, and necessary Sec. 6-129. Definitions. The following words and phrases used in this Article shall have the following meanings unless the context clearly indicates otherwise: Medical Marijuana means marijuana that is grown and sold for a purpose authorized by Article XVIII, Section 14 of the Colorado Constitution. Medical Marijuana Business means the use of a property or portion thereof, for the production, cultivation, manufacture, storage, distribution, acquisition or sale of marijuana, including the use of property for Medical Marijuana Centers, Medical Marijuana-Infused Products Manufacturers and Optional Premises Cultivation Facilities, whether any such use is for profit or not for profit. Medical Marijuana Center means a person licensed to operate a business as described in the Colorado Medical Marijuana Code that sells Medical Marijuana and Medical MarijuanaInfused Products at retail to registered patients or primary caregivers as defined in Article XVIII, Section 14 of the Colorado Constitution, but is not a primary caregiver. Medical Marijuana-Infused Products Manufacturer means a person licensed pursuant to the Colorado Medical Marijuana Code to operate a business manufacturing medical marijuanainfused products. Patient has the meaning set forth in Article XVIII, Section 14(1)(c) of the Colorado Constitution. Primary Caregiver has the meaning set forth in Article XVIII, Section 14(1)(f) of the Colorado Constitution. Person means an individual, partnership, firm, joint enterprise, limited liability company, corporation, estate or trust, or any group or combination acting as a unit, but shall not include the United States of America, the State of Colorado and any political subdivision thereof. Retail Marijuana means marijuana that is cultivated, manufactured, distributed or sold by a licensed Retail Marijuana Business. Retail Marijuana Business means the use of a property or portion thereof, for the production, cultivation, manufacture, storage, distribution, acquisition or sale of retail marijuana including the use of property for Retail Marijuana Stores, Retail Marijuana Cultivation Facilities and Retail Marijuana Products Manufacturing Facilities, whether any such use is for profit or not-for-profit. Retail Marijuana Cultivation Facility means a “marijuana cultivation facility” as defined in Section 16(2)(h) of Article XVIII of the Colorado Constitution XVIII of the Colorado Constitution that are produced at a Retail Marijuana Products Manufacturing Facility. Retail Marijuana Product Manufacturing Facility means an entity licensed to purchase marijuana; manufacture, prepare and package marijuana products; and sell marijuana and marijuana products to other marijuana product manufacturing facilities and to Retail Marijuana Stores, but not to consumers. Retail Marijuana Store means an entity licensed to purchase marijuana from marijuana cultivation facilities and marijuana products from marijuana product manufacturing facilities and to sell marijuana and marijuana products at retail to consumers. Sale means the furnishing for consideration by any person of Medical Marijuana or Retail Marijuana within the Town. Tax means the tax payable by the Vendor or the aggregate amount of taxes due from a vendor during the period for which the Vendor is required to pay the occupation tax on the sales of Medical Marijuana or Retail Marijuana under this Article. Taxpayer means the Vendor obligated to pay the tax under the terms of this Article. Vendor means a person furnishing Medical Marijuana to a Patient or to a Medical Marijuana-Infused Products Manufacturer or to a Medical Marijuana Center for consideration within the Town, or a person furnishing cultivated Retail Marijuana to a Retail Marijuana Store or to a Retail Marijuana Products Manufacturer, or furnishing Retail Marijuana or Retail Marijuana Products to consumers for consideration. Sec. 6-130. Levy of Taxes. (a) Medical Marijuana Centers. Pursuant to the authority granted by the Town’s registered electors voting at the November 1, 2011 coordinated election, there is hereby levied by the Town of Palisade an occupation tax on: (1) The provision of Medical Marijuana by Medical Marijuana Centers to Patients for consideration within the Town of Palisade; (2) The provision of Medical Marijuana-Infused Products to other Medical Marijuana Centers for consideration, within the Town of Palisade; (3) The provision of Medical Marijuana by Medical Marijuana Optional Premises Cultivation Facilities to Medical Marijuana Centers or Medical Marijuana-Infused Products Manufacturers within the Town of Palisade. In the amount of $5.00 per sales transaction. (b) Retail Marijuana Businesses. Pursuant to the authority granted by the Town’s registered electors voting at the November 8, 2016 coordinated election, there is hereby levied by the Town of Palisade an occupation tax on: (1) The provision of Retail Marijuana, Retail Marijuana Products, and Retail Marijuana accessories by any Retail Marijuana Store for consideration within the Town of Palisade; (2) The provision of Retail Marijuana by a Retail Marijuana Cultivation Facility to any Retail Marijuana Store, Retail Marijuana Product Manufacturing Facility, or other Retail Marijuana Cultivation Facility for consideration within the Town of Palisade; (3) The provision of Retail Marijuana and Retail Marijuana Products by any Retail Marijuana Product Manufacturing Facility to Retail Marijuana Stores or other Retail Marijuana Product Manufacturing Facilities for consideration within the Town of Palisade. In the amount of $5.00 per sales transaction that is less than $100.00; $10.00 per sales transaction that is $100.00 or over but less than $500.00; and $25.00 per sales transaction that is $500.00 or more. Sec. 6-131. Exemptions. This Article shall not be applicable to transactions between a Patient and a Primary Caregiver when acting in accordance with all applicable provisions of Article XVIII, Section 14(1)(c) of the Colorado Constitution, Section 12-43.3-101, et. seq., C.R.S., Section 25-1.5-106, C.R.S., and the regulations promulgated by the Colorado Department of Public Health and Environment, Colorado Department of Revenue or any other agency with regulatory authority concerning Medical Marijuana. Sec. 6-132. Collection of Tax. (a) Every Vendor providing Medical Marijuana or Retail Marijuana taxable under this Article shall remit such tax on or before the tenth (10th) day of each month on account of Medical Marijuana or Retail Marijuana transactions in the preceding month. Said payment shall be accompanied by a return which shall contain such information and be in such form as the Town Clerk may prescribe. (b) The burden of proving that any transaction is exempt from the tax shall be upon the Vendor. (c) If the accounting methods regularly employed by the Vendor in the transaction of business, or other conditions, are such that the returns aforesaid made on a calendar month basis will impose unnecessary hardship, the Town Clerk may, upon request of the Vendor, accept returns at such intervals as will, in the Town Clerk’s opinion, better suit the convenience of the Vendor and will not jeopardize the collection of the tax; provided, however, the Town Clerk may by rule permit a Vendor whose monthly tax obligation is less than one hundred dollars ($100.00) to make returns and pay taxes at intervals not greater than three (3) months. (d) It shall be the duty of every Vendor to maintain, keep and preserve suitable records of all sales made by the Vendor and such other books or accounts as may be required by the Town Clerk in order to determine the amount of the tax of which the Vendor is liable under this Article. It shall be the duty of every such Vendor to keep and preserve for a period of three (3) years all such books, invoices and other records and the same shall be open for examination by the Town Clerk or designee. (e) The tax to be paid by a Vendor shall not be stated and charged separately from the sale price of Medical Marijuana or Retail Marijuana on any record thereof at the time when the sale is made or at the time when evidence of the sale is issued, such as a receipt provided, a Vendor may indicate on the record or receipt the sale price “includes Town of Palisade Occupation Tax.” Sec. 6-133. Audit of Records. (a) For the purpose of ascertaining the correct amount of the occupation tax on Medical Marijuana or Retail Marijuana sales transactions due from any person engaged in such Medical Marijuana or Retail Marijuana business in the Town under this Article, the Town Clerk or an authorized agent, may conduct an audit by examining any relevant books, accounts and records of such person. (b) All books, invoices, accounts and other records shall be made available within the Town limits and be open at any time during regular business hours for examination by the Town Clerk or an authorized agent. If any taxpayer refuses to voluntarily furnish any of the foregoing information when requested, the Town Clerk may issue a subpoena to require that the taxpayer or its representative attend a hearing or produce any such books, accounts and records for examination. Any such subpoena may be enforced by the Palisade Municipal Court. (c) Any exempt person claiming an exemption under the provisions of this Article is subject to audit in the same manner as any other person engaged in the sale of Medical Marijuana or Retail Marijuana in the Town. Sec. 6-134. Tax Overpayments and Deficiencies. An application for refund of tax monies paid in error or by mistake shall be made within three (3) years after the date of payment for which the refund is claimed. If the Town Clerk determines that within three (3) years of the due date, a Vendor overpaid the occupation tax on the provision of Medical Marijuana or Retail Marijuana, she shall process a refund or allow a credit against a future remittance from the same taxpayer. If at any time the Town Clerk determines the amount paid is less than the amount due under this Article, the difference together with the interest shall be paid by the Medical Marijuana Business or Retail Marijuana Business within ten (10) days after receiving written notice and demand from the Town Clerk. The Town Clerk may extend that time for good cause. Sec. 6-135. Tax Information Confidential. (a) All specific information gained under the provisions of this Article which is used to determine the tax due from a taxpayer, whether furnished by the taxpayer or obtained through audit, shall be treated by the Town and its officers, employees or legal representatives as confidential. Except as directed by judicial order or as provided in this Article, no Town officer, employee, or legal representative shall divulge any confidential information. If directed by judicial order, the officials charged with the custody of such confidential information shall be required to provide only such information as is directly involved in the action or proceeding. Any Town officer or employee who shall knowingly divulge any information classified herein as confidential, in any manner, except in accordance with proper judicial order, or as otherwise provided in this Article or by law, shall be guilty of a violation hereof. (b) The Town Clerk may furnish to officials of any other governmental entity who may be owed sales tax any confidential information, provided that said jurisdiction enters into an agreement with the Town to grant reciprocal privileges to the Town. (c) Nothing contained in this Section shall be construed to prohibit the delivery to a taxpayer or its duly authorized representative a copy of such confidential information relating to such taxpayer, the publication of statistics so classified as to prevent the identification of particular taxpayers, or the inspection of such confidential information by an officer, employee, or legal representative of the Town. Sec. 6-136. Forms and Regulations. The Town Clerk is hereby authorized to prescribe forms and promulgate rules and regulations to aid in the making of returns, the ascertainment, assessment and collection of said occupation tax on the provision of Medical Marijuana or Retail Marijuana and in particular and without limiting the general language of this Article, to provide for: (a) A form of report on the provision of Medical Marijuana or Retail Marijuana to be supplied to all Vendors; (b) The records which Medical Marijuana Businesses providing Medical Marijuana and Medical Marijuana-Infused Products and Retail Marijuana Businesses providing Retail Marijuana, Retail Marijuana Products and Retail Marijuana accessories are to keep concerning the tax imposed by this Article. Sec. 6-137. Enforcement and Penalties. (a) It shall be unlawful for any person to intentionally, knowingly, or recklessly fail to pay the taxes imposed by this Article, or to make any false or fraudulent return, or for any person to otherwise violate any provisions of this Article. Any person convicted of a violation of this Article shall be deemed guilty of a municipal offense, punishable by a fine of up to $300.00 and 90 days imprisonment or by both such fine and imprisonment. Each day, or portion thereof, that any violation of this Article continues shall constitute a separate offense. (b) A penalty in the amount of ten percent (10%) of the tax due or the sum of ten dollars ($10.00), whichever is greater, shall be imposed upon the Medical Marijuana Business or Retail Marijuana Business and become due in the event the tax is not remitted by the tenth (10th) day of the month as required by this Article, or such other date as prescribed by the Town Clerk, and one and one-half percent (1.5%) interest shall accrue each month on the unpaid balance. The Town Clerk is hereby authorized to waive, for good cause shown, any penalty assessed. (c) If any part of a deficiency is due to negligence or intentional disregard of regulations, but without intent to defraud, there shall be added ten percent (10%) of the total amount of the deficiency, and interest, from the Medical Marijuana Business or Retail Marijuana Business required to file a return. If any part of the deficiency is due to fraud with the intent to evade the tax, then there shall be added fifty percent (50%) of the total amount of the deficiency together with interest and in such case, the whole amount of the unpaid tax, including the additions, shall become due and payable ten (10) days after written notice and demand by the Town Clerk. (d) If any Medical Marijuana Business or Retail Marijuana Business fails to make a return and pay the tax imposed by this Article, the Town may make an estimate, based upon available information of the amount of tax due and add the penalty and interest provided above. The Town shall mail notice of such estimate, by certified mail, to the Medical Marijuana Business or Retail Marijuana Business at its address as indicated in the Town records. Such estimate shall thereupon become an assessment, and such assessment shall be final and due and payable from the taxpayer to the Town Clerk ten (10) days from the date of service of the notice or the date of mailing by certified mail; provided, however, that within the ten (10) day period such delinquent taxpayer may petition the Town Clerk for a revision or modification of such assessment and shall, within such ten (10) day period, furnish the Town Clerk the documents, facts and figures showing the correct amount of such taxes due and owing. (e) Such petition shall be in writing and the facts and figures submitted shall be submitted in writing, and shall be given by the taxpayer under penalty of perjury. Thereupon, the Town Clerk may modify such assessment in accordance with the facts submitted in order to effectuate the provisions of this Article. Such assessment shall be considered the final order of the Town Clerk, and may be reviewed by a Court of competent jurisdiction under the Rule 106(a)(4) of the Colorado Rules of Civil Procedure, provided that the taxpayer gives written notice to the Town Clerk of such intention within ten (10) days after receipt of the final order of assessment. Sec. 6-138. Tax Lien. (a) The taxes imposed by this Article, together with the interest and penalties herein provided and the costs of collection which may be incurred, shall be, and until paid, remain a first and prior lien superior to all other liens on all of the tangible personal property of a taxpayer within the Town and may be foreclosed by seizing under distraint warrant and selling so much thereof as may be necessary to discharge the lien. Such distraint warrant may be issued by the Town Clerk whenever the taxpayer is in default in the payment of the tax, interest, penalty or costs. Such warrant may be served and the goods subject to such lien seized by any Town peace officer, the Mesa County Sheriff or any duly authorized employee of the Town. The property so seized may be sold by the agency seizing the same or by the Town Clerk at public auction after ten (10) days have passed following an advertised notice in a newspaper published in the Town, in the same manner as is prescribed by law in respect to executions against property upon judgment of a court of record, and the remedies of garnishment shall apply. (b) The taxes imposed by this Article shall be, and remain, a first and prior lien superior to all other liens on the real property and appurtenant premises at which the taxable transactions occurred. Sec. 6-139. Recovery of Unpaid Tax. (a) The Town Clerk may also treat any such taxes, penalties, costs or interest due and unpaid as a debt due the Town from the taxpayer. (b) In case of failure to pay the taxes, or any portion thereof, or any penalty, costs or interest thereon, when due, the Town Clerk may recover at law the amount of such taxes, penalties, costs, the reasonable value of any salaried attorney’s time, including legal assistant’s time, or the reasonable attorney’s fees, including legal assistant’s fees, charged, plus interest, in any county or district court of the county wherein the taxpayer resides or had a principal place of business (at the time the tax became due) having jurisdiction of the amount sought to be collected. (c) The return of the taxpayer or the assessment made by the Town Clerk shall be prima facie proof of the amount due. (d) Such actions may be actions in attachment, and writs of attachment may be issued to the Mesa County Sheriff, as the case may be, and in any such proceeding no bond shall be required of the Town Clerk, nor shall any Town peace officer or sheriff require of the Town Clerk an indemnifying bond for executing the writ of attachment or writ of execution upon any judgment entered in such proceedings. The Town Clerk may prosecute appeals in such cases without the necessity of providing a bond therefor. (e) It shall be the duty of the Town Attorney, when requested by the Town Clerk, to commence an action for the recovery of taxes due under this Article and this remedy shall be in addition to all other existing remedies, or remedies provided in this Article. (f) The Town may certify the amount of any delinquent tax, plus interest, penalties and the costs of collection, as a charge against the property at which the taxable transaction occurred to the Mesa County Treasurer for collection in the same manner as delinquent ad valorem taxes pursuant to Section 31-20-105, C.R.S. Sec. 6-140. Status of Unpaid Tax in Bankruptcy and Receivership. Whenever the business or property of a taxpayer subject to this Article shall be placed in receivership, bankruptcy or assignment for the benefit of creditors, or seized under distraint for taxes, all taxes, penalties and interest imposed by this Article and for which the taxpayer is in any way liable under the terms of this Article shall be a prior and preferred lien against all the property of the taxpayer, except as to other tax liens which have attached prior to the filing of the notice, and no sheriff, receiver, assignee or other officer shall sell the property of any person subject to this Article under process or order of any court, without first ascertaining from the Town Clerk the amount of any taxes due and payable under this Article, and if there be any such taxes due, owing and unpaid, it shall be the duty of such officer to first pay the amount of the taxes out of the proceeds of such sale before making payment of any monies to any judgment creditor or other claimants of whatsoever kind or nature, except the costs of the proceedings and other preexisting tax liens as above provided. Sec. 6-141. Hearings, Subpoenas and Witness Fees. (a) Hearings before the Town Clerk pursuant to provisions in this Article shall be held in a manner that provides due process of law. Any subpoena issued pursuant to this Article may be enforced by the Palisade Municipal Judge pursuant to Section 13-10-112(2), C.R.S. The fees of witnesses for attendance at hearings shall be the same as the fees of witnesses before the district court, such fees to be paid when the witness is excused from further attendance. When the witness is subpoenaed at the instance of the Town Clerk, such fees shall be paid in the same manner as other expenses under the terms of this Article, and when a witness is subpoenaed at the instance of any party to any such proceeding, the Town Clerk may require that the cost of service of the subpoena and the fee of the witness be borne by the party at whose instance the witness is summoned. In such case, the Town Clerk, at her discretion, may require a deposit to cover the cost of such service and witness fees. A subpoena issued as aforesaid shall be served in the same manner as a subpoena issued out of a court of record. (b) The Palisade Municipal Judge, upon the application of the Town Clerk or the taxpayer, may compel the attendance of witnesses, the production of books, papers, records or memoranda, and the giving of testimony before the Town Clerk or any duly authorized hearing officers, by an action for contempt, or otherwise, in the same manner as production of evidence may be compelled before the Court. Sec. 6-142. Depositions. The Town Clerk or any party in an investigation or hearing before the Town Clerk may cause the deposition of witnesses residing within or without the State to be taken in the manner prescribed by law for like depositions in civil actions in courts of this State and to that end compel the attendance of witnesses and the production of books, papers, records or memoranda. Sec. 6-143. Statute of Limitation. (a) Except as otherwise provided in this Section, the taxes for any period, together with interest thereon and penalties with respect thereto, imposed by this Article shall not be assessed, nor shall notice of lien be filed, or distraint warrant be issued, or suit for collection be instituted, or any other action to collect the same be commenced, more than three (3) years after the date on which the tax was or is payable, nor shall any lien continue after such period, except for taxes assessed before the expiration of such three (3) year period when the notice of lien with respect to which has been filed prior to the expiration of such period. (b) In case of a false or fraudulent return with intent to evade taxation, the tax, together with interest and penalties thereon, may be assessed, or proceedings for the collection of such taxes may be commenced at any time. (c) Before the expiration of such period of limitation, the taxpayer and the Town Clerk may agree in writing to an extension thereof, and the period so agreed on may be extended by subsequent agreements in writing. Sec. 6-144. Exemption from Revenue Limitation. In accordance with the approval of the registered electors voting at the November 4, 2014 coordinated election, the revenues derived from the tax imposed by this Chapter on Medical Marijuana Businesses shall be collected and spent as a voter approved revenue change, notwithstanding any revenue or expenditure limitations contained in Article X, Section 20, of the Colorado Constitution. In accordance with the approval of the registered electors voting at the November 8, 2016 coordinated election, the revenues derived from the tax imposed by this Chapter on Retail Marijuana Businesses shall be collected and spent as a voter approved revenue change, notwithstanding any revenue or expenditure limitations contained in Article X, Section 20, of the Colorado Constitution. Section 2. Severability. The Sections, sentences, clauses and provisions of this Article are intended to be severable; if any such Section, sentence, clause or provision is declared unconstitutional, invalid or unenforceable by the valid judgment of a court of competent jurisdiction, such unconstitutionality, invalidity or unenforceability shall not affect the remaining portions of this Article. Section 3. Effective Date of Tax. The tax imposed by this Article on Medical Marijuana Businesses shall become effective on January 1, 2012. The tax imposed by this Article on Retail Marijuana Businesses shall become effective upon the effective date of this Ordinance.
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