HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/01/2020 - FIRST READING OF ORDINANCE NO. 111, 2020, AMENDING Agenda Item 13
Item # 13 Page 1
AGENDA ITEM SUMMARY September 1, 2020
City Council
STAFF
Jennifer Poznanovic, Project and Revenue Manager
Ryan Malarky, Legal
SUBJECT
First Reading of Ordinance No. 111, 2020, Amending Chapter 25 of the Code of the City of Fort Collins
Regarding Economic Nexus and the Obligation of Remote Sellers to Collect and Remit Sales Tax.
EXECUTIVE SUMMARY
The purpose of this item is to discuss the proposed adoption of an Ordinance to require remote sellers to
collect and remit City sales tax. The Ordinance is based on a model ordinance prepared by a working group of
municipal attorneys and municipal finance staff, coordinated by the Colorado Municipal League (CML). With
adoption of the Ordinance, the City Manager will enter into an agreement with the Colorado Department of
Revenue to allow such taxpayers to remit tax to the City using the Department’s single point of remittance
software.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
U.S. Supreme Court Decision in South Dakota v. Wayfair, Inc.
Under the City’s sales and use tax ordinances, sales tax is levied on all sales and purchases of tangible
personal property and taxable services at retail unless prohibited under the constitution or other law of the
United States. In June 2018, the United States Supreme Court decided the case of South Dakota v. Wayfair,
Inc., 138 S.Ct. 2080 (2018). South Dakota enacted a statute requiring internet sellers with no physical
presence in the state to collect and remit sales tax, which was not allowed under prior Supreme Court rulings.
In Wayfair, the Supreme Court overturned its prior rulings that had held that a state may only tax a retailer if
that retailer has a physical presence in the state. The Wayfair court held that an out-of-state retailer’s physical
presence in the taxing state is not necessary for the state to require the seller to collect and remit its sales tax.
Rather, a state could require an out-of-state retailer to collect and remit its sales tax if the retailer has a
substantial economic nexus with the state. The Supreme Court approved of South Dakota’s system finding it
did not place an unconstitutional burden on interstate commerce, because the system set a threshold amount
below which smaller retailers did not have to collect tax, provided a statewide single point of remittance and tax
administration, simplified tax rate structures, set other uniform rules, and applied only prospectively after its
adoption.
The CML Sales Tax Simplification Committee met in October 2018 and all self-collected home rule
municipalities agreed to continue voluntary compliance to keep the municipal sales tax system in the state as
simple as possible. Through the Committee’s direction, a group of municipal attorneys and municipal finance
staff worked to develop a model ordinance with uniform definitions and requirements. The intent behind the
model ordinance is to clarify who can collect and remit taxes along with clarifying the authority given to taxing
jurisdictions by the U.S. Supreme Court in the Wayfair case. The stated goal behind the ordinance is
uniformity and simplicity so that all municipalities in Colorado can collect tax from online or remote retailers.
Agenda Item 13
Item # 13 Page 2
Colorado Department of Revenue (DOR) Implementation of Wayfair
In July 2019, State House Bill 19-1240 established an economic nexus for purposes of state sales tax on retail
sales made by retailers without a physical presence in Colorado. As of October 2020, HB19-1240 requires
marketplace facilitators (a person that operates an online marketplace, such as Amazon) to collect and remit
sales tax on behalf of marketplace sellers (a person that sells goods through the online marketplace). While
HB19-1240 has set some precedent in Colorado for the collection of sales tax from retailers without physical
presence, its requirements do not apply to sales taxes imposed by home rule municipalities, which have their
own taxing authority under the Colorado Constitution.
In furtherance of HB19-1240, the Colorado Department of Revenue has developed a software system to allow
retailers a single point to remit sales tax. The Department has made the system available for home rule
municipalities to collectively provide retailers a system similar to the one operated by South Dakota. The
Department collects state and local sales tax from out-of-state retailers for those taxing entities for which it
already collects sales tax from in-state retailers. The Department collects for approximately 265 jurisdictions,
150 statutory cities, 24 home rule municipalities and all but two counties.
Colorado Department of Revenue’s Single Point of Remittance Software (SUTS System) & Single GIS
System
The Department’s single point of remittance software, including the SUTS System and GIS System, is an
option for the numerous self-collecting taxing jurisdictions to align more closely with the South Dakota tax
system. Remote sellers with sufficient economic nexus can file and pay tax via the SUTS System to those
taxing jurisdictions that have chosen to participate in the system. The SUTS System would be available for any
business, not just those whose only contact with the City is economic nexus. Businesses with physical
presence could file and remit taxes using the SUTS System. Businesses with physical presence in the City
would still need to have a Fort Collins sales tax license. The SUTS System vendor will charge a $17,500 fee to
integrate the SUTS System with the City’s current software, but the SUTS System can also be used manually
without a fee. The portal is essentially an additional filing option for businesses, meaning businesses could file
on paper, using the City’s online system, or via the Department’s SUTS System.
What Are Other Cities Doing?
Staff has had conversations with other municipalities regarding efforts those municipalities may make to
require remote sellers to collect and remit tax. Based on City staff’s most recent conversations, the following is
a list of municipalities and their possible course of action:
• Denver - Plans to participate, SUTS first and model ordinance later this fall.
• Colorado Springs - SUTS agreement and model ordinance already signed.
• Boulder - Plans to participate, SUTS first and model ordinance later this fall/early 2021.
• Aurora - Marketplace Facilitator adopted, SUTS System and Economic Nexus this fall.
• Golden -SUTS agreement signed, model ordinance later this summer.
• Thornton - Plans to participate, SUTS System first and model ordinance later.
• Centennial - Plans to participate, no use tax, may have issues with economic nexus.
According to the Department and CML, the more home rule municipalities that participate, the more likely it is
that the municipal sales tax system in Colorado will align with the South Dakota system approved in Wayfair.
As of August 10, 2020, 34% of self-collected home rule municipalities have the SUTS agreement under review,
35% are pending signatures, 28% are on the SUTS System and 3% have a staffing delay.
The Case for Self-Collected Home Rule Municipalities - Why Fort Collins is Not State-Collected
A major benefit for self-collected home rule municipalities is the authority to locally collect sales tax and
maintain control of their sales tax base. For example, the State of Colorado has 87 sales and use tax
exemptions. Self-collected home rule municipalities typically have broader sales tax bases than the State.
Another advantage is more targeted collection and enforcement. Local programs can more thoroughly educate
businesses and follow up with auditing where appropriate. The SUTS System and model ordinance are
compatible with maintaining home rule self-collecting status.
Agenda Item 13
Item # 13 Page 3
Top Internet Retailers Licensed in Fort Collins
Nationally, e-commerce represents 11.8%* of total retail sales. Of the top 10 U.S. companies based on
percentage of e-commerce sales, five are licensed in Fort Collins (see chart below).
*U.S. Census Quarterly Retail E-Commerce Sales 1st Quarter 2020
**Top 10 US companies based on % of e-commerce sales, eMarketer, July 2018
COVID-19 & e-commerce
During the current pandemic, e-commerce is quickly replacing physical channels. According to “The
Quickening” in McKinsey Quarterly 2020, U.S. e-commerce penetration has seen the same growth in three
months as the previous ten years of growth.
CITY FINANCIAL IMPACTS
Dollars at Stake
The State estimates $72 million in sales tax revenue in 2020 from retailers having economic nexus and
marketplace facilitators.* $72 million is equivalent to 2.1% of estimated State collections in 2020. In Fort
Collins, 2.1% is equivalent to $2.5 million. It is important to note that some retailers are already remitting
voluntarily in Fort Collins.
Regarding marketplace facilitators, some have turned off collection of local taxes on behalf of sellers, leaving
them no way to collect the tax. Also, Amazon has indicated that more than half of the items sold on Amazon
are through their third-party marketplace.**
Additional sales tax staffing may be needed due to increased license volume and workload implications of
additional revenue. Staff will evaluate further, but current estimates are one full time employee (FTE) or a
partial FTE. With the implementation of the SUTS System, the Sales Tax Department will evaluate the need for
software integration or implementing a new software system.
*Colorado Legislative Council Staff – Economic & Revenue Forecast December 2019, p.28
**Amazon 2017 Annual Report, Letter to Shareholders
BOARD / COMMISSION RECOMMENDATION
On June 15, 2020, the Council Finance Committee supported bringing an ordinance for Council consideration
to require certain remote sellers and marketplace facilitators to collect and remit City sales tax.
Agenda Item 13
Item # 13 Page 4
ATTACHMENTS
1. Council Finance Committee Minutes (PDF)
2. Sales and Use Tax Software System Report (PDF)
3. Powerpoint Presentation (PDF)
Finance Administration
215 N. Mason
2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6788
970.221.6782 - fax
fcgov.com
Finance Committee Meeting Minutes
June 15, 2020
10 am - noon
Zoom Meeting
Council Attendees: Mayor Wade Troxell, Ross Cunniff, Ken Summers
Staff: Darin Atteberry, Kelly DiMartino, Carrie Daggett, John Duval, Travis Storin, Tyler Marr,
Blaine Dunn, Caryn Champine, Dean Klingner, Noelle, Currell, Chad Crager, Kelley
Vodden, Lawrence Pollack, Cody Forst, Claire Turney, Dave Lenz, Jo Cech, Zack Mozer,
Jennifer Poznanovic, Ryan Malarky, Teresa Roche, Lance Smith, Chris Martinez, Mark
Anderson, Christine Macrina, Peggy Streeter, Erik Martin, Carolyn Koontz
Others: Kevin Jones, Chamber of Commerce
____________________________________________________________________________________
Meeting called to order at 10:08 am
Approval of Minutes from the May 18, 2020 Council Finance Committee Meeting. Ross Cunniff moved for approval
of the minutes as presented. Ken Summers seconded the motion. Minutes were approved unanimously.
A. 2020-2021 Budget & Financial Update
Travis Storin, Interim Chief Financial Officer
Blaine Dunn, Interim Accounting Director
SUBJECT FOR DISCUSSION: 2020-2021 Budget and Financial Review
2019 Fund Balance Review
EXECUTIVE SUMMARY
The purpose of this agenda item is to review:
• The known financial impacts of the COVID-19 pandemic
• The projected 2020-2021 financial scenarios
• Progress against the financial scenarios and remaining shortfall
• Detailed balances for year-end 2019 reserves
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
• Does the Finance Committee have any questions/input to share regarding staff’s status and
timeline?
• Is the Committee supportive of the process to provide for Council acknowledgement of the 2020
budget cuts?
• Are there questions on the approach to 2021 reduction offers?
ATTACHMENT 1
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BACKGROUND/DISCUSSION
May Tax Collections
As discussed with Finance Committee early in the pandemic, staff anticipates that the general
economic impacts of the COVID-19 pandemic to have a severe impact to City revenues. While those
impacts are still difficult to quantify, May financial results represented the first full month’s data point
for gaining this understanding. The below table summarizes May sales and use tax (collections in May
on April taxable sales):
Given that the stay-at-home orders and general economic halt took hold in mid-to-late March, a 23.9%
contraction of sales/use tax collections in April indicates a potential low point of the initial economic
shock.
Current shortfall projections
As part of the Analysis & Forecasting workstream, staff has developed a revenue forecasting model
that allows for individual risk adjustment of approximately 200 different revenue streams across
multiple scenarios. The below table represents the four scenarios staff has developed:
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These figures represent an improvement over the April 22nd model’s output for 2020, although the ongoing 2021
revenue shortfall remains very similar. This model also does not currently account for a resurged COVID-19
outbreak in late Q3 and into Q4.
Considering continued uncertainty, staff is maintaining that all four scenarios are possible, however
scenario A is increasingly unlikely. The Q2 downturn would indicate we are more likely moving toward
Scenario C or D.
Use of reserves
Industry best practices are heavily focused on prescriptive or formulaic maintenance of minimum
reserve balances. However, those best practices are generally silent on advising use of those reserves.
As a result, staff has established a set of judgmental operating principles. The three possible reserve
options are:
• Match staff-identified budget cuts
• Backfill our one-time losses vs. the ongoing shortfall
• Backfill the 3-month deficit experienced during Q2 from reserves; balance the 2020 budget for July-
December.
For each option, it is a core operating principle to draw only an amount that can be reasonably repaid
within a 3-5-year window starting in 2022.
2020 Scenario Progress
In the weeks since this work has begun, staff has identified $19M in backfill for the 2020 shortfall prior
to the use of reserves. Scenario C would indicate a remaining gap of $3M+, and Scenario D would
indicate a remaining gap of $7-$12M depending on the amount of reserves used.
Staff is transitioning its efforts toward budget adjustments that may have a service level or program
impact. The remainder of May and June will be spent on establishing a portfolio of options that over-
solve for the gap by a multiple of 2.5-3x, so that multiple options/configurations can be considered in
how to make up the remaining gaps.
Next steps
The trigger points for executing on budget cuts with a significant impact to services, employees, or the
community are in June. In the meantime, staff is carefully putting together its contingency plan for
each of the four scenarios. The Budget Lead Team is meeting for 2-hour work sessions throughout June
and July. The objective is to present a balanced 2020 by June 30 and a balanced 2021 by July 31. From
July forward, the process will closely resemble previous years in how the City Manager’s
Recommended Budget is created, and the Council-adopted budget is considered.
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DISCUSSION / NEXT STEPS;
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
• Does the Finance Committee have any questions/input to share regarding staff’s status and
timeline?
• Is the Committee supportive of the process to provide for Council acknowledgement of the 2020
budget cuts?
• Are there questions on the approach to 2021 reduction offers?
$22 - 41M current range for shortfall
2021 proving to be rather inelastic in our modeling - $19M ongoing shortfall
Dave Lenz; function of recovery level - that is why 2021 numbers are stickier
Ken Summers; the downturn months – is that April /May / June?
Travis Storin; Sales & Use Tax runs a month in arrears - April / May /June - correct
Ken Summers; are you factoring in restaurants and businesses that are functioning at a percentage of their
capacity?
Dave Lenz; it is factored in and that is why we are seeing some improvement - by shortening the downturn - the
recovery starts sooner
Ken Summers; real factor is - if you get a basis of what the sales tax revenue is for restaurants – I guess we don’t
really know when that will change - sales tax for restaurants at 50% sets a new bar – seasonality of new outdoor
dining space
Dave Lenz; CSU Team helping us with modeling - shorter term impacts / long term unemployment -
A lot of uncertainty - one of the things – W curve – if relapse – second dip – also, stimulus checks in April – not
sure when that spending took / will take place - factor
Ross Cunniff; there is a bit of upside potential here if future economic stimulus can be effective – we should not
plan for it, but we should certainly advocate for it
Mayor Troxell; CSU student impact - a few hundred students here for summer versus normal student population
of 32K - thinking of fall - CSU is not going to do furloughs and layoffs - they are financing the future now and
that will have a positive impact on our community due to employment base
Dave Lenz; usually summer tourist spending makes up for some of that shortfall – lodging component – vacancy
rates – professors from CSU are looking at that – less out of state? International students? Loss of students for
the summer – what happens when they come back
Travis Storin; CSU is refinancing much of their debt at a lower interest rate. We are grateful for the partnership
with the CSU business school team support – national trending and media. Risks of a W shaped model - velocity
of information in that each month these numbers will shift – what did we tell you before – what are we telling
you now – level of cuts we have identified -
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Governor’s office allocated $30.6M to Larimer County for CARES - we are involved in discussions regarding how
best to allocate - this is for direct recovery
Looking at a remaining gap of $3-11M – we have set June 30th as the date to close the remaining 2020 gap.
We will give an update on community engagement strategy at the July 20th Council Finance Committee meeting.
Solving to 15% will allow us multiple menus of options to present to Council - reality is approximately 7%
Ken Summers; what are the General Fund reserves would be available without re prioritizing (slide 26)
Travis Storin; $10.6M far right side - available for nearly any purpose - almost immediately accessible
Ross Cunniff; will we be adjusting that based on budget cuts?
Travis Storin; the policy is based on most recent fiscal year expenses - we would be required to have lesser
reserves, but you may decide as policy makers to keep it at the higher amount.
Ross Cunniff; wondering if we would want to consider some policy adjustments in that regard
Ken Summers; if we use $10-15M reserves for 2020 - what does that leave us for 2021?
Travis Storin; to provide you that information clearly - we will include fund draws by year in the July 20th Council
Finance update if we were to draw $10-15M in 2020 we would still have access to reserves in 2021.
Ken Summers; given the scenario we are in - in terms of recovery, my inclination would be to use more than less
Moving forward – good time for us to establish a reserve policy - if TABOR is $7.1M and then we have another
$10M available – how does that factor into – what number is 3 months of General Fund operating expenses – if
what we have now what we should always have going forward or -
Darin Atteberry; Ken, you have been very consistent from day 1 of Covid. At our next conversation, if reserves
are going to be part of the strategy – we need to dig in. I think we need to be very intentional about specific
reserves and how we are going to use those. The range of $10-20M makes a huge difference in reductions that
need to take place. That level of detail is appropriate - reserve by reserve - it is not a rainy day - it is a hurricane
- we need to spend more time at the reserve fund level and we need to have these conversations soon.
Travis Storin; (referred back to slide 12) I agree and I would see us laying it out fund by fund for 2020 and 2021;
1) the shortfall, 2) budget cuts to date, 3) available reserves, 4) recommended use of those reserves – expanded
out to a matrix – the altitude that we have been solving this - operating with the knowledge that moving to late
June and July we will be at a more granular level of detail.
Darin Atteberry; thinking about replenishing those reserves and future uses that were planned.
Some may be good to look at 4-5 years - may be a separate layer. As Council is contemplating use of those
reserves.
Travis Storin; We can be ready to have these conversations within the next couple of weeks.
We would need Council approval in order to tap the $7.1M TABOR reserves.
Blaine Dunn presented the Fund Balance portion of the presentation (starting with slide #20)
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We generally bring this information to Council Finance annually after the audit is finalized.
Different cadence this year - note that the audit is not finalized, and the General Fund is the only fund with an
unassigned balance.
Mayor Troxell; a lot of good information and good thought – appreciate all of the work.
Ross Cunniff; I wanted to let you know that the other Council members are welcome to attend our Council
Finance Committee meetings if they want to. The first work session for 2021 is September 8th
Darin Atteberry; I am having 1:1 conversations with Council members and we are meeting with the other non-
Council Finance Committee Council members on a regular basis to message consistently.
B. Impacts of Wayfair Court Decision / Opportunities to City
Jennifer Poznanovic, Sr. Project & Revenue Manager
SUBJECT FOR DISCUSSION
Impacts of the U.S. Supreme Court’s Wayfair Decision and City Collection of Sales Tax from Remote Sellers
EXECUTIVE SUMMARY
The purpose of this item is to provide an update on impacts from the U.S. Supreme Court’s South Dakota v.
Wayfair, Inc. decision (June 2018) since the last update to Council Finance Committee in November 2018. In
that case, the Supreme Court overruled its prior holdings that a state may only tax a retailer if that retailer has a
physical presence in the state. The Wayfair court held that a state can require an out-of-state retailer to collect
tax so long as that retailer has a “substantial nexus” connecting it to the state. The Supreme Court approved the
system administered by South Dakota, which set thresholds above which a retailer had to collect tax, provided a
statewide single point of remittance, and applied only prospectively after its adoption.
The Colorado Municipal League (CML) Sales Tax Simplification Committee met in October 2018 and all self-
collected home rule cities agreed to move forward with voluntary compliance to keep the sales tax system as
simple as possible, in an effort to align with the system the Supreme Court approved in Wayfair. Per CML, if all
72 self-collecting home rule cities were to implement their own collection from out-of-state retailers, it would
likely cause a challenge under the Wayfair case because the varied tax requirements would arguably result in an
undue burden to those retailers in violation of the U.S. Constitution.
State House Bill 19-1240 established at the State level the parameters for what constitutes sufficient “economic
nexus” to require retailers without a physical presence in the State to collect and remit sales tax. The bill also
established requirements from when marketplace facilitators (like Amazon or Walmart) are required to collect
and remit sales tax on behalf of third-party sellers. These requirements do not extend to home rule
municipalities. The State’s single point of remittance software is an option for taxing jurisdictions to collectively
provide retailers a system similar to the one South Dakota had, which the U.S. Supreme Court looked upon
favorably in the Wayfair case. Collective participation in such a system may reduce the risk of a constitutional
challenge. If self-collected home rule municipalities move away from accepting voluntary compliance from
retailers and towards mandating that remote sellers collect tax, the planned approach is to require such
collection only from remote sellers that have economic nexus in the municipalities. CML and the Sales Tax
Simplification Committee has crafted a model ordinance, which has language defining economic nexus and
marketplace facilitators, and creating a legal structure governing the collection and remittance of tax from
remote sellers.
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GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
Does Council Finance Committee support legal review of the State’s single point of remittance software and
model ordinance as the next step?
BACKGROUND/DISCUSSION
Wayfair Decision, June 2018
In the Wayfair case, the U.S. Supreme Court held that South Dakota could impose a sales tax filing obligation on
any remote seller who had a substantial nexus with the state, and that a physical presence was no longer
necessary. Prior to the Wayfair case, the Supreme Court had held that a taxing jurisdiction could not require a
retailer to collect sales tax unless the retailer had a physical presence in the jurisdiction. The Supreme Court
upheld South Dakota’s determination that a retailer without a physical presence has a substantial enough nexus
to require sales tax collection when the retailer has annual sales of at least $100,000 or has 200 separate sales
transactions of any amount. The Supreme Court looked favorably on South Dakota’s law for several reasons.
South Dakota’s law created a threshold for sales, which protected smaller sellers. South Dakota is also a member
of the Streamlined Sales & Use Tax Agreement, providing online retailers some simplification in complying with
the requirement. Also, the law was not applied retroactively, but instead only for future transactions after the
passage of the requirement.
Colorado Department of Revenue (DOR) Implementation of Wayfair
In July 2019, State House Bill 19-1240 established economic nexus for purposes of retail sales made by retailers
without physical presence. The bill also codified destination sourcing, and as of October, requires marketplace
facilitators to collect and remit sales tax on behalf of marketplace sellers. A marketplace facilitator is an
individual or legal entity that operates a marketplace (i.e. Amazon, Etsy). A marketplace seller is someone who
sells good through a marketplace facilitator.
The State collects state and local sales tax from out-of-state retailers for any taxing entities for which it already
collects in-state sales tax. The DOR collects for approximately 265 jurisdictions, 150 statutory cities, 24 home
rule municipalities and all but two counties.
Self-Collecting Home Rule Municipalities and Wayfair
Fort Collins is one of 72 self-collecting home rule municipalities. Under the Colorado Constitution, home rule
municipalities have autonomy over their sales tax with their own separate registration, licensing, forms,
auditors, and tax base. In other words, home rule municipalities are like separate taxing jurisdictions within the
State of Colorado.
The CML Sales Tax Simplification Committee met in October 2018 and all staff representatives from self-
collected home rule cities agreed to move forward with voluntary compliance. South Dakota had three key
characteristics that the Supreme Court looked upon favorably in upholding South Dakota’s taxing requirement:
(1) a threshold limit; (2) a ban on applying the requirements retroactively; and (3) a single tax administration
system. It is CML’s position that, if all 72 self-collecting home rule municipalities were to implement their own
mandatory collection from out-of-state retailers, it would increase the risk of a retailer challenging such
collection as being contrary to the Wayfair case, and therefore, unconstitutional.
DOR’s Single Point of Remittance Software (SUTS System) & Single GIS System
The DOR’s single point of remittance software, including the SUTS System and GIS System, is an option for the
numerous self-collecting jurisdictions to align with what South Dakota did in an effort to reduce the risk of a
constitutional challenge. Remote sellers with sufficient economic nexus can file and pay via the SUTS System.
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The SUTS System would be available for any business, not just those whose only contact with the City is
economic nexus. Businesses with physical presence could file and remit taxes using the SUTS System.
Businesses with physical presence in the City would still need to have a Fort Collins sales tax license. The SUTS
System vendor will charge a $17,500 fee to integrate the SUTS System with the City’s current software, but the
SUTS System can also be used manually without a fee. The portal is essentially an additional filing option for
businesses, meaning businesses could file on paper, using the City’s online system, or via the DOR’s SUTS
System.
CML’s Model Ordinance
CML has consulted with municipal attorneys and finance staff regarding the drafting of a model ordinance to
establish a uniform system across the numerous municipalities. The ordinance establishes a definition for
economic nexus, which would identify who is taxed and who is compelled to collect the tax. This definition of
the economic nexus relates to the City’s definition of engaged in business. The ordinance also defines what a
marketplace facilitator is and would also identify who collects the tax. This definition relates to the City’s
definition of a retailer. CML is suggesting that municipalities adopt the model ordinance if municipalities decide
to move away from relying on retailers’ voluntary compliance and instead mandate collection by remote sellers
that only have economic nexus. CML recommends this is for municipalities that are going to use the DOR single
point of remittance software, with the intent of creating uniformity in the State.
What Are Other Cities Doing?
• Boulder – too soon and too much risk
• Aurora – ordinance at Council, ready to move ahead
• Golden – plans to participate, SUTS System first as admin decision, model ordinance this summer
• Thornton – plans to participate, SUTS System first and model ordinance later
• Centennial – plans to participate, no use tax, may have issues with economic nexus
According to DOR and CML, most home rule cities need to participate to keep the sales tax system as simple as
possible to most closely align with the South Dakota system approved in Wayfair. DOR representatives have
stated to City staff that it is critical for larger home rule municipalities, like Fort Collins, to join.
The Case for Self-Collected Home Rule Municipalities - Why Fort Collins is Not State-Collected
A major benefit for self-collected home rule municipalities is the authority to “locally collect” sales tax and
maintain control of their sales tax base. For example, the State has 87 sales and use tax exemptions. Self-
collected home rule municipalities typically have broader sales tax bases than the State. Another advantage is
more targeted collection and enforcement. Local programs can more thoroughly educate businesses and follow
up with auditing where appropriate. The SUTS System and model ordinance are compatible with maintaining
home rule self-collecting status.
Top Internet Retailers Licensed in Fort Collins
Nationally, e-commerce represents 11.8%* of total retail sales. Of the top 10 U.S. companies based on
percentage of e-commerce sales, five are licensed in Fort Collins (see chart below).
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*U.S. Census Quarterly Retail E-Commerce Sales 1st Quarter 2020
**Top 10 US companies based on % of e-commerce sales, eMarketer, July 2018
Dollars at Stake
The State estimates $72 million in sales tax revenue in 2020 from retailers having economic nexus and
marketplace facilitators*. $72 million is equivalent to 2.1% of estimated State collections in 2020. In Fort Collins,
2.1% is equivalent to $2.5 million. It is important to note that some retailers are already remitting voluntarily in
Fort Collins.
Regarding marketplace facilitators, some have turned off collection of local taxes on behalf of sellers, leaving
them no way to collect the tax. Also, Amazon has indicated that more than half of the items sold on Amazon are
through their third-party marketplace**.
*Colorado Legislative Council Staff – Economic & Revenue Forecast December 2019, p.28
**Amazon 2017 Annual Report, Letter to Shareholders
Options
1. Continue voluntary compliance (current state)
2. Pursue SUTS System and model ordinance (staff recommendation)
• City stays self-collected
• Voluntary compliance becomes mandatory
• Additional filing option for businesses
DISCUSSION / NEXT STEPS;
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
Does Council Finance Committee support legal review of the State’s single point of remittance software and
model ordinance as the next step?
$17.5K fee for SUTS system software integration (on slide 8) would need to be paid by city of Fort Collins
Mayor Troxell; does that include the personnel time to integrate it?
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Jennifer Poznanovic; software we use is MS Govern - Arvada also uses MS Govern and they were quoted $60K
for integration.
Mayor Troxell; Wyoming collects at the state level – the tendency to redistribute sales tax funds between cities
for various reasons at various times - how do you plan as a city when that revenue arbitrarily moves around?
We are fortunate to be self-collected.
Jennifer Poznanovic: CML is engaging legal teams across the front range home rule cities and they have been
participating in these conversations and helping with the model ordinance language and reviewing
documentation with providers.
Mayor Troxell; I really appreciate the CML and it is for all of the right reasons we are trying to make the Wayfair
example operational and I really appreciate city staff’s participation in that.
Mayor Troxell; I am supportive of the staff recommendation – we have been involved with this when it was at
the NLC level with regards to Main Street fairness to the Wayfair decision to working with CML.
Jennifer, you did a great job outlining the recommendations and what is going on behind the scenes. Thank you
Ken Summers; staff recommendation seems to make sense – from implementation costs to maintain our self-
collected status.
Ross Cunniff; I would like to know more about the ordinance. Would this make it more difficult for future
Councils if they wanted to consider a tax on out of state services – would that constrain any of this?
Jennifer Poznanovic; I would want to consult with legal on that.
Ross Cunniff; a follow up memo would be fine
Mayor Troxell; in South Dakota where the Wayfair decision took place it is only at the state level – so when you
look at Colorado and how we operate and it is much more complex as it relates to this type of decision. How do
you self-collect and so forth.
Darin Atteberry; I have been briefed on this prior to this meeting. Travis and Jennifer have done great work, and
this is a solid recommendation and I am supportive of the direction.
Mayor Troxell; Ross Cunniff’s question is a good one with regards to ordinance language and there might be
unintended consequences that we should think about that are very germane to Fort Collins so that due diligence
is good advice.
Carrie Daggett; one of the things we can do as we are working on the ordinance to bring to Council would be to
consider where there might be opportunities to tailor language that won’t interfere with the concerns CML has
rightly identified regarding consistency from jurisdiction to jurisdiction. There will some things that we might be
able to do that might allow us to address the questions such as the one that Ross raised.
Mayor Troxell; it is a model ordinance and work with David Broadwell (Denver City Attorney) and make sure the
overall intent of working together is not unduly compromised but recognize how we have operated as a city.
11
Other Business;
Travis Storin; I wanted to make the Council Finance Committee aware of the request for an appropriation for the
non-congregate shelter
It would be staff’s intention to bring a $400K appropriation request for non-congregate shelter forward on the
June 23rd agenda. We did get pre-approval from FEMA that this is a qualifying project. That does not constitute
a FEMA guarantee, but we also think they are back up options for outside funding including the Governor’s
allocation of CARES. There are a couple different funding options. You are all familiar with the pace and
criticality of this – conversations that have taken place over the last few Council meetings.
Mayor Troxel; at LPT we confirmed that we are planning to adjourn on June 23rd for this purpose and others.
Meeting adjourned at 11:36 am
Colorado Sales & Use Tax
Software (SUTS) System
Summary Report: July 8, 2020
ATTACHMENT 2
Colorado Sales & Use Tax Software “SUTS” System
Summary Report: July 8, 2020
Table of Contents
Executive Summary ……………………………………………………………….….… Page 2
Background………………………………………………………………………….….... Page 2
Controlled Launch………………………………………………………………….……..Page 3
Budget……………………………………………………………………………….……..Page 4
Project Management Methodology …………………..……………………………..….. Page 5
Change Management Plan ……................................................................................ Page 5
Maintaining the SUTS System..................................................................................Page 6
Stakeholder Engagement & Governance ….…………………………………………..Page 6
Stakeholder Feedback……………………………………………………………………. Page 7
Appendix A: The Consortium……………………………………………………………..Page 8
Appendix B: SUTS Vendors……………………………………………………………….Page 9
For more information on the SUTS system:
●SUTS general information for description, updates, consortium members, etc.
●SUTS Portal for businesses to look up tax rates, sign up, log in, remit tax, etc.
●Call Center support for general questions: (303) 238-7378
●Joining SUTS if you are a Home Rule jurisdiction: email Tracy.Winchester@state.co.us
●CML Model Ordinance assisting Home Rule jurisdictions seeking to join SUTS
●Press inquiries: email Meghan.Tanis@state.co.us
Executive Summary
The Sales and Use Tax Software (SUTS) allows businesses to go to a single web “portal”
(website) to find all sales and use taxes associated with a specific destination, as well as
credits and deductions, and file a single remittance that will then go to multiple jurisdictions.
SUTS was exceptionally successful in every way:
(a)The SUTS development was completed on May 6, 2020, seven weeks ahead of what
was already an aggressive estimate of June 30, 2020.
(b)The SUTS budget was $18,750,000 over fiscal years 2020 and 2021, but SUTS was
completed at almost $6 million under budget for FY20 and $4.6 million under budget
for FY21. About $10.6 million in savings (56.30% of the appropriation) was given back
to the General Fund at a critical time given the overall budget shortfalls due to
COVID-19.
(c)The SUTS functionality exceeded the minimal viable product established at the start,
allowing lookups of sales and use tax but also credits and exemptions with a robust
remittance service.
(d)The SUTS acceptance rate also exceeded expectations. The original requirement was
for three of the 71 self-collecting-tax municipalities to voluntarily use the system upon
launching online and to reach 100% engagement within three years. As of July 6, 2020,
twelve (17%) have already signed on, 24% more are in the process of approval, and 48%
more are in the evaluation stage.
(e)SUTS yearly maintenance & support is far less than originally anticipated and less than
maintaining a system in-house. Starting in FY22, support is estimated to be only about
$2.2 million (see “Budget” below), which includes vendors, hosting, call center and
infrastructure support for all jurisdictions across Colorado, which
The significant success of SUTS illustrates the collaboration achieved between state
government, local jurisdictions, vendors, and the business community. SUTS is a
first-of-its-kind software program for the state of Colorado, developed using an Agile
methodology. Stakeholders have been engaged throughout the process, from designing the
functionality, through procurement, development and ongoing improvements.
This report outlines the background that started the SUTS legislation, then covers the
controlled launch, budget, methodology, change management and the future of the system,
as well as the stakeholder engagement and Governance that ensured its success. Stakeholder
feedback is also included.
Background
Colorado has a unique tax landscape with 272 municipalities, out of which 97 are Home Rule
jurisdictions that can establish their own tax base, requiring businesses to file and remit tax
directly to the municipality. Out of the 97, Colorado has 71 that are self-collecting-tax
jurisdictions.
2
The Sales and Use Tax Simplification Task Force was originally created in 2017 to find ways to
make it easier for businesses to navigate this highly-complex system, and simplicity became
imperative after the 2018 Supreme Court’s ruling in South Dakota v. Wayfair that allowed
states to require that sellers collect and remit sales tax based on the establishment of an
“economic nexus,” doing away with the previous “physical presence” test.
In 2019, the Task Force advocated for legislation and the General Assembly passed SB19-006
(SB6) which required that the Department of Revenue (DOR) and the Governor's Office of
Information Technology (OIT) collaborate to deliver a Sales & Use Tax Software (SUTS) system
that could be a single web portal where businesses could both look up sales and use tax
information and file and remit to all jurisdictions at once.
Beginning in July, 2019, DOR and OIT designed the concept of a stakeholder Consortium with
multiple layers of constituents to participate at every level of development. The Consortium
included legislative representation, local jurisdictions, technical and tax experts and
members of the business community. The Consortium was empowered to drive real decisions
on the functionality, interface and development from the onset of this project.
The procurement was done using a newly-authorized “Invitation to Negotiate” (ITN) process
that allowed DOR and OIT to work with vendors closely to find the right match and cost
structure. Incorporating Agile methodologies enabled the direction of the project to evolve as
understanding grew and requirements developed, culminating in a final product that is truly
responsive and adaptive in meeting the needs of the stakeholders.
SUTS was designed collaboratively with the Consortium stakeholders with the expectation
that it will be readily adopted.
Controlled Launch
On May 6, 2020, DOR and OIT initiated a controlled launch of Colorado.Gov/Revenue/SUTS, a
new, one-stop portal that allows users to do two things: (1) look up the sales and use tax
rates, including
exemptions, for any
address in Colorado, and
(2) file and remit sales and
use tax to multiple
jurisdictions in an easy,
automated and seamless
fashion.
Rifle, Craig, Rideway, and
approximately 50 counties
and all state-administered
(statutory) cities
participated in the launch
that allowed the SUTS
3
Team to actively operate the system from end-to-end in a controlled environment with a
select number of taxpayers.
SUTS originally launched with three separate vendor agreements that Home Rules needed to
sign, which proved cumbersome and legally challenging. Again, with Consortium support and
guidance, the agreements were consolidated, streamlined and re-emerged as one
inter-governmental agreement (IGA) between DOR and the Jurisdiction. That improved
agreement significantly facilitated Home Rule jurisdictions signing up.
Budget
For Colorado fiscal year, July 1, 2019, to June 30, 2020, (“FY20”), SB19-006 required an
appropriation from the General Fund of $9.183 million for the remittance part of the
software, and $817,000 for the “GIS” part that would be the tax look-up functionality, for a
total of $10 million. An additional $8.75 million was designated for FY21. The total
appropriation for both years was $18,750,000 which was based on a Request for Information
(RFI) issued as required by HB18-1022.
SB19-006 FUNDING FY20 FY21 TOTAL FY22*
Budget Appropriation $10,000,000 $8,750,000 $18,750,000 $2,218,566
Vendor development $3,797,619 $716,266 $4,513,885 $0
Vendor Support $0 $1,915,275 $1,915,275 $1,819,200
State Tech/User Support Cost $228,662.72 $1,150,600 $1,379,263 $399,366
Total Budget Impact $4,026,282 $3,782,141 $7,808,423 $2,218,566
Balance $5,973,718 $4,967,859 $10,941,577 $0
General Fund Reversion (56%) $5,973,718 $4,600,000 $10,573,718
Contingency in FY21 (2%) $0 $367,859 $367,859
FY22* Request for FY22 support
As the chart above shows,SUTS total spending for FY20 is $4,026,282, which is almost $6
million under budget. For FY21, SUTS spending is estimated to be $3,782,141, leaving a
balance of almost $5 million. The original intention was to ask the General Assembly for a
rollover to use the unspent amount for years of support going forward, as DOR had negotiated
a discount with vendors for pre-paid support. Then, the pandemic hit and it was more critical
to give back all unspent funds to the General Fund to cover economic shortfalls throughout
the state. SUTS gave back $5,973,718 in FY20 and $4,600,000 in FY21, for a total of
$10,573,718 which is 56.39% of the entire appropriation, without loss of time or functionality.
As the department looks to the future, DOR requests $2,218,566 in FY22 to cover vendor
support, hosting, technical and user support and some minor infrastructure costs. This
includes only one “Product Owner” (an important Agile role) and four FTE for call center staff
as DOR is contractually obligated to provide Tier-1 (general) support. The original
appropriation for the system never allocated maintenance and support funding to address
ongoing operational needs past FY21. A properly maintained SUTS system is essential for
accurate and effective usability of the product for all taxpayers. Without this ongoing support
4
funding, SUTS would have to be shut down. The FY22 request is a fraction of the estimated 28
FTE plus hosting and support needed if the system had been created completely in-house
instead of SUTS implementing a SaaS approach.
In FY21, we will be auditing and assessing the amount of additional money brought into
Colorado from SUTS, especially from out-of-state retailers who must comply with the state’s
destination sourcing laws.
Project Management Methodology
The SUTS team used Agile methodology for planning and development. Instead of creating a
comprehensive blueprint at the outset of a project, when understanding is at its lowest,
planning happens continuously, through a process of on-going stakeholder engagement and
adaptation.
The software’s final design emerged through a collaborative effort between developers and
business users, requiring a shift in the traditional procurement approach relying heavily on
functional specifications written up front.
OIT and DOR employed a relatively new procurement method called an Invitation to
Negotiate (ITN), rather than the normally used Request for Proposal (RFP) process. SUTS was
the first major technology project in the state to embrace the ITN approach, allowing for
greater insight on core products in the marketplace and how the state could fit into that
solution rather than assuming needs and fitting a vendor into the solution. DOR was able to
take on the role as agency lead in negotiating price and functionality, with OIT in a supporting
role helping vendors meet state standards and bringing technical expertise.
MUNIRevs was the vendor contracted to develop and support the filing and payment
(remittance) portal, and TTR was contracted to develop the Geographic Information System
(GIS) and taxability matrix. FAST Enterprises took the role of integration with DOR's existing
Revenue Online system.
Change Management Plan
Change management is the engagement and adoption of SUTS into local governments and
businesses. The Change Management Plan (CMP) outlines the processes, systems,
organizational structure, and responsibilities for local governments and businesses to
transition to SUTS.
The CMP is for:
●Statutory Cities, Counties, and Special Districts that have state-administered tax
collection and need to know how this affects their traditional relationship and the
process.
●Home Rule Municipalities that want to know how it benefits their communities, yet
lets them retain the independence they cherish.
●Businesses that need to know how this works and how it makes their collection and
remittance easier.
5
●DOR and OIT where employees and infrastructure will be needed to support the
system.
The CMP details the onboarding, maintenance and support that jurisdictions and businesses
can receive from DOR, OIT and the vendors to facilitate the transition and process for using
the SUTS System. The support involves individual meetings with each Home Rule municipality
to demonstrate the use of the system and to review questions on the SUTS Agreement.
Tutorial video instructions for using the GIS and the remittance portal have been developed
for taxpayers and are linked on the DOR Sales Tax webpage.
DOR will continue to work with Home Rule jurisdictions until all 71 self-collecting-tax
municipalities have adopted the SUTS System.
Maintaining the SUTS System
From a Governance level, the Governance committee will continue to meet monthly to go
over financials and any high-level issues around scope, resources, contract management, etc.
The Consortium Executive Committee will also meet periodically to look at enhancements.
From a tax data perspective, as sales taxes change due to the passage of new laws, each
jurisdiction is responsible for updating their local tax information. A detailed user agreement
has been put in place for self-collecting jurisdictions, and users will be held harmless for
incorrect data as DOR has certified TTR as an official “source-of-truth” database of sales and
use tax information. DOR will make administrative changes for tax changes at the state level.
From a user point of view, DOR will maintain a “Tier-1” call center to handle simple user
questions and help them get on the system. The vendors will be supporting “Tier-2” level
issues around the software and technology.
From a cost position, the state has contractual payments due to vendors and the costs of call
centers and product management which are captured in decision items yearly. When
legislation changes the imposition of sales and use tax rates or exemptions, DOR fiscal notes
will request funding for changes needed in the SUTS system and the state tax administration
system (GenTax).
Stakeholder Engagement & Governance
From inception, SUTS was a collaborative effort. The Sales & Use Tax Task Force was made up
of representatives from government and business, as were the many associations that came
together to create the initial specification for what was needed.
The plan from the beginning was to not build it in a state silo, but rather engage the
stakeholders in every phase to build it together. The concept of a Consortium was formed.
The largest group in the Consortium was open to the public and invited all the stakeholders,
where hundreds had input and were kept involved along the way for feedback at key moments
6
of development, but a smaller group, a Consortium Executive Committee, was set up to meet
more frequently and guide the project at critical decision points.
Additional subsets included a selection committee to review and select the vendors that
would best meet their needs, and a technical committee with those having particularly deep
technical knowledge, who helped in the specification and scope of software creation.
Lastly, a Governance Committee meets monthly to review progress and next steps and
anything that affects scope, budget or resources.
Details of the Consortium, including members of the Executive Committee, can be found in
Appendix A below.
Feedback from representatives of the Consortium Executive Council
●"Since its inception in 2017, the Sales and Use Tax Simplification Task Force, in
collaboration with the Joint Technology Committee, has been working towards the day
when Colorado would have a centralized sales tax collection system between state and
local governments; that day is here and the SUTS system has surpassed our expectations.
CDOR/OIT created a stakeholder consortium of local jurisdictions and businesses to
successfully build technology to meet the needs of a 21st century state government." -
State Senator Jack Tate, General Assembly, Joint Technology Committee representative.
●“We appreciate the work that DOR has put into making this goal a reality. We appreciate
the work of lawmakers and opportunity to participate in the conversation and take an
active role in the selection process.” - Dave Davia, Vice President and CEO of the
Colorado Association of Mechanical and Plumbing Contractors (CAMPC), Chairman and
representative from Simplify Colorado Sales Tax Coalition.
7
●“I am truly amazed by the level of cooperation and focus on delivering a solution that not
only simplifies sales and use tax filings in Colorado but also meets the needs of
government and businesses. The SUTS team was truly impressive in the way they
mobilized resources quickly to deliver a sales and use tax filing system that provides
significant benefit to all users." - Ezequiel Vasquez, Revenue Manager, City of Arvada,
representative from Colorado Municipal League.
●“The Executive Council gave us a chance to see all sides of sales and use tax, the good
and the bad. The feedback and collaboration from all sides of sales and use tax gave us a
chance to create a system that works for all parties involved with sales and use tax.” -
Ray Baca, Sales and Use Tax Analyst, El Paso County, representative from Colorado
Counties, Inc.
●“The development of the Sales and Use Tax System has been a well-organized and
thought-out process. The opportunity for all stakeholders, including the businesses of
Colorado, to be deeply involved in this process has been extremely beneficial and has
allowed for a well-considered product set up for success. The Department has listened
and considered the thoughts and concerns of all involved in the process.” - Ashley
Granger, CPA, Manager, State and Local Tax, Rubin Brown, representative from Colorado
Chamber of Commerce.
APPENDIX A: THE CONSORTIUM
Stakeholders Consortium: General
stakeholder input was solicited for those who
would interface with the SUTS software to
ensure a human-centered design. They
assisted with the scope of work on the
remittance software and convened several
times to review the scope of the work on the
GIS software side. An Agile approach was used
to solicit input and gather information in the
form of user stories. Businesses and local
taxing jurisdictions were asked to provide
examples of their current operation for
collecting sales taxes and to describe
obstacles or barriers they would like to see
removed or beneficial features to add to the new system. Most common feedback from user
needs included:
●Search for tax rate and location code by address
●View map of jurisdictional boundaries
●Upload multiple addresses for batch searches
●Download data sets
●Provide specific reports; contact information, trending data, etc.
8
Consortium Executive Council: The Consortium Executive Council was created to provide
perspective from stakeholders who are currently operating within the boundaries of multiple
taxing jurisdictions. Their role is to deliberate on direction, prioritization, and strategic input
on issues that affect both taxing authorities and the business customer. The Council has
representatives from the General Assembly, Colorado counties, Home Rule jurisdictions,
special districts, business organizations, and included the following members, to whom we
owe a great deal of appreciation and gratitude:
●General Assembly: Senator Jack Tate, Joint Technology Committee
●Counties and Commissioners Acting Together: Ramona Farineau, CFO, Boulder County
●Colorado Chamber of Commerce: Ashley Granger, CPA Manager, RubinBrown
●Special District Association: Heather McKillop, CFO, Regional Transportation District
●Colorado Counties, Inc: Breanna Paderewski-Vice, Senior Budget Analyst, Douglas
County, and Ray Baca, Sales and Use Tax Analyst, El Paso County
●Colorado Municipal League: Heather Pezella, Revenue Services Manager, Town of
Breckenridge, and Ezequiel Vasquez, Revenue Manager, City of Arvada
●Simplify Colorado Sales Tax Coalition: Lee Nelson, Assistant Controller, American
Furniture Warehouse
APPENDIX B: SUTS VENDORS
MuniRevs: MUNIRevs provides the easiest way for
jurisdictions to collect, and businesses to remit, sales and
other taxes. Over 50,000 businesses utilize MUNIRevs to
remit taxes, manage licenses and ensure compliance with
jurisdiction requirements. Founded in 2011, the MUNIRevs
team provide expertise and nimble software solutions to jurisdictions for sales tax, licensing
and permitting. MUNIRevs has automated the delivery of over $1 billion in tax revenues to
jurisdictions throughout the United States. To learn more, visit www.munirevs.com.
TTR (The Tax Research Company) provides everything sales, use, and transaction
tax related. Access to tax laws, a best in class research system, the most
accurate tax rates and taxability rules available anywhere; with 10,000
companies and counting, TTR has become a "best practice" in the area of sales,
use, and transaction tax. TTR also provides software solutions for companies and
governments. TTR's revolutionary Artificial Intelligence Enabled Exemption
Certificate Management System (ECMS), Tax Automation software, and proprietary nationwide
GIS Tax Rate System allow businesses and states to Get Tax Right. To learn more, visit
www.ttrus.com.
Implementation Specialists. Software Pioneers. Adventure Seekers. FAST
Enterprises is committed to being a premier provider of software and
consulting services to government agencies. FAST is dedicated to
problem-solving, creating solutions, and maintaining strong partnerships
with government agencies. We help our clients serve the needs of their communities to the
best of their ability. To learn more, visit fastenterprises.com
9
1
Economic Nexus and the Obligation of Remote
Sellers to Collect and Remit Sales Tax
September 1,2020
ATTACHMENT 3
Agenda
•Wayfair Background
•Current Status
•Council Discussion
2
Wayfair Decision June 2018
The Supreme Court held that an out-of-state retailer does not
need a physical presence in a state before the state can
require the retailer to collect and remit sales tax. However, a
substantial nexus is needed.
The Supreme Court held that South Dakota’s tax law properly
identified when a retailer had a substantial nexus with the state for
tax purposes:
•Annual minimum sales of $100,000; or
•A m inimum of 200 separate sales transactions of
any amount
3
Colorado Department of Revenue
Implementation of Wayfair
4
Remote sellers above
the de minimis level
(same as South Dakota)
The State of Colorado
collects state sales tax
and local sales tax for
entities it collects for
Responsible for approx.
265 jurisdictions
150 statutory cities
All but two counties
24 home rule (state collected)
Colorado Department of Revenue
Implementation of Wayfair
5
State House Bill 19-1240 (July 2019)
•Establishes economic nexus for purposes of retail sales
made by retailers without physical presence
•Codifies destination sourcing
•Establishes an exception to destination sourcing
•As of October, requires marketplace facilitators to
collect and remit sales tax on behalf of marketplace
sellers
https://leg.colorado.gov/bills/hb19-1240
Marketplace Facilitator
•An individual or legal entity
that operates a marketplace
•May have physical nexus
Marketplace Seller
•Someone who sells goods
through a marketplace
facilitator
6
Colorado Municipal League (CML) October 2018
71 self-collected
municipalities
Largest population
centers
Consensus –risks to self-
collecting proceeding
independently:
•Lawsuit or
•Undue burden prohibited by
Wayfair
Agreement that CML and its
members should lead the
discussion and propose the
solution, along with Department
of Revenue, rather than let the
legislature decide
Self-Collecting & Wayfair
•Single state vs. numerous taxing jurisdictions
•Colorado not part of Streamlined Sales & Use Ta x Agreement (South Dakota is)
•If one jurisdiction proceeds alone, could bar other jurisdictions until court case is resolved
Risks
discussed
7
State’s single point of remittance softw are (SUTS System) & single GIS sys tem
•Remote sellers with economic nexus can file & pay via the SUTS System
•Available for any business not just those with economic nexus only
•Businesses with physical presence would still need to have a Fort Collins sales tax license
•$17.5k fee for software integration –can also do manually without a fee, staff time
•Additional filing option for businesses –paper, Fort Collin’s online system or the SUTS
System
Self-Collecting & Wayfair
Options for Fort Collins
8
May 2020 -Model Ordinance
•Has language around economic nexus and marketplace facilitators
•CML suggests adopting this language if cities move away from voluntary compliance and
into collecting from out-of-state, remote sellers that only have economic nexus
•CML recommends doing this for cities that are going to use the DOR single point of
remittance
•CML asks that cities use model ordinance language when it is available –the goal is
simplification under Wayfair to avoid any lawsuits
Self-Collecting & Wayfair
CML Current Status
9
Model Ordinance
Requires a code changes for language around economic nexus & marketplace facilitators
Self-Collecting & Wayfair
Options for Fort Collins
Economic Nexus
•Definition of engaged in business
•Who is taxed and who is
compelled to collect the tax
Marketplace Facilitator
•Definition of retailer
•Who collects the tax
10
Majority of home rule cities need to participate to keep the sales tax system as simple
as possible according to Wayfair –critical for larger home rules like Fort Collins to join
Self-Collecting & Wayfair
What are other cities doing?
Source: Department or Revenue, August 17, 2020
What are other cities doing?
Denver Plans to participate, SUTS first and model ordinance later
this fall
C. Springs SUTS agreement and model ordinance already signed
Boulder Plans to participate, SUTS first and model ordinance later
this fall/early 2021
Aurora Marketplace Facilitator adopted, SUTS & Economic Nexus
later this fall
Golden SUTS agreement signed, model ordinance later this
summer
Thornton Plans to participate, SUTS first and model ordinance later
Centennial Plans to participate, no use tax, may have issues with
economic nexus
11
Local sales tax collection -why is Fort Collins not state-collected?
•Control of sales tax base
•State of Colorado has 87 sales & use tax exemptions
•Reduction of collections over $2 billion
•More targeted collection & enforcement
•Local program can more thoroughly educate businesses and follow up with auditing
where appropriate
SUTS System and model ordinance compatible w ith maintaining home rule self-
collecting status
The Case for Self-Collected
Home Rule Cities
To p Internet Retailers
Licensed in Fort Collins
12
Nationally e-commerce represents 11.8%* of total retail sales
Retailer**Ecommerce Share Licensed
Am azon 49.1%Ye s
eBay 6.6%No
Ap ple 3.9%Ye s
Walmart 3.7%Ye s
The Home Depot 1.5%Ye s
Best Buy 1.3%Ye s
QVC Group 1.2%No
Macy’s 1.2%Ye s
Costco 1.2%No
Wayfair 1.1%No
*U.S. Census Quarterly Retail E-Commerce Sales 1st Quarter 2020
**Top 10 US companies based on % of e-commerce sales, eMarketer, July 2018
Other licensed ecommerce
retailers:
•Google
•Zappos.com Inc
•Fanatics Inc
•Overstock.com
•Chewy Inc
•Nike
•1-800-Flowers.com Inc
•Chegg Inc
•Bonobos Inc
•IKEA
•Audible Inc
•Spotify
•Netflix
•Intuit
13Source: McKinsey Quarterly “The Quickening” (2020)
COVID-19 & e-commerce
14
Estimated e-commerce retail sales tax
•State estimates $72 million in 2020 from economic nexus and marketplace facilitators*
•Equivalent to 2.1% of collections
•2.1% is $2.5M Fort Collins
•Some retailers already remitting voluntarily in Fort Collins
Marketplace facilitators
•More than half of items sold on Amazon through third-party marketplace**
•Some turned off collection of local taxes on behalf of sellers, leaving them no way to collect tax
Sales Tax Department
•Estimate of 1 FTE or partial FTE with license volume and workload
•Evaluate need for software integration or new software system
*Colorado Legislative Council Staff –Economic & Revenue Forecast December 2019, p.28
**Amazon 2017 Annual Report, Letter to Shareholders
Dollars at Stake
Council Finance Committee
15
On June 15th, Council Finance Committee
supported Colorado Municipal League Model
Ordinance for Marketplace Facilitators and
Economic Nexus come forward for
consideration of adoption
-1-
ORDINANCE NO. 111, 2020
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 25 OF THE CODE OF THE CITY OF FORT COLLINS
REGARDING ECONOMIC NEXUS AND THE OBLIGATION OF REMOTE SELLERS
TO COLLECT AND REMIT SALES TAX
WHEREAS, Fort Collins is a home rule municipality, organized and existing under
Article XX, Section 6 of the Colorado Constitution; and
WHEREAS, pursuant to Article XX, Section 6 of the Colorado Constitution, the right to
enact, administer and enforce sales tax is clearly within the constitutional grant of power to the
City and is necessary to raise revenue with which to conduct the affairs and render the services
performed by the City; and
WHEREAS, pursuant to such authority, the City Council has adopted and enacted Article
III of Chapter 25 of the City Code imposing a sales tax (the “Sales Tax Code”), under which City
sales tax is levied on all sales and purchases of tangible personal property or taxable services at
retail unless prohibited, as applicable to the provision of this Ordinance, under the Constitution
or laws of the United States; and
WHEREAS, the United States Supreme Court in South Dakota v. Wayfair, 138 S.Ct.
2080 (2018), overturned prior precedent and held that a State is not prohibited by the Commerce
Clause from requiring a retailer to collect sales tax based solely on the fact that such retailer does
not have a physical presence in the State (“Remote Sales”); and
WHEREAS, based upon the Wayfair decision, under the Constitution and laws of the
United States the retailer’s obligation to collect and remit tax due and owing on Remote Sales is
no longer based on the retailer’s physical presence in the jurisdiction , and the City’s Sales Tax
Code needs to be amended to clearly reflect such obligation consistent with said decision; and
WHEREAS, the delivery of tangible personal property, products, or services into the City
relies on and burdens local transportation systems, emergency and police services, waste
disposal, utilities and other infrastructure and services; and
WHEREAS, the failure to tax Remote Sales creates incentives for businesses to avoid a
physical presence in the State and its respective communities, resulting in fewer jobs and
increasing the share of taxes to those consumers who buy from competitors with a physical
presence in the State and its municipalities; and
WHEREAS, it is appropriate for Colorado municipalities to adopt uniform definitions
within their sales tax codes to encompass marketplace facilitators, marketplace sellers, and
multichannel sellers that do not have a physical presence in the City, but that still have a taxable
connection with the City; and
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WHEREAS, the goal of adopting this ordinance is to join in on the simplification efforts
of all the self-collecting home rule municipalities in Colorado as facilitated by the Colorado
Municipal League; and
WHEREAS, this ordinance provides a safe harbor to those who transact limited sales
within the City; and
WHEREAS, absent such amendment, the continued failure of retailers to voluntarily
apply and remit sales tax owed on remote sales exposes the City to unremitted taxes and permits
an inequitable exception that prevents market participants from competing on an even playing
field; and
WHEREAS, the Council adopts this Ordinance with the intent to address tax
administration, and, in connection therewith, establish economic nexus for retailers or
vendors without physical presence in the State and require each such retailer or vendor to collect
and remit sales tax for all sales made within the marketplace.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 25-71 of the Code of the City of Fort Collins is hereby
amended to add certain definitions and amend certain existing definitions, to read as follows:
. . .
Economic nexus shall mean the connection between the City and any retailer not having a
physical nexus in the State of Colorado, which connection is established when the retailer meets
any one of the following criteria:
(1) In the previous calendar year, the retailer has made retail sales of goods or
services delivered into the State of Colorado exceeding the amount specified in C.R.S. §
39-26-102(3)(c), as amended; or
(2) In the current calendar year, ninety (90) days has passed following the month in
which the retailer has made retail sales into the State of Colorado exceeding the amount
specified in C.R.S. § 39-26-102(3)(c), as amended.
This definition does not apply to any person who is doing business in this state but otherwise
applies to any other person.
Engaged in business in the City shall mean performing or providing services or selling, leasing,
renting, delivering or installing tangible personal property, products, or services for storage, use
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or consumption within the City. Engaged in business in the City includes, but is not limited to,
any one of the following activities by a person or retailer:
(1) Directly, indirectly, or by a subsidiary maintainings a building, store, office,
salesroom, warehouse, or other place of business within the taxing jurisdiction;
(2) Sendings one (1) or more employees, agents or commissioned sales persons into
the taxing jurisdiction to solicit business or to install, assemble, repair, service, or assist
in the use of its products, or for demonstration or other reasons;
(3) Maintainings one (1) or more employees, agents or commissioned sales persons
on duty at a location within the taxing jurisdiction;
(4) Ownings, leasinges, rentings or otherwise exercisinges control over real or
personal property within the taxing jurisdiction; or
(5) Makes more than one (1) delivery into the taxing jurisdiction within a twelve-
month period by any means other than a common carrier. As a retailer, who has a
physical presence in the State of Colorado, making more than one (1) retail sale of
tangible personal property, products or services within a twelve (12) month period, where
the property or product is delivered by any means, including common carrier, to a
location within the City, or the service rendered occurs within the City; or
(6) Making retail sales sufficient to meet the definitional requirements of economic
nexus as defined in this Article.
. . .
Marketplace shall mean a physical or electronic forum, including, but not limited to, a store, a
booth, an internet website, a catalog, or a dedicated sales software application, where tangible
personal property, taxable products, or taxable services are offered for sale.
Marketplace facilitator shall mean a person who:
(1) Contracts with a marketplace seller or multichannel seller to facilitate for
consideration, regardless of whether or not the consideration is deducted as fees from the
transaction, the sale of the marketplace seller’s tangible personal property, products, or
services through the person’s marketplace or a marketplace operated by the person;
(2) Engages directly or indirectly, through one or more affiliated persons, in
transmitting or otherwise communicating the offer or acceptance between a purchaser or
consumer and the marketplace seller or multichannel seller; and
(3) Either directly or indirectly, through agreements or arrangements with third
parties, collects or accepts and processes payment from the purchaser or consumer on
behalf of the seller.
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Marketplace facilitator does not include a person who exclusively provides internet advertising
services or lists products for sale, and that does not otherwise meet this definition.
Marketplace seller shall mean a person, regardless of whether or not the person is engaged in
business in the City, who has an agreement with a marketplace facilitator and offers for sale
tangible personal property, products, or services through a marketplace owned, operated, or
controlled by a marketplace facilitator.
. . .
Multichannel seller shall mean a retailer that offers for sale tangible personal property,
commodities, or services through a marketplace owned, operated, or controlled by a marketplace
facilitator, and through other means.
Retailer shall mean any person selling, leasing, renting, or granting a license to use tangible
personal property or services at retail. Retailer shall include, but is not limited to, any:
(1) Auctioneer;
(2) Salesperson, representative, peddler or canvasser, who makes sales as a direct or
indirect agent of or obtains such property or services sold from a dealer, distributor,
supervisor or employer; and
(3) Charitable organization or governmental entity which makes sales of tangible
personal property to the public, notwithstanding the fact that the merchandise sold may
have been acquired by gift or donation or that the proceeds are to be used for charitable
or governmental purposes.; and
(4) Marketplace facilitator, marketplace seller, or multichannel seller.
. . .
Section 3. That Section 25-73 of the Code of the City of Fort Collins is hereby
amended to read as follows:
. . .
(b) Taxable transactions and items. The sales tax shall apply, without limitation, as follows:
. . .
(11) Upon all sales of preprinted newspaper supplements; and
(12) Upon the purchase price paid for food, but only at the tax rate of two and twenty-
five hundredths (2.25) percent of the purchase price.; and
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(13) Upon marketplace sales, pursuant to § 25-131.
Section 4. That a new Section 25-131 of the Code of the City of Fort Collins is
hereby added to read as follows:
Sec. 25-131. Marketplace sales.
(a) Obligation to collect and remit tax.
(1) A marketplace facilitator engaged in business in the City is required to collect and
remit sales tax on all taxable sales made by the marketplace facilitator, or facilitated by it
for marketplace sellers or multichannel sellers, to customers in the City, whether or not
the marketplace seller for whom sales are facilitated would have been required to collect
sales tax had the sale not been facilitated by the marketplace facilitator.
(2) A marketplace facilitator shall assume all the duties, responsibilities, and
liabilities of a retailer as defined in this Article. Marketplace facilitators shall be liable for
the taxes collected from marketplace sellers or multichannel sellers. The City may
recover any unpaid taxes, penalties, and interest from the marketplace facilitator that is
responsible for collecting on behalf of marketplace sellers or multichannel sellers.
(3) The liabilities, obligations, and rights set forth under this Article are in addition to
any duties and responsibilities of the marketplace facilitator under this Article if it also
offers for sale tangible personal property, products, or services through other means.
(4) A marketplace seller shall be subject to all the same licensing, collection,
remittance, filing and recordkeeping requirements as any other retailer under this Article
for retail sales made on its own behalf and not facilitated by or through a licensed
marketplace facilitator in a marketplace.
(b) Marketplace seller relief. A marketplace seller, with respect to sales of tangible personal
property, products, or services made in or through a marketplace facilitator’s marketplace, does
not have the liabilities, obligations, or rights of a retailer under this Article if the marketplace
seller can show that such sale was facilitated by a marketplace facilitator:
(1) With whom the marketplace seller has a contract that explicitly provides that the
marketplace facilitator will collect and remit sales tax on all sales subject to tax under this
Article; or
(2) 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 made in or throug h the
marketplace facilitator’s marketplace.
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(c) Auditing. With respect to any marketplace sale, the City shall solely audit the
marketplace facilitator for sales made by marketplace sellers or multichannel sellers but
facilitated by the marketplace. The City will not audit or otherwise assess tax against
marketplace sellers or multichannel sellers for sales facilitated by a marketplace facilitator.
(d) No retroactive application. The obligations to collect and remit the sales tax required by
this Section apply to taxable transactions occurring on or after the effective date of this Section.
Section 5. If any provision of this Ordinance, or the application of such provision to
any person or circumstance, is held to be unconstitutional or invalid for any reason, then the
remainder of this Ordinance, and the application of the such provisions to any person or
circumstance, shall not be affected thereby. The City Council hereby declares that it would have
passed this ordinance and each part or parts thereof irrespective of the fact that any one part or
parts be declared unconstitutional or invalid.
Section 6. The requirements set forth in this Ordinance shall become effective [on
the first day of the month that is at least thirty (30) days after its effective date] November 1,
2020.
Introduced, considered favorably on first reading, and ordered published this 1st day of
September, A.D. 2020, and to be presented for final passage on the 15th day of September, A.D.
2020.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on this 15th day of September, A.D. 2020.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk