HomeMy WebLinkAbout111 - 09/15/2020 - AMENDING THE CITY CODE REGARDING ECONOMIC NEXUS AND THE OBLIGATION OF REMOTE SELLERS TO COLLECT AND 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
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
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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
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 maintaining a building, store, office, salesroom,
warehouse, or other place of business within the taxing jurisdiction;
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(2) Sending 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) Maintaining one (1) or more employees, agents or commissioned sales persons on duty at
a location within the taxing jurisdiction;
(4) Owning, leasing, renting or otherwise exercising control over real or personal property
within the taxing jurisdiction;
(5) 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.
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.
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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;
(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;
(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
(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
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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 through the marketplace facilitator's
marketplace.
(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.
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Section 6. The requirements set forth in this Ordinance shall become effective on
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.
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Passed and adopted on final reading on this 15th day of September, A.D. 2020.
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