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HomeMy WebLinkAbout05292d. Y ORDINANCE NO. 5292 AN ORDINANCE ADDING, AMENDING, REPEALING AND REENACTING VARIOUS SECTIONS OF CHAPTER 4 OF TITLE XIV OF THE 1971 CODE OF ORDINANCES TO MAKE SUBSTANTIVE AND PROCEDURAL CHANGES AND ADDITIONS TO THE PENALTIES, PAYMENT, COLLEC- TION, ENFORCEMENT, AND REFUND OF CITY OF PUEBLO SALES AND USE TAXES WHEREAS, House Bill 1007 as recently enacted by the Colorado legislature requires conformance of the sales and use tax ordi- nances of home rule cities to the statutes governing state sales and use tax collection and enforcement, but in addition purports to limit the powers of home rule cities to impose municipal sales and use taxes; and WHEREAS, the City Council reaffirms its position that imposi- tion of sales and use taxes by the City of Pueblo is a matter of local concern, and an inherent home rule power granted to the City of Pueblo under Article XX of the Colorado Constitution; and WHEREAS, the City Council declines to make any substantive changes in its sales and use tax ordinances in response to House Bill 1007; and WHEREAS, the City Council wishes to conform certain of its ordinances to the existing state statutes governing procedures for collection and enforcement of state sales and use taxes, amending such ordinances not in response to House Bill 1007, but under authority granted to the City Council by the people of the City of Pueblo in Ordinance No. 3160; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: (underscoring indicates material added, brackets indicate material deleted) SECTION 1. Section 14-4-5 is hereby amended to read as follows: 14-4-5: EXAMINATION OF RETURN As soon as practicable after a return is filed, the Director shall examine it and shall determine the correct amount of tax. If the tax found due is greater than the amount theretofore assessed or paid, a notice of [final determination -assessment and demand for payment] deficiency shall be mailed to the taxpayer by certified mail. [The tax, together with interest thereon at the .rate imposed under sec. 14-4-14, from the time the return was due, and penalties, if any, shall be paid within thirty days after mailing of the notice and demand for payment by the Director.] SECTION 2. Section 14-4-12 is hereby amended to read as follows: 14-4-12: [LIMITATION OF ACTION] LIMITATIONS (a) The taxes for any period, together with interest thereon and penalties with respect thereto, imposed by this Chapter shall not be assessed, nor shall any notice of lien be filed, or distraint warrant [be] issued, or suit for collection be instituted, [or] nor any other action to collect the same be commenced, more than three 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 period, [and where] notice of lien with respect [thereto] to which has been filed prior to the expiration of such period[;], in which cases such lien shall continue only for one year after the filing of notice thereof. (b) In the case of failure to file a return or the f i 1 ing of a false or fraudulent return with intent to evade tax, the tax, together with interest and penalties[,] thereon, may be assessed, or proceedings for the collection of such taxes may be begun at any time. (c) Before the expiration of such period of limitation, the taxpayer and the Director of Finance may agree in writing to an extension thereof, and the period so agreed on may be extended by subsequent agreements in writing. SECTION 3. A new section 14-4-15 is added to read as follows: -2- 14-4-15: INTEREST ON UNDERPAYMENT, NONPAYMENT OR EXTENSIONS OF TIME FOR PAYMENT OF TAX (a) If an amount of sales or use tax is not paid on or before the last date prescribed for payment, interest on such amount at the rate imposed under section 14-4-14 shall be paid for the period from such Last date to the date paid. The last gate_prescribed for payment shall be determined without regard to any extension of time for payment and shall be determined without regard to any notice and demand for �a merit issued, by reason of jeopardy, prior to the last date otherwise prescribed for such payment. In the case of a tax in which the last date for payment is not otherwise pre- scribed, the last date for payment shall be deemed to be the date the liabilit for the tax arises, and In no event shall it ter than the date notice and demand for the tax is made by the Director of finance or his delegate. (b) Interest prescribed under this section shall be paid d _.._ p upon notice and demand and shall be assessed, collected, and paid in the same manner as the tax to which it is applicable. (c) If any portion of a tax is satisfied by credit of an overpayment, then no interest shall be imposed under this section on the portion of the tax so satisfied for !any eriod during which, if the credit had not been made, interest would have been allowed with respect to such overpayment. (d) Interest 2rescribed under this section on any tax may be assessed and collected at any time during the period within which the tax to which such interest relates may be assessed and collected. SECTION 4. A new section 14-4-16 is added to read as follows: 14-4-16: PENALTY INTEREST ON UNPAID USE TAX Any use tax due and unpaid under this Chapter shall be a debt to the City of Pueblo, and shall draw interest at the rate imposed under section 14-4-14, in addition to the interest provided by section 14-4-15, from the time when due until paid. The Director of Finance may recover at law the amount of such tax and interest in a suit instituted in the name of the City of Pueblo, and this remedy shall bein addition to all other remedies. SECTION 5. Section 14-4-22 is hereby amended to read as follows: 14-4-22: BURDEN OF PROOF -3- The burden of [proof] proving that sales, services and commodities [, and services] on which tax refunds are claimed[,] are exempt from taxation hereunder, or [where] were not at retail, shall be on the one making such claim under such reasonable requirements of proof as the Director of Finance [may] prescribes. Should the applicant for refund be aggrieved at the final decision of the Director of Finance, he may proceed to have the same reviewed by the District Court in the manner provided for review of other decisions of the Director of Finance as rovided in section 14-4-33. SECTION 6. Section 14-4-23 is hereby repealed and reenacted to read as follows: 14-4-23: [DEFICIENCIES --DISREGARD OF RULES; PENAL SUM; INTEREST] DISTRAINT WARRANTS - PENALTIES If any person, firm or corporation liable for the payment of any tax covered by this Chapter has repeatedly failed, neglected or refused to pay the same within the time specified for such payment, and the Director of Finance has been required to issue distraint warrants to enforce collection of any taxes due from such taxpayer, the Director is hereby authorized to assess and collect the amount of such taxes due, together with all interest and penalties thereon provided by law, and also the following additional penalties for recurring distraint warrants: (a) Three, four, or five consecutive distraint warrants issued: Fifteen percent of the delinquent taxes, interest and penalties due or the sum of twenty-five dollars, whichever amount is qreater; (b) Six or more consecutive distraint warrants issued: Thirty percent of the delinquent taxes, interest and penalties due or the sum of fifty dollars, whichever amount is areater. Section 7. Section 14-4-25 is hereby amended to read as follows: 14-4-25: TAX ESTIMATED WHERE NO RETURN; ASSESSMENT; MODIFI- CATION; NOTICE (a) If a person neglects or refuses to make a return in payment of the tax or to pay any tax as required by this Chapter, the Director of Finance shall make an estimate, based upon such information as may be available, of the amount of taxes due for the period for which the taxpayer is -4- delinquent and shall add thereto a penalty equal to the sum of fifteen dollars for such failure or ten percent thereof and interest on such delinquent taxes at the rate imposed under section 14-4-14 plus one-half percent per month from the date [where] when due, not exceeding eighteen percent in the aggre ate. Promptly thereafter the Director shall give to the delinquent taxpayer written notice of such estimated taxes, penalty and interest, which notice shall be [served personally or] sent by certified mail directed to the last address of such person on file with the [Director] Department of Finance. (b) Such estimate shall thereupon become a notice of [final determination -assessment and demand for payment] deficiency as provided in section 14-4-5 [and shall be final and due and payable thirty days from the date of service of the notice]. A hearing may be held and the Director shall make a final determination pursuant to section 14-4-27. The taxpayer may appeal the said final determination in the manner provided in section 14-4-[29]33. SECTION 8. Section 14-4-27 is repealed and reenacted to read as follows: 14-4-27: COMPLAINTS AS TO ASSESSMENTS --PETITION; HEARING, NOTICE (a) The taxpayer may request a hearing on the proposed tax by application to the Director of Finance within thirty days of the mailing of a notice of deficient . (b) The request for hearing shall set forth the taxpayer's reasons for and the amount of the requested changes in the deficienc . (c) The Director of Finance shall notify the taxpayer in wiing of the time and place for such hearing thirty days prior thereto. (d) After a hearing under this section, the taxpayer shall not be entitled to a second, hearinq before the Director of Finance on the matters set forth in his previous request for hearing. (e) The hearing shall be held before the Director of Finance or before such person within the department as the Director shall designate. The said Director or his delegate is authorized to administer oaths and take testimony. At the hearing, the taxpayer may assert any facts, make any ,a r, umente, and file any briefs and affidavits he believes pertinent to his cause. (f) In lieu of the request for hearing within the time -5- provided by this section the taxpa er may, at his election, file a written brief and such other written materials or documents as he 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 hearin . (g) Based on the evidence presented at such hearing or filed in sueport of the taxpayer's contentions or after the expiration of thirty days from the mailing of the notice of deficiency, if no request for hearing or brief has been filed b thetaxpayer, the Director of Finance shall, make a final determination within a reasonable time and shall send the taxpayer a notice of final determination by certified mail 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. Unless an -ap2eal is taken as provided in section 14-4-33, the tax, together with interest thereon and penalties, if any, shall be 2aid within thirty days after mailinM of the notice and demand for payment by the Director. SECTION 9. Section 14-4-28 is hereby repealed and reenacted to read as follows: 14-4-28: [SAME --DIRECTOR'S DECISION; NOTICE] 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 directed to the last address on file with the department as indicated on the last return filed by such taxpayer; and, within thirty days from the mailing thereof, the tax a er may request a hearing or file a brief with the Director, except where the claim is for refund of a deficiency in taxes assessed after hearing or determination on written briefs had 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 reacting a decision a on 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 taxoaver, notice of final determi- -6- nation of claim for refund, stating therein the qrounds for allowance orrejection in whole or in part. This section sha .lnot prevent a taxpayer from suing for a refund in the district court within the time prov::ded by law whether or not Ke requests a hearin or presents a written krief. SECTION 10. Section 14-4-29 is hereby repealed. SECTION 11. Section 14-4-31 is hereby amended to read as follows: 14-4-31: COMPROMISE (a) Compromise Limitation. The Director or his delegate may compromise [to the extent of Five Hundred Dollars ($500.00)] any civil or criminal case arising under the Sales and Use Tax Code, prior to reference to the City Attorney's Office for prosecution or defense; and the City Attorney or his delegate shall, upon the written direction of the Director, compromise any such case after reference to the City Attorney's Office for prosecution or defense. (b) Compromise Record. Whenever a compromise, in value or valuation, of [Five Hundred Dollars ($500.00) or less] Two Thousand Five Hundred Dollars or more is made by the Director or his delegate in any case, there shall be placed on file in the office of the Director or his delegate the opinion of the Director with his reasons therefor, which may include a financial inability of the taxpayer to pay a greater amount with the statement of: (1) The amount of tax assessed; (2) The amount of interest, additional amount, addition to the tax or assessable penalty imposed by law on the person against whom the tax is assessed; and, (3) The amount paid in accordance with the term of the compromise. (c) Notwithstanding the provisions of subsection (b), no such opinion shall be required with respect to the compromise of any civil case in which the unpaid amount of tax assessed, including any interest, additional amount, addition to the tax, or assessable penalty, is less than two thousand five hundred dollars. SECTION 12. Section 14-4-32 is hereby amended to read as follows: 14-4-32: APPEALS; BOND; FILING -7- (a) Within fifteen days after filing [of] the notice of appeal, the taxpayer shall file with the district court a surety bond in twice the amount of the taxes, interest[s], and other charges stated in the final determination by the Director which are contested on appeal[;]. (b) The taxpayer may, at his option, satisfy the surety bond requirement by a savings account or deposit in or a certificate of deposit issued by a state or national bank doing business in this state or by a state or federal savings and loan association doing business in this state. Such savings account, deposit or certificate of deposit shall be in an amount equal to twice the amount of the taxes, interest an other charges stated in the final determination by the Director, and shall be assigned to the City of Pueblo Department of Finance for the use of the people of the City of Pueblo. The aggregate liability of the bank or savings and loan association shall in no event exceed the amount of the deposit. For the purposes of this Chapter, "bond" includes the savings account, deposit, or certificate of deposit authorized by this subsection. The Director of Finance shall promulgate rules and regulations defining the method of assignment, required period of liability, and such other procedures as may be necessary. (c) [but the] The taxpayer may, at his option, deposit the disputed amount with the Director in lieu of posting a surety bond. If such amount is so deposited, no further inert shall accrue on the deficiency contested during the pendency of the action. At the conclusion of the action, after appeal to the Colorado Supreme Court or the Court of Appeals or after the time for such appeal has expired, the funds deposited shall be, at the direction of the court, either retained by the Director and applied against the deficiency or returned in whole or in part to the taxpayer with interest at the rate imposed under sec. 14-4-14. No claim for refund of amounts deposited with the Director need be made by the taxpayer in order for such amounts to be repaid in accordance with the direction of the court. SECTION 13. Section 14-4-33 is hereby amended to read as follows: 14-4-33: [SAME --REVIEW BY DISTRICT COURT; PETITION; WRIT] APPEALS (a) The taxpayer may a22eal the final determination of the Director of Finance issued pursuant to section 14-4-27 or 14-4-28 within thirty days of the mailing of such determina- T3 n . [(a)] (b) The District Court of the Tenth Judicial District of the State of Colorado shall have [original] jurisdiction to hear and determine appeals [in proceedings to review all questions of law and fact determined by] from any final determination of the Director of Finance [in administering] under the provisions of this Chapter. [(b)] (c) Appeal to the District Court shall be taken by filing with the Clerk of the District Court a copy of the [Hearing Determination Notice] 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. [ (c) ] ( 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 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 [rasied] 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 or his delegate 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. [(d)] (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 [now] 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. [(e)] (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. SECTION 14. Section 14-4-34 is hereby amended to read as follows: 14-4-34: SAME --REVIEW BY SUPREME COURT The decision of the District Court [may be reviewed in] shall be reviewable by the Supreme Court or the Court of Appeals [upon writ of error by any party] as is otherwise M*M provided by SECTION 15. Section 14-4-35 is hereby amended to read as follows: 14-4-35: DEFICIENCIES; PENAL SUM; INTEREST If any part of the deficiency is due to negligence or intentional disregard of authorized rules and regulations with knowledge thereof but without intent to defraud there shall be added ten per cent of the total amount of the deficiency, and interest in such case shall be collected at the rate imposed under sec. 14-4-14 in addition to the interest provided by section 14-4-[5]15 on the amount of such deficiency from the time the return was due from the person required to file the return, which interest and addition shall become due and payable ten days after written notice and demand to him by the Director. If any part of the deficiency is due to fraud with the intent to evade the tax, there shall be added [fifty] one hundred per cent of the total amount of the deficiency and in such case the whole of amount of the tax unpaid, including the additions, shall become due and payable ten days after written notice and demand by the Director and an additional [one] three per cent per month on said amount shall be added from the date the return was due until paid. SECTION 16. Section 14-4-39 is hereby amended to read as follows: 14-4-39: SAME --APPEAL FROM LICENSE REVOCATION ORDER Any finding and order of the Director revoking the license of any person shall be subject to review by the District Court of the Tenth Judicial District of Colorado. The procedure for review shall be, as nearly as possible, the same as provided [by this Chapter] for the review of [a Hearing Determination Notice of the Director] findings as rovided by 2roceedings,in the nature of certiorari. SECTION 17. Section 14-4-40 is hereby amended to read as follows: 14-4-40: [DISPUTE OVER LIABILITY - REFUND PROCEDURE] REFUNDS (a) If the Director discovers from the examination of a return within the time periods provided for the filing of refunds, or upon claim duly filed by the taxpayer, or upon final judgment of a court, that the tax, penalty or interest paid by any taxpayer is in excess of the amount due, or has MITE been illegally or erroneously collected, then the Director shall issue in favor of the taxpayer his warrant for refund of such illegally collected tax, penalty, or interest, regardless of whether or not such sum was paid under protest, together with interest at the rate imposed under sec. 14-4- 14, out of the reserve, provided therefor; but the Director shall keep in his files a duplicate of said warrant and also a statement which shall set forth the reason why such refund has been ordered. (b) Whenever it is established that any taxpayer has, for any period open under this Chapter, overpaid a sales or use tax and that there is an unpaid balance of tax and interest acrued, according to the records of the Director, owing by such [the] taxpayer [has] for any other period, [an unpaid balance of tax, penalty or interest owing,] or that there is any unpaid debt owing to the C ty of Pueblo or any agency thereof by such taxpayer, and which is found to be - owing as a result of a final agency determination or the_ amount of which has been reduced to judgment and as-certified- by scertified by the Director, so [such] much of the overpayment of tax plus interest allowable thereon as does not exceed the amount of such unpaid balance or unpaid debt shall be credited [thereto,] first to the unpaid balance of tax and interest accrued and then to the unpaid debt, and any excess of the overpayment shall be refunded. (c) Interest shall be overpayment in respect to any imposed under section 14 -4 - allowed and paid as follows: allowed and paid upon any sales or use tax at the rate 14. Such interest shall be (1) In the case of a credit, from the date of the overpayment to the due date of the amount against which the credit is taken; () In the case of a refund, from the date of the over a meat to a date, to be determined by the Director of Finance or his delegate, preceding the date of the refund by not more than thirty days, whether or not such re and is accepted by the taxpayer after tender of such refund to the taxpayer. The acce tance of such refund shall be without prejudice to any right, of the taxpayer to claim anv additional overpayment and interest thereon. (d) Any portion of a sales or use tax or any interest, assessable penalty, additional amount, or addition to a tax or char a which has been erroneously refunded shall bear interest at the rate imposed under section 1-4-1.4 from the date of the payment of the refund. (e) If any overpayment of sales or use tax is refunded within ninety days after the last date prescribed for filing -11- the return of such tax, determined without regard to any extension of time for filing the return, no interest shall be allowed under subsection (c) of this section on such over- payment. SECTION 18. Section 14-4-41 is hereby amended to read as follows: 14-4-41: RIGHT OF REFUND--NONASSIGNABLE The right of any person to a refund under this Chapter shall not be assignable and, except as provided in section 14-4-90(d), such application for refund must be made by the same person who purchased the goods and paid the tax thereon as shown in the invoice of the sale thereof. SECTION 19. Section 14-4-42 is hereby amended to read as follows: 14-4-42: FALSE STATEMENTS [ON REFUND APPLICATION] CONCERNING REFUNDS Any applicant for refund under the provisions [herein- above] of this Chapter, or any other person[,] who [shall make] makes any false statement in connection with an application for a refund of any tax shall be deemed guilty of a violation of this Code. SECTION 20. A new section 14-4-50 is added to read as follows: 14-4-50: PENALTIES In addition to the personal liability rovided in. section 14-4-30, all officers of a corporation and all members of a 2artnership required to collect, account for, and pay over any tax administered by this Chatter who V71—liful1v fail to collect, account for, or pay over such tax or who willfully attempt in any manner to evade or defeat an such tax, or the payment thereof, are sub ect to, in addition to other penalties provided in this Chapter, a penalty e ual. to one hundred fifty,per cent of the total amount of the tax not collected, accounted for, paid over, or otherwise evaded. An officer of a corporation or a member of a partnership shall be deemed to be subject to this section if the cor oration or partnership is sub`ect to filing returns or 2aying taxes administered by this Chapter and if such officers of corporations or members of partnerships voluntarily or at the direction of their superiors assume the duties or responsibilities of complying with the provisions of anv tax administered by this Chapter on behalf of the -12- corporation or partnership. SECTION 21. Section 14-4-88 is hereby repealed and reenacted to read as follows: 14-4-88: USE TAX RETURNS AND COLLECTIONS (a) Every person subject to the provisions of this Chapter who uses, stores, or consumes tangible personal property in the conduct of a business in this city, which property is purchased either inside or outside this cit , and his top has not a retailer s all makeid the saor use returntax andmposed by rem �e tChapter tax imposed by this Chapter to the Director of Finance for the preceding period covered by the remittance on forms prescribed by him, showing in detail the tan ible personal property stored, used, or consumed by said ^erson in the conduct of his business within the City in the preceding period covered_12L the remittance and on which property the said sales or use tax has not, been pad. Every person subject to the provisions of this Chapter shall maintain monthly records of the amount of tax due. At such time as the cumulative tax due at the end of any month is in excess of three hundred dollars, such person shall make a return and remit the tax due before the twentieth day of the following month. If the total tax due in a calendar year is less than three hundred dollars, such person shall make a single return and remittance for such calendar year before January 20 of the followina calendar vear. (b) Every eerson who is subject to the rovisions of this Cha,ter who uses, stores, or consumes tangible personal property not in the conduct of a business, which is purchased either inside or outside this city, who has not paid the sales or use tax imposed by th-s Cha ter to a retailer, shall make a return and remit the tax annually, at the time the Colorado income tax of such erson is due and payable, on forms prescribed By the Director of Finance, showing in detail thetan Ible personal property stored, used*, or consumed by said persons within this city for the precedin2 taxable ear . (c) All such returns shall be subscribed by the taxpa er or his a ent and shall contain a written declaratili s made under the penalties of perjury in the secon de ree. (d) Every retailer doing business in this cit and making sales of tangable p-rsonal_._2roy,)ertv for storage, use, or consumption in the City, and not exemmted as providedn section 14-4-7 7, at the time of making such sales or Lakin -13- the orders therefor, or, if the storage, use, or consumption of such tanglE.1—e j2ersonal property is not then taxable under this Chapter, then at the time such storage, use, or consuml2tion becomes taxable under this Chapter, shall collect the tax imposed by section 14-4-63, from the purchaser and give to the rchaser a receipt therefor, which receiL)t shall identify the� property, the date sold or the date ordered, and the tax collected and paid. The tax re u�Ired to be collected by such retailer from such purchaser shall be displayed se2aratel from the advertised rice listed on the forms or advertising matter on all sales checks, orders, sales slips, or other 2roof of sales. (e) It is unlawful for such retailer or agent, to advertise or hold out or state to the public or to a customer, directlyorindirectly, that the tax or any part thereof will be assumed or absorbed by such retailer or agent, ot- that it will not be added to the selling price of the pr02erty sold, or if added, that it or any 2art thereof will be refunded. The tax required to be collected by such retailer or agent shall be remitted to the City in like manner as otherwise provided in this Chapter for the remittance of sales taxes collected by retailers, and all _such retailers or agents collecting the tax imposed by section 14-4-63 shall make returns on forms provided by the Director of Finance at such times and in such manner as is provided' for the making of returns in the payment of the sales taxes. The procedure for assessing taxes from such retailers or agents, or from the user when not p�a�idUo a retailer o.r_agent, shall be the same as provided in this Chapter for the collection of sales taxes, including collection by distraint warrant, and said taxes due and owing from any retailer or agent for the storage - , use, or consumption of tangible personal property shall bear,fritere-s-T and be subject to the same penalties as is provided in this aDter for nonDavment or delinauencies of sales taxes. SECTION 22. Section 14-4-90 is hereby amended to read as follows: 14-4-90: DISPUTE OVER LIABILITY --COLLECTION AND REFUND (a) Should a dispute arise between the purchaser and seller as to whether or not any sale [or commodity or] , service or commodity is exempt from taxation [hereunder] under this Chapter, nevertheless the seller shall collect and the purchaser shall pay [such] the tax, and the seller shall thereupon issue to the purchaser a receipt or certificate, on forms prescribed by the Director, showing the name of the seller and the purchaser, the items purchased, the date, price[,] and amount of tax paid[.] , and a brief statement of the claim of exemption. The purchaser thereafter may a pl to said Director for a refund of such taxes, and it is then -14- the duty of the Director to determine the,question of exemption. The purchaser may request a hearing pursuant to section 14-4-28, and the final determination of the Director may be appealed to the district court pursuant to section 14- 4-33. [The purchaser may apply to the Director of Finance for a refund within six (6) months of the purchase date by presenting to the Director a request for refund, containing a brief statement of the basis of the claim, the name of the seller, the date of purchase, the item purchased, and enclosing the receipt or certificate of sale. It shall be the duty of the Director to determine the validity of the claim, subject to review by the courts as provided by this Chapter.] (b) A refund shall be made, or a credit allowed, for the tax so paid under dispute by any purchaser who has an exemption as provided in this Chapter. Such refund shall be made by the Director after compliance with the following conditions precedent: Applications for refund must be made within sixty days after the purchase of the goods whereon an exemption is claimed, and must be supported by the affidavit of the purchaser accom anied by the original paid invoice or sales receipt and certificate issued by the seller, and be made u on such forms as shall be prescribed and furnished by the Director, which forms shall contain such information as the Director resc-Ibes. (c) Upon receipt of an a plication, the Director shall examine the same with due speed and shall give notice to the applicant b order in writing of his decision thereon. Aggrieved applicants, within thirty days after such decision is mailed to thee, may petition the Director for a hearing on the claim in the manner provided in section 14-4-28 and may appeal to the district court in the manner provided in section 1.4-4-33. (d) A refund shall be made or a credit allowed by the Director to any person entitled to an exemption where such erson establishes: That a tax was paid by another on a urchase made on behalf of such person; or that a tax was paid b an Independent contractor on or before July 1, 19, on tangible personal property incorporated into realty for the sole use, benefit and ownership of any person entitled to an exem tions and that a refund has not been granted to the person ma ia2 the purchase, and that the person entitled to exemption paidor reimbursed the purchaser for such tax., No such refund shall be made or credit allowed in an amount greater than the tax paid less the expense allowance on such urchase rete ned by the vendor pursuant to section 14-4-86. (e) Such application for refund under subsection (d) above shall be made within three years after the date of urc ase and s all be made on forms rescrxbea and furnis-hed by the Director, which form shatl contain, in addition to the -15- foregoing information, such pertinent data as the Director prescribes. Upon receipt of such application and proof of the matters nt coained therein, the Director shall.. give. notice to the applicant by order in writing of his decision thereon. -A2 rie ed applicants, within thirty days after such decision is mailed to them, mav petition the Director for a hearing on the claim in the manner provided in section 14-4-2.8 and may appeal to the district court in the manner provided in section 14-4-33. (f) Claims for tax moneys paid in error or by mistake may be processed for refund in accordance with regulations of the Director under subsection (b) above; except that proceeds of anv such claim for refund shall first be applied b the c Diretor to an tax deficiencies or liabilities existing against the claimant before allowance of such claim by the Director; and further, except that if such excess payment of tax mone s in an erxod is discovered as a result of audit by the Department of Finance, and deficiencies are discovered and assessed against the taxpayer as a result of such audit, such excess moneys shall first be applied against any deficiencies outstanding to the date of assessment but shall not be applied to any future tax liabilities. SECTION 23. If any section or part of this Ordinance shall be adjudged unenforceable or invalid, such judgment shall not affect, impair or invalidate the remaining sections and provisions of this Ordinance, it being the intention that the various provisions hereof are severable. If any section or part of this Ordinance shall conflict with any section or part of the Charter of the City, such section or provision shall not be deemed to be invalid but shall to the extent of such conflict be superseded by the conflicting provisions of the Charter which shall prevail and control. SECTION 24. This Ordinance shall become effective immediately upon final passage. INTRODUCED: FEBRUARY 10 , 1986 -16- ATTEST: By PAUL JONES Councilman APPROVED: Prbsident of the City -Council - aye