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HomeMy WebLinkAbout09684ORDINANCE NO. 9684 AN ORDINANCE AMENDING SECTIONS 14-4-27, 14-4-28 AND 14-4-33 OF TITLE XIV OF THE PUEBLO MUNICIPAL CODE RELATING TO REVIEW AND APPEAL PROCEDURES WITH RESPECT TO SALES AND USE TAX DETERMINATIONS BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted, underscoring indicates new matter being added) SECTION 1. Section 14-4-27 of the Pueblo Municipal Code is amended to read as follows: Sec. 14-4-27. – \[Complaints as to assessments\] Review; petition; hearing; notice. (a) The taxpayer may \[request a hearing on the proposed tax by application to\] appeal a notice of deficiency or rejection of refund claim by filing a petition with the Director of Finance within thirty (30) days of the mailing of a notice of deficiency or rejection of refund claim. If a petition is not timely or properly filed as herein required, the notice of deficiency or rejection of refund claim shall be final, and no further review shall be available. Matters not timely raised in the petition shall not be considered by the Director nor preserved for review. (b) \[The request for hearing shall set forth the taxpayer's reasons for and the amount of the requested changes in the deficiency.\] The petition shall be in writing and shall set forth in detail the factual and legal basis upon which the taxpayer maintains that the notice of deficiency or rejection of refund claim was in error. The petition shall also set forth the amount of the requested change in the notice of deficiency or rejection of refund claim and shall otherwise comply with applicable rules and regulations promulgated by the Director of Finance. Failure of Taxpayer to file a petition in conformance with the requirements herein stated shall result in the petition being rejected and returned to the Taxpayer. (c) \[The Director of Finance shall notify the taxpayer in writing of the time and place for such hearing thirty (30) days prior thereto.\] Hearings. (1) A hearing, if any, shall be held and a decision issued within one hundred eighty (180) days from the date a petition is received by the Director of Finance, unless the taxpayer and the Director of Finance agree in writing: (a) that the hearing shall be held and a decision issued within such further agreed time or (b) that no hearing shall be held before the manager, in which case, the taxpayer may pursue further review in accordance with Section 14-4-33. (2) If none of the events described in Subsection (c)(1) of this Section have occurred, the Director of Finance may notify the taxpayer in writing that the manager does not intend to conduct a hearing, in which case, the taxpayer may pursue further review in accordance with Section 14-4-33. (3) If none of the events described in Subsections (c)(1) and (c)(2) of this Section have occurred, the taxpayer may pursue further review in accordance with Section 14-4-33 any time after one hundred eighty (180) days or such further agreed time has passed. (d) After a hearing, if any, under this Section, the taxpayer shall not be entitled to a second hearing before the Director of Finance on the matters set forth in his or her previous request for hearing. (e) \[The\] Any hearing shall be held before the Director of Finance or before such person within the Department as the Director shall designate. The Director or his or her delegate is authorized to administer oaths and take testimony and exercise all other powers authorized under this Chapter including those powers set forth in Section 14-4-7. The Director of Finance or his or her delegate is further authorized to issue such orders which in their discretion are deemed appropriate to properly frame the issues prior to hearing. \[At the hearing, the taxpayer may assert any facts, make any arguments and file any briefs and affidavits he or she believes pertinent to his or her cause. (f) In lieu of the request for hearing within the time provided by this Section, the taxpayer may, at his or her election, file a written brief and such other written materials or documents as he or she deems appropriate and request that the Director of Finance reconsider the deficiency without a hearing. The Director shall reconsider the deficiency in the same manner as if the written material submitted had been presented at a hearing pursuant to this Section. The submission of written material shall be considered for all purposes the same as a request for and submission of the material at a hearing. (g) Based on the evidence presented at such hearing or filed in support of the taxpayer's contentions or after the expiration of thirty (30) days from the mailing of the notice of deficiency, if no request for hearing or brief has been filed by the taxpayer, the Director of Finance shall make a final determination within a reasonable time and shall send the taxpayer a notice of final determination by first-class mail as set forth in Section 14-4-26 accompanied by notice and demand for payment. The Director may modify the tax, penalty and interest questioned at the hearing and may approve a refund; except that no additional tax shall be assessed for less than one dollar ($1.00). Unless an appeal is taken as provided in Section 14- 4-33, the tax, together with interest thereon and penalties, if any, shall be paid within thirty (30) days after mailing of the notice and demand for payment by the Director. If, however, a request for hearing or brief is not timely filed by the taxpayer, the tax, together with interest thereon and penalties, if any, shall be paid within ten (10) days after mailing of the notice and demand for payment by the Director.\] (f) After any hearing, the Director of Finance shall make a final determination within a reasonable time and shall send the taxpayer a notice of final determination by first-class mail as set forth in Section 14-4-26 accompanied by notice and demand for payment. The Director may modify the tax, penalty and interest contested and may approve a refund. SECTION 2. Section 14-4-28 of the Pueblo Municipal Code is amended to read as follows: Sec. 14-4-28. - Rejection of refund claims. Upon rejection, in whole or in part, of a claim for refund filed by a taxpayer, the Director of Finance shall send a notice of rejection to the taxpayer in writing by first-class mail. \[to the last address on file with the Department as indicated on the last return filed by such taxpayer; and, within twenty (20) days from the mailing thereof, the taxpayer may request a hearing or file a brief with the Director, except\] A taxpayer may request review of such rejection by filing a petition pursuant to Section 14-4-27; provided, however, no petition may be filed where the claim is for refund of a deficiency in taxes assessed \[after hearing or determination on written briefs had under\] pursuant to notice of final determination issued under the provisions of Section 14-4-27. Thereafter, both the taxpayer and the Director shall proceed as provided in Section 14-4-27. \[with respect to the hearing or determination on written brief. Upon reaching a decision upon such claim for refund after hearing had thereon or consideration of the written brief, the Director shall send to the taxpayer, by first-class mail directed to the last address on file with the Department as indicated on the last return filed by such taxpayer, notice of final determination of claim for refund, stating therein the grounds for allowance or rejection in whole or in part. This Section shall not prevent a taxpayer from suing for a refund in the District Court within the time provided by law, whether or not he or she requests a hearing or presents a written brief.\] SECTION 3. Section 14-4-33 of the Pueblo Municipal Code is amended to read as follows: Sec. 14-4-33. - Appeals. (a) The taxpayer may appeal the final determination of the Director of Finance issued pursuant to Section 14-4-27 \[or 14-4-28\] within thirty (30) days of the mailing of such determination. (b) The District Court of the Tenth Judicial District of the State shall have jurisdiction to hear and determine appeals from any final determination of the Director of Finance under the provisions of this Chapter. (c) Appeal to the District Court shall be taken by filing with the Clerk of the District Court a copy of the notice of final determination received by the taxpayer, together with a written notice stating that the taxpayer appeals to the District Court and alleging the pertinent facts upon which such appeal is grounded. (d) The District Court shall try the case de novo, reviewing all questions of law and fact, such review being conducted in accordance with the Colorado Rules of Civil Procedure. The taxpayer shall present his or her case in the same manner as the plaintiff in other civil actions and the normal rules of evidence shall apply. The taxpayer shall have the burden of proof with respect to the issues raised in the notice of appeal except as to the issue of whether the taxpayer has been guilty of fraud with intent to evade tax. The burden of proof shall be on the Director of Finance to show that a petitioner is liable as a transferee of property of a taxpayer but not to show that the taxpayer was liable for the tax. The District Court may affirm, modify or reverse the determination of the Director and may enter judgment on its findings. (e) Upon filing of the Notice of Appeal, the Director of Finance shall be deemed to be a party to such appeal; and the Clerk of the District Court shall docket the cause as a civil action. The appellant shall cause summons to be issued and cause the same to be served upon the Director of Finance, in accordance with the manner provided by law in civil cases. Notice of the date of trial shall be mailed to the taxpayer and to the Director of Finance, at least twenty (20) days prior thereto. (f) The final decision made in such appeal shall be entered as a judgment, as in other civil cases, against the taxpayer or against the Director of Finance as the case may be. (g) In lieu of filing an appeal pursuant to this Section, the taxpayer may appeal the final determination of the Director of Finance issued pursuant to Section 14-4-27 under and subject to the requirements of Section 29-2-106.1, C.R.S., as amended. SECTION 4. The officers and staff of the City are authorized and directed to perform any and all acts consistent with the intent of this Ordinance to effectuate the policies and procedures described herein. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE TO FOLLOW SECTION 5. This Ordinance shall become effective thirty (30) days after the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on February 24, 2020 . Final adoption of Ordinance by City Council on March 9, 2020 . President of City Council Action by the Mayor: ☒ Approved on March 12, 2020 . ☐ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: ☐ Council did not act to override the Mayor's veto. ☐ Ordinance re-adopted on a vote of , on ☐ Council action on __________________failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-11 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: February 24, 2020 TO: President Dennis E. Flores and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Brenda Armijo, City Clerk FROM: Charles Hernandez, Director of Finance Robert P. Jagger, Sr. Assistant City Attorney SUBJECT: AN ORDINANCE AMENDING SECTIONS 14-4-27, 14-4-28 AND 14-4-33 OF TITLE XIV OF THE PUEBLO MUNICIPAL CODE RELATING TO REVIEW AND APPEAL PROCEDURES WITH RESPECT TO SALES AND USE TAX DETERMINATIONS SUMMARY: The proposed Ordinance implements desired and necessary changes to the review and appeal procedures with respect to sales and use tax determinations. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: The review and appeal procedures as set forth in the Ordinances relating to sales and use tax determination have not been updated since 1986. During said period the State of Colorado also enacted appellate procedures with respect to contested sales and use tax when imposed by municipalities. The proposed Ordinance makes desired and necessary changes to conform our Ordinances with the general manner in which review is provided in most other home rule municipalities and further identifies and makes our Ordinances clearly consistent with the appellate procedures enacted by the State of Colorado. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If the proposed Ordinance is not passed and approved, the review and appeal procedures will continue to remain outdated and will fail to identify and be clearly consistent with appellate procedures enacted by the State of Colorado. RECOMMENDATION: The proposed Ordinance be passed and approved. Attachments: Proposed Ordinance