Ordinance NO. 2012-2

BEFORE THE TOWN COUNCIL
TOWN OF MOUNTAIN VIEW
STATE OF COLORADO

ORDINANCE NO. 2012-2

TITLE: AN ORDINANCE AMENDING CHAPTER 6 OF THE MOUNTAIN VIEW MUNICIPAL CODE BY THE ADDITION OF A NEW ARTICLE 4, TO LEVY A MEDICAL MARIJUANA TAX

WHEREAS, the Town is a home rule municipality organized and existing pursuant to Article XX of the Colorado Constitution;

WHEREAS, at the Town’s November 2, 2010 election, the Town presented a ballot issue to the Town’s registered voters asking whether the Town should impose a tax on the sale of medical marijuana and medical marijuana-infused products;

WHEREAS, the Town’s registered voters approved the ballot question by a vote of 113 votes in favor and 29 votes opposed; and

WHEREAS, this ordinance is intended to implement the ballot question by amending the Mountain View Municipal Code to levy the medical marijuana sales tax.

NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF MOUNTAIN VIEW, COLORADO:

Section 1. Chapter 6 of the Mountain View Municipal Code is hereby amended by the addition of a new Article 4, entitled “Medical Marijuana Tax,” to read as follows:

Article 4
MEDICAL MARIJUANA TAX

Sec. 4-6-10. Purpose.

The purpose of this Article is to impose a tax which will be collected by every vendor of medical marijuana and medical marijuana-infused products from persons purchasing medical marijuana and medical marijuana-infused products in the Town. For. purposes of this Article, every person who purchases medical marijuana or medical marijuana-infused products in the Town is exercising a taxable privilege.

Sec. 4-6-20. Definitions.

(a) For purposes of this Article, the following terms shall have the following meanings:

Gross taxable sales means the total amount received in money, credits, property, or other consideration from sales and purchases of medical marijuana and medical marijuana-infused products.

Medical marijuana means the seeds, leaves, buds and flowers of the plant (genus) cannabis and any mixture, product or preparation thereof, which are appropriate for medical use as provided in Section 14 of Article XVIII of the Colorado Constitution, but excludes the plant’s stalk, stems and roots.

Medical marijuana-infused products means products infused with medical marijuana that are intended for use or consumption other than by smoking, including but not limited to edible products, ointments and tinctures.

Purchase or sale means the acquisition or furnishing for consideration by any person of medical marijuana or medical marijuana-infused products in the Town.

Purchaser means any person to whom the taxable service of providing medical marijuana or medical marijuana-infused products has been rendered.

Tax means either the tax payable by the purchaser or the aggregate amount of taxes due from a vendor during the period for which the vendor is required to report collections under this Article.

Taxpayer means any person obligated to account to the Town for taxes collected or to be collected, or from whom a tax is due, under this Article.

Vendor means a person making sales of or furnishing medical marijuana or medical marijuana-infused products to a purchaser in the Town.

Sec. 4-6-30. Levy of tax.

a)  There is hereby levied and shall be collected and paid a tax by every person exercising the taxable privilege of purchasing medical marijuana or medical marijuana-infused products as defined in this Article.

b)  The amount of the tax is five percent (5%) of the gross taxable sale amount paid or charged for purchasing medical marijuana or medical marijuana infused products.

c)  A vendor shall collect a tax from all those to whom medical marijuana or medical marijuana-infused products are provided amounting to five percent (5%) of the total revenue received by such vendor from the sale or purchase of such items. Such tax shall be in addition to any other tax for providing such items.

Sec. 4-6-40. Deductions.

The following deductions shall be allowed against sales of medical marijuana or medical marijuana-infused products:

(1) Refunds of sales actually returned to a purchaser;

(2)  Adjustments in sales which amount to a refund. to a purchaser, i f such adjus1nient pertains to the actual sale of medical marijuana and medical marijuana-infused products and does not include adjustments for other services furnished by a vendor; and

(3)  Taxes paid on the amount of gross sales which are represented by accounts which are found to be worthless and are actually and properly charged off as bad debts for the purpose of the income tax imposed by state law be credited upon a subsequent payment of the tax herein provided, but if any such accounts are thereafter collected by the taxpayer, the tax shall be paid upon the amount so collected.

Sec. 4-6-50. Collection of tax.

a)  Every vendor making a sale to a purchaser in the Town which is taxable under this Article, at the time of making such sale, shall collect the tax from the purchaser.

b)  The tax shall be stated and charged separately from the sale price, provided that when added, the tax shall constitute a part of such sale price and shall be a debt from the purchaser to the vendor until paid and shall be recoverable at law in the same manner as other debts.

c)  It is unlawful for a vendor to assume or absorb the payment of the

d)  Vendors collecting and remitting the tax shall not be entitled to charge a vendor fee.

Sec. 4-6-60. Returns.

Every vendor shall, before the 20th day of each month, make a return to the Town Clerk for the preceding calendar month and remit to the Town, simultaneously therewith, the total amount of taxes due.

Sec. 4-6-70. Audit of records.

a) Every vendor shall keep suitable records of all sales made by the vendor and such other records required by the Town to determine the amount of the tax, for a period of three (3) years from the date of payment or collection, and all such records shall be open for examination by the Town.

b) To ascertain the correct amount of tax due, the Town may authorize an agent to conduct an audit by examining any relevant records.

c) If any taxpayer refuses to voluntarily furnish any records when requested, the Town may issue a subpoena to require that the taxpayer or its representative attend a hearing or produce such records for examination.

Sec. 4-6-80. Tax information confidential.

(a) All information used to determine the tax due, whether furnished by the taxpayer or obtained through audit, shall be treated by the Town as confidential.

(b) The Town 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 herein shall be construed to prohibit the delivery to a taxpayer or its authorized representative confidential information relating to such taxpayer or vendor, the publication of statistics so classified as to prevent the identification of particular taxpayers or vendors, or the inspection of confidential information by an officer, employee, or legal representative of the Town.

Sec. 4-6-90. Refunds and deficiencies.

a)  An application for refund of any taxes paid in error shall be made within sixty (60) days after the date of purchase of medical marijuana or medical marijuana- infused products for which the refund is claimed. If the Town determines that a taxpayer overpaid the tax, the Town shall issue a refund or allow a credit against a future remittance from the same taxpayer. Ifthe amount . paid is less than the amount due, the difference, plus interest, shall be paid by the taxpayer within ten (10) days after written demand from the Town.

b)  If any deficiency is due to negligence or intentional disregard of this Article, but without intent to defraud, there shall be added ten percent (10%) of the total amount of the deficiency, and interest, from the taxpayer.

c)  If any 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 as a penalty, and the whole amount of the unpaid tax, including the penalty, shall become due and payable ten (10) days after written demand from the Town.

Sec. 4-6-100. Collection and refund of disputed tax.

a)  Should a dispute arise between a purchaser and vendor as to whether or not the sale of medical marijuana or medical marijuana-infused products is exempt from taxation under this Article, the vendor shall collect and pay such tax under protest, and issue to the purchaser a receipt showing the date, price, and amount of tax paid, and a brief statement of the claim of exemption.

b)  A purchaser may file an application for an exemption within sixty (60) days after the purchase of the medical marijuana or medical marijuana infused products for which the exemption is claimed, which must be supported by affidavit of the purchaser and the original sales receipt. The burden of proof that sales of medical marijuana or medical marijuana-infused products are exempt from taxation is 011the applicant, by a preponderance of the evidence.

c) The Town shall review the application within. fourteen (14) days and shall give notice to the applicant in writing of the Town’s decision.

d) An aggrieved applicant may, within ten (10) days after the date of such decision, petition the Town Council for a hearing on the claim. The hearing shall be held before the Town Council within thirty (30) days of receipt of the petition, and the Town Council shall issue a decision within thirty (30) days of conclusion of the hearing. The hearing shall be informal, but the applicant shall have an opportunity to be heard.

Sec. 4-6-110. Status of unpaid tax in bankruptcy and receivership.

a)  When the business or property of a taxpayer is placed in receivership, bankruptcy or assignment for the benefit of creditors, or seized under distraint for taxes, all taxes, penalties and interest for which the taxpayer is liable under this Article shall be a first and prior lien against the property of the taxpayer, except as to other prior tax liens.

b)  No sheriff, receiver, assignee or other officer shall sell property subject to this Article under process or court order, without first ascertaining from the Town the amount of any taxes due under this Article, and if there are any taxes due, the officer shall first pay the amount of the taxes out of the proceeds of such sale before making payment to any judgment creditor or other claimant, except the costs of the proceedings and other preexisting tax liens.

Sec. 4-6-120. Trust status of tax in possession of vendor.

All funds paid by a purchaser to a vendor as taxes shall be and remain public money in the hands of the vendor, and the vendor shall hold the same in trust for the sole use and benefit of the Town until paid to the Town.

Sec. 4-6-130. Tax lien.

The tax imposed by this Article, together with the interest and penalties and the costs of collection, shall be remain until paid a first and prior lien on the tangible personal property of a taxpayer within the Town. The Town shall be authorized to use all legal means to enforce and foreclose on the lien.

Sec. 4-6-140. Limitation on actions.

a)  Taxes 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 is payable; provided that in the case of a false or fraudulent return with intent to evade the tax, the tax, plus interest and penalties, may be assessed, o:r proceedings for the collection of such taxes may be begun at any time.

b)  Before the expiration of such period of limitation, the taxpayer and the Town may agree in writing to an extension thereof, and the period may be further extended by subsequent written agreements.

Sec. 4-6-150. Enforcement and penalty.

a)  It is unlawful for any person to violate any provision of this Article, and violations of this Article shall be subject to the penalties in Article 6, Chapter 1 of this Code. 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 ten dollars ($10.00), whichever is greater, shall be imposed upon the vendor and become due if the tax is not remitted by the 20th day of the month, and one percent (1%) interest shall accrue each month on the unpaid balance.

c)  If a vendor fails to make a return and pay the tax imposed by the 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 the estimate, by certified or registered mail, to the vendor at the vendor’s last-known address. Such estimate shall become a final assessment, due and payable to the Town ten (10) days from the date of mailing; provided, however, that within the ten (10) day period, the taxpayer may petition the Town Clerk in writing, under oath and under penalty of perjury, for a modification of the assessment, furnishing the documents showing the correct amount of such taxes due. The Town Clerk shall issue a written determination within ten (10) days of receipt of the petition, which determination shall be considered the final order of the Town subject to judicial review under C.R.C.P. 106(a)(4).

d)  The Town may certify the amount of any delinquent taxes as a charge upon the real property at which the taxable transaction occurred to the County Treasurer for collection i n the same manner as delinquent general ad valorem taxes are collected pursuant to Section 31-20-105, C.R.S.

e)  All penalties stated in this Section are cumulative, and the imposition of one- penalty shall not preclude the imposition of one or more additional penalties.

Section 3. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect application to other persons or circumstances.

Section 4. Effective Date. This Ordinance shall become effective on March 1, 2012.

 

INTRODUCED, FIRST READ, PASSED AND ORDERED POSTED ON FIRST READING THIS 13TH DAY OF FEBRUARY, 2012

PASSED, ADOPTED, AND APPROVED ON SECOND READING THIS 12TH DAY OF MARCH, 2012