(1) (a) (I) (A) Except as provided in subsections (1)(a)(I)(B), (1.3), and (1.5) of this section, every retailer shall, irrespective of the provisions of section 39-26-106, be liable and responsible for the payment of an amount equivalent to two and ninety one-hundredths percent of all sales made on or after January 1, 2001, by the retailer of commodities or services as specified in section 39-26-104.
(B) A retailer who has received in good faith from a qualified purchaser a direct payment permit number issued pursuant to section 39-26-103.5 shall not be liable or responsible for the collection and remittance of the tax imposed by this article on any sale made to the qualified purchaser that is paid for directly from such qualified purchaser's funds and not the personal funds of any individual.
(II) Repealed.
Every retailer shall, before the twentieth day of each month, make a return to theexecutive director of the department of revenue for the preceding calendar month. The executive director shall determine what information the returns must contain, how the returns must be made, and the type of forms that must be used.
(I) Every retailer shall remit, along with the return required in subsection (1)(b) ofthis section, an amount equivalent to the percentage on sales as specified in subsection (1)(a)(I) of this section to the executive director of the department of revenue, less an amount as set forth in subsection (1)(c)(II) or (1)(d) of this section to cover the retailer's expense in the collection and remittance of said tax.
For sales made prior to January 1, 2020, the amount retained by a retailer to coverthe retailer's expense in collecting and remitting tax pursuant to this section is three and onethird percent of all sales tax reported.
If any retailer is delinquent in remitting said tax, other than in unusual circumstances shown to the satisfaction of the executive director of the department of revenue, the retailer shall not be allowed to retain any amounts under this subsection (1)(c) or subsection
(1)(d) of this section to cover such retailer's expense in collecting and remitting said tax, and an amount equivalent to the said percentage, plus the amount of any local vendor expense that may be allowed by the local government to the vendor, shall be remitted to the executive director by any such delinquent vendor. Any local vendor expense remitted to the executive director shall be deposited to the state general fund.
(d) (I) For sales made on or after January 1, 2020, the amount retained by a retailer to cover the retailer's expense in collecting and remitting tax in accordance with this section is four percent of the tax reported; except that a retailer shall not retain more than one thousand dollars in any filing period.
A retailer with multiple locations is treated as a single retailer for purposes of thissubsection (1)(d) and is required to register all locations under one account with the department of revenue.
If a retailer is permitted to retain an amount to cover the retailer's expense in collecting and remitting local sales tax that is the same amount as permitted by the state under this section, then such amount is the amount that was permitted as of December 31, 2019.
(1.3) (a) As used in this subsection (1.3), unless the context otherwise requires:
"Alcoholic beverages drinking places industry" means establishments that may makesandwiches or light snacks available for consumption, that are open to the public, and are known as bars, taverns, sales rooms, vintner's restaurants, brew pubs, distillery pubs, nightclubs, or drinking places primarily engaged in preparing and serving alcoholic beverages for immediate, on-premise consumption. "Alcoholic beverages drinking places industry" does not mean breweries, distilleries, wineries, and retail liquor, or drug stores that offer tastings.
"Mobile food services industry" means retailers primarily engaged in preparing andserving meals, snacks, or nonalcoholic beverages for immediate consumption from motorized vehicles or nonmotorized carts. "Mobile food services industry" does not mean retailers delivering food prepared only by third parties and does not mean retailers shipping meal kits, heat-at-home meals, or other unprepared food to consumers for home consumption.
"Qualifying retailer" means a retailer doing business in the state that timely filessales tax returns as required under subsection (1)(b) of this section and section 39-26-109, and that operates in the alcoholic beverages drinking places industry, the restaurant and other eating places industry, or the mobile food services industry.
"Restaurant and other eating places industry" means establishments, not includingestablishments selling food from mobile vehicles, establishments presenting live theatrical productions and other entertainment facilities, hotels or bed and breakfast establishments, specialty food stores, vending machines, caterers or other food service contractors, or private cafeterias at workplaces, universities, or hospitals, that are open to the public, are known as restaurants, cafes, lunch counters, and carryout shops, and are primarily engaged in one of the following:
Providing prepared food services at a fixed, physical premises to patrons who orderand are served while seated, and who pay after eating;
Providing prepared food services at a fixed, physical premises to patrons who generally order or select items and who pay before eating; or
Preparing or serving specialty snacks or nonalcoholic beverages at a fixed, physicalpremises to patrons who pay before eating for consumption on or near the premises.
"Specified sales tax period" means sales made in November 2020, December 2020,January 2021, and February 2021, for which monthly returns must be filed pursuant to subsection (1)(b) of this section, on December 21, 2020, January 20, 2021, February 22, 2021, and March 22, 2021, respectively.
"State net taxable sales" means all sales made by the qualifying retailer during thespecified sales tax period of tangible personal property, commodities, and services as specified in section 39-26-104, less any deductions and exemptions authorized in this article 26, without regard to the deduction authorized in this subsection (1.3).
(b) (I) A qualifying retailer in the alcoholic beverages drinking places industry or in the restaurant and other eating places industry may deduct from state net taxable sales the lesser of state net taxable sales or seventy thousand dollars and retain the resulting sales tax collected for each month in the specified sales tax period.
(II) One deduction described in subsection (1.3)(b)(I) of this section is allowed per month for each of up to five fixed physical premises that are properly licensed under section 3926-103 (2)(a), to a qualifying retailer in the alcoholic beverages drinking places industry or in the restaurant and other eating places industry. No deduction is allowed for:
Nonphysical sites that are established for purposes of reporting sales delivered into ataxing area; or
Any temporary place of business or special event.
A qualifying retailer in the mobile food services industry may deduct from state nettaxable sales the lesser of aggregate state net taxable sales for all sites or seventy thousand dollars per motorized vehicle or nonmotorized cart, not to exceed five motorized vehicles or nonmotorized carts, and retain the resulting state sales tax collected for each month in the specified sales tax period.
If a qualifying retailer is in both the restaurant and other eating places industry andthe mobile food services industry, the qualifying retailer may claim the deduction for no more than five physical sites and for no more than five motorized vehicles and nonmotorized carts.
The qualifying retailer must continue to hold state sales taxes in excess of the amountretained in trust until paid to the department of revenue as specified in section 39-26-118.
The deduction and sales tax retention allowed in this subsection (1.3) applies to statenet taxable sales only. Qualifying retailers may not retain payment of city, county, or special district sales taxes collected by the department of revenue. Nothing in this subsection (1.3) prevents any local government from rebating sales taxes collected by qualifying retailers pursuant to a local ordinance.
This subsection (1.3) is repealed, effective December 31, 2026.
(1.5) (a) With respect to sales of tangible personal property, commodities, or services made by marketplace sellers in or through a marketplace facilitator's marketplace, a marketplace facilitator has all of the liabilities, obligations, and rights of a retailer or vendor under subsection (1) of this section and this article 26 whether or not the marketplace seller, because the marketplace seller is a multichannel seller:
Has or is required to have a license under section 39-26-103; or
Would have been required to collect and remit tax under this article 26 had the salenot been made in or through the marketplace.
The liabilities, obligations, and rights set forth in subsection (1.5)(a) of this sectionare in addition to any requirements the marketplace facilitator has under subsection (1) of this section if it also offers for sale tangible personal property, commodities, or services through other means.
Except as provided in subsection (3)(b) of this section, a marketplace seller, withrespect to sales of tangible personal property, commodities, or services made in or through a marketplace facilitator's marketplace, does not have the liabilities, obligations, or rights of a retailer or vendor under subsection (1) of this section and this article 26 if the marketplace seller can show that such sale was facilitated by a marketplace facilitator:
With whom the marketplace seller has a contract that explicitly provides that themarketplace facilitator will collect and remit sales tax on all sales subject to tax under this article 26; or
From whom the marketplace seller requested and received in good faith a certification that the marketplace facilitator is registered to collect sales tax and will collect sales tax on all sales subject to tax under this article 26 made in or through the marketplace facilitator's marketplace.
The executive director of the department of revenue may extend the time for makinga return and paying the taxes due under such reasonable rules as the executive director may prescribe, but no such extension shall be for a greater period than is provided for in section 3926-109.
(a) Except as provided in subsection (3)(b) of this section, the burden of proving that any retailer is exempt from collecting the tax on any goods sold and paying the same to the executive director of the department of revenue, or from making such returns, shall be on the retailer under such reasonable requirements of proof as the executive director may prescribe.
(b) (I) If a marketplace facilitator demonstrates to the satisfaction of the executive director of the department of revenue that the marketplace facilitator made a reasonable effort to obtain accurate information regarding the obligation to collect tax from the marketplace seller and that the failure to collect tax on any tangible personal property, commodities, or services sold was due to incorrect information provided to the marketplace facilitator by the marketplace seller, then the marketplace facilitator, but not the marketplace seller, is relieved of liability under this section for the amount of the tax the marketplace facilitator failed to collect, plus applicable penalties and interest.
If a marketplace facilitator is relieved of liability under subsection (3)(b)(I) of thissection, the marketplace seller is liable under this section for the amount of tax the marketplace facilitator failed to collect, plus applicable penalties and interest.
This subsection (3)(b) does not apply to any sale by a marketplace facilitator that isnot facilitated on behalf of a marketplace seller or that is facilitated on behalf of a marketplace seller who is an affiliate of the marketplace facilitator.
Every retailer conducting a business in which the transaction between the retailer andthe consumer consists of the supplying of tangible personal property and services in connection with the maintenance or servicing of the same shall be required to pay the taxes levied under this article upon the full contract price, unless application is made to the executive director of the department of revenue for permission to use a percentage basis of reporting the tangible personal property sold and the services supplied under such contract. The executive director is authorized to determine the percentage based upon the ratio of the tangible personal property included in the consideration as it bears to the total of the consideration paid under said combination contract or sale that is subject to the sales tax levied under the provisions of this part 1. This section shall not be construed to include items upon which the sales tax is imposed on the full purchase price as designated in section 39-26-102 (12).
(a) A qualified purchaser may provide a direct payment permit number to a retailer that is liable and responsible for collecting and remitting the tax imposed by this article on any sale made to the qualified purchaser. A qualified purchaser holding a direct payment permit number shall, before the twentieth day of each month subsequent to the month in which any sale to the qualified purchaser was made for which the qualified purchaser's direct payment permit number was used, make a return and remit directly to the executive director of the department of revenue the amount of such tax owing on all such sales to the qualified purchaser made in the preceding month. Such returns of the qualified purchaser or duly authorized agent shall contain such information and be made in such manner and upon such forms as the executive director shall prescribe.
Notwithstanding the provisions of section 39-21-113 (4), the department of revenueshall make available to all qualified purchasers an electronic list of all remote sellers and their Colorado account numbers in order to facilitate the qualified purchaser's appropriate remittance of tax pursuant to paragraph (a) of this subsection (5). Such list must remain confidential in the hands of the qualified purchaser, and the qualified purchaser is subject to the same limitations specified in section 39-21-113 (4) that apply to the department of revenue, including the requirement that such list be used only for the purpose of proper administration of the tax.
From the amount of the tax required to be remitted pursuant to subsection (5)(a) ofthis section, a qualified purchaser shall be entitled to retain the amount specified in subsection (1)(c)(II) or (1)(d) of this section that a retailer would otherwise be entitled to retain to cover the retailer's expense in collecting and remitting the tax imposed by this article 26 if the qualified purchaser had not provided a direct payment permit number to the retailer.
Source: L. 35: p. 1006, § 5. CSA: C. 144, § 5. L. 37: p. 1082, § 1. L. 45: p. 578, § 2.
CRS 53: § 138-6-5. C.R.S. 1963: § 138-5-5. L. 64: p. 817, § 3. L. 65: p. 1122, § 1. L. 67: p. 523, § 1. L. 70: p. 395, § 1. L. 76: (1)(a) amended, p. 785, § 1, effective April 6. L. 89: (1)(a) amended, p. 1502, § 8, effective July 1, 1990. L. 99: (1) amended and (3) added, p. 12, § 3, effective January 1, 2000. L. 2000: (1)(a) amended and (1)(e) added, p.1431, § 2, effective May
31. L. 2001: (1)(a) amended, p. 1280, § 56, effective June 5. L. 2003: (1)(a) and (1)(e) amended, p. 2635, § 1, effective June 5. L. 2009: (1)(f) added, (SB 09-212), ch. 3, p. 6, § 1, effective February 26; (1)(f)(I) amended, (SB 09-275), ch. 273, p. 1234, § 1, effective May 18. L. 2010: (1)(a) amended and (1)(e) repealed, (SB 10-212), ch. 412, pp. 2035, 2032, §§ 10, 1, effective July 1. L. 2011: (1)(g) added, (SB 11-223), ch. 154, p. 534, § 1, effective May 5. L. 2013:
(1)(g)(I) amended, (HB 13-1295), ch. 314, p. 1651, § 6, effective May 28; entire section R&RE, (HB 13-1295), ch. 314, p. 1649, § 5, effective July 1, 2014. L. 2019: (1)(a)(I)(A), (1)(b), (1)(c)(I), (1)(c)(II), and (3) amended, (1)(a)(II) repealed, and (1.5) added, (HB 19-1240), ch. 264, p. 2498, § 4, effective October 1; (1)(c)(I), (1)(c)(II), (1)(c)(III), and (5)(c) amended and (1)(d) added, (HB 19-1245), ch. 199, p. 2158, § 6, effective October 1. L. 2020, 1st Ex. Sess.:
(1)(a)(I)(A) amended and (1.3) added, (HB 20B-1004), ch. 3, p. 22, § 2, effective December 7.
Editor's note: Subsection (1)(g)(I) was amended in House Bill 13-1295. Those amendments are superseded by the repeal and reenactment of this section in the same House Bill 13-1295, effective July 1, 2014.
Cross references: (1) For the legislative declaration in the 2013 act amending this section, see section 1 of chapter 314, Session Laws of Colorado 2013.
For the short title ("Affordable Housing Act of 2019") and the legislative declarationin HB 19-1245, see sections 1 and 2 of chapter 199, Session Laws of Colorado 2019.
For the legislative declaration in HB 20B-1004, see section 1 or chapter 3, SessionLaws of Colorado 2020, First Extraordinary Session.