Colo. Code Regs. 43-4-218

Current through Register Vol. 47, No. 19, October 10, 2024

Rule 43-4-218 - Retail Delivery Fees

(1)General Rules. The following general rules apply with respect to retail delivery fees:

(a) A retailer making a retail delivery on or after July 1, 2022, shall add to the price of the retail delivery, collect from the purchaser, and pay to the Department the retail delivery fees in the manner set forth in this rule.

(b) A retailer who is not "doing business in this state" as defined in section 39-26-102(3), C.R.S., and 1 CCR 201-4, Rule 39-26-102(3) is not obligated to collect and remit the retail delivery fees. A retailer's obligation to begin the collection and remittance of the retail delivery fees begins on the same date as the retailer's obligation to begin the collection and remittance of the state sales tax.

(b) Except as otherwise required by this rule, any statute or rule applicable to the collection, administration, and enforcement of sales tax under article 26 of title 39, C.R.S., including applicable statutes and rules under article 21 of title 39, C.R.S., applies to the collection, administration, and enforcement of retail delivery fees.

(2)Definitions. As used in this rule, unless the context otherwise requires:

(a) The statutory definitions in article 26 of title 39, C.R.S., shall apply to terms used in this rule.

(b) "Retail delivery fees" means the sum of the retail delivery fee imposed by section 43-4-218(3), C.R.S, and all enterprise retail delivery fees described in section 43-4-218(2)(a), C.R.S.

(3)Imposition and Sourcing.

(a) Each retail sale is a single retail delivery regardless of the number of shipments necessary to deliver the items of tangible personal property purchased. The retail delivery fee will not be applied more than once per retail sale regardless of the number or timing of the payment made by the purchaser, the number of shipments in which the purchased items are delivered, or the number of locations to which the shipments are delivered.

(i) The retailer must determine and document how each shipment is attributed to a retail sale consistent with this paragraph (3). The Department will accept a retailer's reasonable determination that multiple shipments were part of a single retail sale provided that:

(A) the determination is consistent with this paragraph (3);

(B) the retailer applies the determination consistently across all retail sales;

(C) the retailer adequately documents that multiple shipments were part of a single retail sale; and

(D) the Department has not directed the retailer in writing to apply a different attribution method.

(ii)Subscriptions, Recurring Purchase Programs, Leases, and Installment Sales.

(A) A retail sale of tangible personal property for which the purchaser places a single order and makes a single payment that results in recurring deliveries by motor vehicle for a specified period of time is one retail sale and, therefore, one retail delivery. As such, the retailer shall collect the retail delivery fees on the single order and shall not collect the retail delivery fees on subsequent deliveries that are part of that order.

(B) Retail sales of tangible personal property that are the result of the purchaser placing automatic, recurring orders with separate payments that include the option to cancel at any time before the items are delivered by motor vehicle are separate retail sales for each recurring order and, therefore, separate retail deliveries. As such, the retailer shall collect the retail delivery fees on each recurring retail delivery.

(C) A retail sale of tangible personal property for which the purchaser places a single order with periodic credit, installment, or lease payments over a specified period of time to receive one delivery by motor vehicle is one retail sale and, therefore, one retail delivery. As such, the retailer shall collect the retail delivery fees only once on the first credit, installment, or lease payment.

(I)Short-Term Leases. A lessor that makes a lease of three years or less of tangible personal property shall apply the following rules:

(1) If a lessor obtains permission from the Department pursuant to section 39-26-713(1)(a), C.R.S., to acquire tangible personal property exempt from sales tax and collect sales tax on each lease payment received for the property, the short-term lease is considered a retail sale and the lessor shall collect the retail delivery fees from the lessee as described in paragraph (3)(a)(ii)(C) of this rule if the leased tangible personal property is a retail delivery.

(2) If a lessor has not obtained permission from the Department pursuant to section 39-26-713(1)(a), C.R.S., to acquire tangible personal property exempt from sales tax and collect sales tax on the lease payments, the short-term lease is not subject to the retail delivery fees regardless of whether the leased item is delivered to the lessee by motor vehicle. If the tangible personal property was delivered by a motor vehicle to the lessor at the time of acquisition, the retailer shall collect the retail delivery fees from the lessor.

(iii) In the case of a retail delivery that includes an item that is later exchanged or replaced, a subsequent delivery made by the retailer to the purchaser to exchange or replace the original item purchased or any part thereof free of charge whether under warranty or not is not subject to the retail delivery fee because there was no additional retail sale.

(b)Delivery by a Motor Vehicle. The retail delivery fees are imposed on each retail sale of tangible personal property delivered by a motor vehicle to the purchaser at a location in this state other than the retailer's business location.

(i) To determine whether a delivery is "by a motor vehicle," the retailer shall consider all modes of transportation used in this state to effectuate the delivery of the sale from the time immediately after the acceptance or approval of the order until the time the items are delivered to the purchaser's specified location in this state other than the retailer's business location. If any part of the post-order delivery that occurs in this state is made by a motor vehicle, the delivery is "by a motor vehicle" and the retail delivery fees apply.

(ii) The retail delivery fees apply whether the retailer delivers the items itself, uses a third party, including the United States Postal Service, or tenders the items to a shipping company hired by the purchaser.

(iii) A retail sale of taxable tangible personal property that a purchaser picks up at a retailer's business location is not subject to the retail delivery fees.

(c)Determining the Delivery Location. To determine whether a delivery is made to a location in this state, section 39-26-104(3), C.R.S., 1 CCR 201-4, Rule 39-26-104 -2, and the following rules apply:

(i) A retail delivery to a drop-off and pick-up locker, Post Office Box, or similar facility located in the state, other than the retailer's business location, is a delivery made to a location in this state and is subject to the retail delivery fees.

(ii) A retail delivery to a location in this state at the purchaser's direction is subject to the retail delivery fees regardless of the purchaser's location at the time of either the purchase or the delivery, except as provided in paragraph (3)(b)(iii) of this rule.

(iii) A delivery made to a location outside of this state is not subject to the retail delivery fees regardless of the purchaser's location at the time of either the purchase or the delivery.

(4)Deliveries of Tangible Personal Property Not Subject to, or Exempt from, the Retail Delivery Fees.

(a) A retail sale of tangible personal property by a retailer for delivery by a motor vehicle is not subject to the retail delivery fees if:

(i) No item of tangible personal property included in the retail sale is subject to state sales tax under article 26 of title 39, C.R.S.; or

(ii) The purchaser is exempt from paying state sales tax on the purchased item under article 26 of title 39, C.R.S.;

(b)Wholesale Sales. A wholesale sale as defined in sections 39-26-102(19) or (20), C.R.S., is not subject to the retail delivery fees because a wholesale sale is not a retail sale. A sale by a wholesaler to a user or consumer is not for resale and is a retail sale subject to the retail delivery fees if the tangible personal property is subject to state sales tax under article 26 of title 39, C.R.S., and delivered by motor vehicle to a location in this state.

(i) If a delivery by motor vehicle to a location in this state includes items for resale (wholesale sales) and tangible personal property subject to state sales tax under article 26 of title 39, C.R.S., the seller shall collect the retail delivery fees on the transaction because the delivery includes at least one item of tangible personal property subject to state sales tax under article 26 of title 39, C.R.S.

(ii)Drop Shipments. In the case of a retail delivery made to the purchaser by a wholesaler on the retailer's behalf, either directly or by contract with a third party, the retailer is nonetheless required to collect the retail delivery fees from the purchaser.

(A)Example. A retailer makes a retail sale of taxable tangible personal property to a purchaser but does not have the inventory to fulfill the order. The retailer requests that their wholesaler ship the items purchased directly to the purchaser on the retailer's behalf. The wholesaler ships the items to the purchaser through a third-party delivery service. The retailer must collect the retail delivery fees from the purchaser on this transaction.

(iii) A person who properly purchases items as a wholesale sale and later removes one of those items from inventory for the person's own use is not separately obligated to remit the retail delivery fees to the Department when the item is removed from inventory.

(c)Complimentary Tangible Personal Property. A retailer that provides and delivers by motor vehicle tangible personal property to a customer completely free of charge shall not collect the retail delivery fees on such transaction because there is no retail sale.

(d)Discounts. If tangible personal property is transferred to a customer without consideration of any kind, the retail delivery fees shall not apply because a transfer made without consideration does not constitute a sale. For example, if a retailer allows discounts that reduce the property's purchase price to $0, and the retailer receives no consideration from the customer in exchange for the property, then the transfer of property does not constitute a sale and the retail delivery fees do not apply. However, if the retailer receives any form of consideration, including, but not limited to, manufacturer's coupons as described in 1 CCR 201-5, Special Rule 11, the transaction is considered a sale and the retail delivery fees apply.

(e)Burden of Proof. The burden of proving that a retailer is exempt from collecting the retail delivery fees on any retail delivery and paying the retail delivery fees to the Department, or from making such returns, is on the retailer. The burden of proving that a retailer is exempt from collecting the retail delivery fees on any delivery made by a transportation method other than a motor vehicle is also on the retailer.

(i) A retailer must exercise due diligence with respect to any retail delivery for which the purchaser claims an exemption. A retailer shall comply with the requirements of 1 CCR 201-4, Rule 39-26-105 -3 to be presumed to have exercised due diligence.

(ii) A retailer that does not comply with the requirements of 1 CCR 201-4, Rule 39-26-105 -3 will be held liable and responsible for the payment of any retail delivery fees that the retailer did not, but should have collected, or for which the retailer did not collect sufficient information and documentation from the purchaser to prove to the Department's satisfaction that the retail delivery was exempt from the retail delivery fees.

(5)Contractors and Repair Services.

(a)Time and Materials Contractor. A contractor, defined as such in 1 CCR 201-5, Special Rule 10, who bills their customers separately for labor and materials is considered a time and materials contractor. Generally, these contractors purchase tangible personal property at wholesale and resell the items to their customers in the completion of a job.

(i) If the job's primary purpose is a service call to repair property or diagnose a problem, the retail delivery fees will not apply even if the transaction includes the retail sale of taxable tangible personal property.

(A)Example. A plumber receives a call from a customer to come and fix a leaking sink. The plumber bills on a time-and-materials basis. In the process of diagnosing the problem, the plumber determines a new part is needed to stop the leak. Regardless of whether the plumber has the part with them, needs to pick up the part from the shop, or purchases the part from a store and brings it back to the customer's location, the retail delivery fees will not apply because the transaction's primary purpose was to repair a leaking sink.

(ii) If the job's primary purpose is to sell and install taxable tangible personal property that requires delivery by a motor vehicle to the customer's location in Colorado, the retail delivery fees will apply.

(A)Example. A plumber receives a call from a customer to purchase and install a new water heater, which will be delivered to the customer's location in Colorado by motor vehicle. The retail delivery fees will apply because the transaction's primary purpose is to sell an item of tangible personal property that requires delivery by motor vehicle to the customer's location in Colorado.

(b)Lump-sum Contractor. A contractor, defined as such in 1 CCR 201-5, Special Rule 10, who bills their customers on a lump-sum basis is considered a lump-sum contractor. Generally, these contractors purchase tangible personal property at retail and are considered the user and consumer of the tangible personal property used to complete a job.

(i) A lump-sum contractor will not collect the retail delivery fees from their customers because a lump-sum contractor is not making retail sales to their customers.

(ii) When a lump-sum contractor purchases taxable tangible personal property that will be delivered by motor vehicle to the contractor, either at the contractor's location or the jobsite, the retailer making the sale to the contractor must charge the retail delivery fees to the contractor.

(iii) When a lump-sum contractor purchases taxable tangible personal property at a retail business and brings the taxable tangible personal property with them to the jobsite, no retail delivery fees are due because the retail sale occurred at the retail business and no delivery by motor vehicle occurred to get the item to the contractor.

(c)Suppliers to Contractors.

(i)Time and Materials Contractors. A retailer or supplier that makes a sale of tangible personal property to a licensed contractor that presents sufficient documentation to make an exempt sale for delivery by a motor vehicle to a location in Colorado is presumed to have made a wholesale sale to the contractor because a licensed contractor generally resells the tangible personal property they purchase at wholesale to their customers and collects sales tax on the transactions. As such, the retailer or supplier shall not collect the retail delivery fees from the licensed contractor.

(ii)Lump-sum Contactors. A retailer or supplier that makes a retail sale of taxable tangible personal property to an unlicensed contractor for delivery by a motor vehicle to a location in Colorado is presumed to have made a retail delivery because an unlicensed contractor is generally the user and consumer of the items they purchase. As such, the retailer or supplier shall collect the retail delivery fees from the unlicensed contractor.

(6)Deliveries of Marijuana.

(a)Retail Marijuana. Except as provided in paragraph (6)(a)(ii) of this rule, a retail marijuana delivery is not subject to the retail delivery fees because, pursuant to section 39-26-729, C.R.S., retail marijuana is exempt from state sales tax under article 26 of title 39, C.R.S. For purposes of this paragraph (6), retail marijuana has the same meaning as set forth in section 39-28.8-101(7), C.R.S., and includes retail marijuana products as defined in section 39-28.8-101(9), C.R.S.

(i) A retail marijuana delivery that is subject to the sales tax imposed by a special district or other limited purpose governmental entity is nonetheless exempt, pursuant to section 39-26-729, C.R.S., from state sales tax under article 26 of title 39 and is therefore exempt from the retail delivery fees.

(ii) When tangible personal property subject to state sales tax under article 26 of title 39, C.R.S., is included in the sale and delivery of retail marijuana, the retail sale is subject to the retail delivery fees unless the purchaser is exempt because at least one item of tangible personal property purchased is subject to state sales tax under article 26 of title 39, C.R.S.

(b)Medical Marijuana.

(i) Except as provided in paragraph (6)(b)(ii) of this rule, a medical marijuana delivery is subject to the retail delivery fees unless the purchaser is exempt because medical marijuana is subject to state sales tax under article 26 of title 39, C.R.S.

(ii) A medical marijuana delivery that is exempt from state sales tax under section 39-26-726, C.R.S., is not subject to the retail delivery fees unless the delivery includes other items of tangible personal property that are subject to state sales tax under article 26 of title 39, C.R.S., and the purchaser is not an exempt entity.

(7)Registration. A retailer who is liable and responsible for the collection and remittance of the retail delivery fees shall register with the Department in the manner the Department prescribes. The registration will create a retail delivery fee account. Once a retailer is registered to collect the retail delivery fees, the retailer does not need to renew the registration.

(a) A retailer who fails to register as required in paragraph (7) of this rule is nonetheless liable and responsible for the full amount of the retail delivery fees due, plus any applicable penalties and interest.

(b) A retailer that is no longer liable and responsible for the collection and remittance of the retail delivery fees shall promptly close their retail delivery fee account as instructed by the Department. The retailer shall file returns in accordance with paragraph (9) of this rule through the closure date.

(8)Collection of the Retail Delivery Fees. A retailer who makes a retail delivery shall add the retail delivery fees in effect at the time the sale takes place to the price or charge for the retail delivery, and shall collect the retail delivery fees from the purchaser.

(a)Displaying Retail Delivery Fees on an Invoice. The retail delivery fees must be shown on any final invoice, receipt, or other documentsetting forth the purchase price as a separate and distinct item from the price of the items purchased and any other taxes or fees imposed on the retail delivery. The final invoice, receipt, or other document setting forth the purchase price must show the sum of the retail delivery fees in effect at the time the sale takes place as one amount on the invoice, receipt, or document labeled "retail delivery fees."

(i) The retail delivery fees cannot be included in the tax line shown on any final invoice, receipt, or other document setting forth the purchase price.

(ii) The retail delivery fees cannot be included in a line with other fees or charges on the final invoice, receipt, or other document setting forth the purchaser price.

(iii) In the case of an online retailer that does not provide the purchaser with a final invoice, receipt, or other document setting forth the purchase price, the retailer shall show the retail delivery fees as a line item on the website at checkout. The presentation of the retail delivery fees at checkout must meet the same requirements as set forth in section 43-4-218(6)(b), C.R.S.

(A) If it is impracticable for a retailer that does not provide the purchaser with a final invoice, receipt, or other document setting forth the purchase price to display the retail delivery fees in the manner described in (8)(a)(iii) of this rule, the retailer shall prominently display on the website at checkout that the retailer collects the retail delivery fees from the purchaser.

(B) If it is impracticable for a retailer that does not provide the purchaser with a final invoice, receipt, or other document setting forth the purchase price to display the retail delivery fees in the manner described in (8)(a)(iii) or (8)(a)(iii)(A) of this rule, the retailer shall notify the purchaser that the retailer collected the retail delivery fees from the purchaser in the email sent to the purchaser confirming the order has been placed or on the website of the retailer.

(iv) In the case of a retailer operating from a fixed or mobile store that does not provide the purchaser with the final invoice, receipt, or other document setting forth the purchase price, the retailer shall show on a conspicuous sign visible to the purchaser at checkout that the purchaser will pay the retail delivery fees on any retail delivery.

(b) A retailer who makes a retail delivery and does not know at the time of acceptance or approval of an order what modes of transportation will be used to make the delivery shall collect the retail delivery fees. If no part of the delivery is ultimately made by a motor vehicle, as described in paragraph (3)(b) of this rule, the retailer or purchaser may file a claim for refund pursuant to paragraph (10) of this rule if the fees have been remitted to the Department. A retailer that properly refunds the retail delivery fees in full may claim a credit on the return for the period in which the retail delivery fees were refunded pursuant to paragraph (10).

(c)Failure to Collect. A retailer who makes a retail delivery and who fails to collect the required amount of the retail delivery fees is nonetheless liable for the full amount of the retail delivery fees due. A purchaser is not liable to the Department for the retail delivery fees if the retailer does not collect the fees.

(d)Retail Sales Made Through a Marketplace Facilitator's Marketplace. In the case of a retail delivery facilitated by a marketplace facilitator through a marketplace facilitator's marketplace:

(i) The marketplace facilitator has all of the liabilities, obligations, and rights of a retailer under article 26 of title 39, C.R.S., and therefore shall collect and remit the retail delivery fees on all direct sales and all facilitated sales, as such terms are defined in 1 CCR 201-5, Special Rule 44.

(ii) The marketplace seller does not, with respect to retail delivery fees, have the liabilities, obligations, or rights of a retailer under article 26 of title 39, C.R.S., if the marketplace seller can show that the sale was facilitated by a marketplace facilitator:

(A) with whom the marketplace seller has a contract that explicitly provides that the marketplace facilitator will collect and remit Colorado state and state-administered local sales taxes on all sales subject to tax under article 26 of title 39, C.R.S.; or

(B) from whom the marketplace seller obtained a certification from the marketplace facilitator that the marketplace facilitator is registered to collect Colorado sales tax and will collect Colorado state and state-administered local sales taxes on all sales subject to tax under article 26 of title 39, C.R.S., made in or through the marketplace.

(iii) The Department will presume that a contract or certification that complies with the requirements is paragraph (4)(a)(iv) of 1 CCR 201-5, Special Rule 44 includes the collection of retail delivery fees in compliance with this paragraph (8)(d)(ii) absent contrary evidence.

(e)Direct Payment Permit Holders. A qualified purchaser that holds a valid direct payment permit pursuant to section 39-26-103.5, C.R.S., and the rules thereunder, shall remit directly to the Department and not to the retailer the retail delivery fees applicable to any retail delivery purchased by the qualified purchaser. A retailer who makes retail deliveries to a qualified purchaser shall not collect the retail delivery fees from the qualified purchaser. A qualified purchaser that holds a valid direct pay permit is subject to the requirements of this rule.

(9)Filing and Remittance of the Retail Delivery Fees. A retailer making retail deliveries shall file a return as described in paragraphs (9)(a) and (9)(b) of this rule and remit an amount described in paragraph (9)(c) of this rule for each reporting period.

(a)Filing Schedules and Due Dates. A retailer's filing schedule and the corresponding due date for retail delivery fees returns and remittances are the same as the retailer's state sales tax filing schedule and due dates under 1 CCR 201-4, Rule 39-26-109.

(i) Unless otherwise authorized, a return must be filed, and any retail delivery fees due must be remitted, on or before the twentieth day of the month following the end of a reporting period.

(ii) If the due date of the return and payment is a Saturday, Sunday, or legal holiday, the due date is the next business day.

(iii) A retailer cannot alter their filing schedule to differ from the retailer's state sales tax filing schedule and due dates under 1 CCR 201-4, Rule 39-26-109.

(b)Filing Requirements. Returns, and any required supplemental forms, must be completed in full, in the form and manner prescribed by the Department, and filed with the Department on or before the due date. The Department shall determine what information the return must contain, how the returns must be made, and the type of forms that must be used.

(i) A retailer that makes no retail deliveries during the preceding reporting period, shall nonetheless file a return on or before the due date reporting zero retail deliveries.

(ii) A retailer that fails to submit a complete and accurate return in the form and manner prescribed by the Department, including any zero return filings, on or before the due date is subject to penalties and interest pursuant to paragraph (11) of this rule.

(c)Remittance Requirements. A retailer is liable and responsible to remit to the Department on or before the due date an amount equal to the product of all retail delivery fees in effect for the reporting period and the number of retail deliveries the retailer makes in the reporting period, regardless of whether the retailer actually collects the retail delivery fees from the purchaser, as well as any retail delivery fees collected in excess of this amount.

(i) A retailer is required to remit, with the filing of each return, the total retail delivery fees amount shown to be due on the return.

(ii) A retailer that fails to pay any retail delivery fees due to the Department by the due date prescribed in paragraph (9)(a) of this rule is subject to penalties and interest pursuant to paragraph (11) of this rule.

(iii) A retailer is not permitted to retain any portion of the retail delivery fees to cover the retailer's expense in the collection and remittance of the retail delivery fees.

(iv) For retailers with an annual or thirteen-month reporting period, the retailer is liable and responsible to remit the following amounts to the Department on or before the due date regardless of whether the retailer actually collected the retail delivery fees from the purchaser:

(A) an amount equal to the product of all retail delivery fees in effect from January 1 of the applicable year to June 30 of that year and the number of retail deliveries the retailer made in that period;

(B) an amount equal to the product of all retail delivery fees in effect from July 1 of the applicable year through December 31 of that year and the number of retail deliveries the retailer made in that period; and

(C) any retail delivery fees collected in excess of these amounts.

(10)Refunds and Credits. The provisions of sections 39-21-108 and 39-26-703, C.R.S., govern claims for refund or credit of retail delivery fees, including, but not limited to, the limitations on such claims. In addition, for purposes of retail delivery fees, the following rules apply:

(a)Claim for Refund. A retailer or purchaser that overpays, or a purchaser that incorrectly paid, the retail delivery fees shall file a claim for refund for the overpayment of the retail delivery fees pursuant to sections 39-21-108 and 39-26-703, C.R.S., and the rules thereunder.

(b)Credit for Refunded Fees Collected in Error. A retailer is allowed a credit in accordance with section 39-26-703 (2.5)(b)(I), C.R.S., equal to the amount of any retail delivery fees refunded during the reporting period if:

(i) The retailer collected the retail delivery fees in the current or prior period;

(ii) The sale was exempt from or not subject to the retail delivery fees under these rules;

(iii) The retailer remitted the retail delivery fees to the Department; and

(iv) The retailer refunded the retail delivery fees in full to the purchaser.

(c)Disputes. If a dispute arises between the purchaser and the retailer as to whether a sale was subject to or exempt from the retail delivery fees, the retailer shall collect and the purchaser shall pay the retail delivery fees. The purchaser shall file a claim for refund of the disputed fees within the statute of limitations in accordance with this paragraph (12) of this rule.

(d)Returned Retail Deliveries. A retailer may not refund the retail delivery fees imposed on a retail delivery when the purchased tangible personal property is returned to the retailer for a full refund of the purchase price and any applicable sales tax. A subsequent delivery to return the tangible personal property to the retailer is not subject to the retail delivery fees because no retail sale has taken place.

(e)Canceled Retail Deliveries. A retailer may claim a credit for previously paid retail delivery fees for any retail sale that was canceled before the item was shipped if the retailer refunded to the purchaser the full purchase price, the retail delivery fees, and any applicable sales tax. The purchaser may claim a refund of the retail delivery fees if the retailer does not refund the retail delivery fees.

(f)Bad Debts Charged-off. Any retail delivery fees paid on retail deliveries represented by accounts found to be worthless and actually charged off for income tax purposes cannot be credited by the retailer upon a subsequent retail delivery fee payment.

(11)Penalties and Interest. Because retail delivery fees are collected, administered, and enforced in the same manner as state sales tax under article 26 of title 39, C.R.S., all civil and criminal penalties, and any applicable interest imposed under articles 21 and 26 of title 39, C.R.S., apply, including, but not limited to, the penalty imposed by section 39-21-116.5, C.R.S.

(12)Statute of Limitations. Because retail delivery fees are collected, administered, and enforced in the same manner as the sales tax under article 26 of title 39, C.R.S., the limitations provided in sections 39-21-107, 39-21-108, and 39-26-125, C.R.S., apply to the retail delivery fees. With respect to overpayments and claims for refund or credit, the limitations in section 39-26-703, C.R.S., apply.

(13)Power of Collection and Enforcement. All money paid to a retailer as the retail delivery fees is and remains public money, the property of the State of Colorado, in the hands of the retailer, and the retailer shall hold the money in trust for the sole use and benefit of the State of Colorado until paid to the Department. The Executive Director has the full powers of collection and enforcement allowed under articles 20, 21, and 26 of title 39, C.R.S., and article 35 of title 24, C.R.S., including, but not limited to, the authority to make estimated returns, and to issue warrants commanding the levy, distraint, and sale of property. In accordance with section 39-26-117, C.R.S., the retail delivery fees are a first and prior lien upon the goods and business fixtures of or used by any retailer under lease, title retaining contract, or other contract arrangement, excepting stock of goods sold in the ordinary course of business, and takes precedence on all such property over other liens or claims of whatsoever kind or nature.

(14)Calculation and Publication of the Retail Delivery Fees.

(a) Each year the Department shall calculate whether an adjustment to the retail delivery fee set forth in section 43-4-218, C.R.S., is required because inflation is positive and cumulative inflation from the time of the last adjustment in the amount of the retail delivery fee, when applied to the sum of the current retail delivery fee set forth in section 43-4-218(3), C.R.S., and all current enterprise retail delivery fees described in section 43-4-218(2)(a), C.R.S., and rounded to the nearest whole cent, results in an increase of at least one whole cent in the total amount of the retail delivery fees.

(i) The Department shall calculate inflation by applying the methodology set forth in section 43-4-218(2)(b), C.R.S. This methodology will also determine whether inflation is positive. When the calculated inflation is not positive, the amount of the retail delivery fees will not be adjusted for that year.

(ii) In years in which the inflation calculated pursuant to the methodology set forth in section 43-4-218(2)(b), C.R.S., does not result in an increase of at least one whole cent in the total amount of the retail delivery fees, the calculated increase in inflation must be added to the calculation of inflation for future years until the cumulative inflation from the time of the last adjustment in the amount of the retail delivery fees results in an increase of at least one whole cent.

(b)Publication of the Retail Delivery Fees. The Department shall publish the total amount of the inflation-adjusted retail delivery fees on its website tax.colorado.gov, or its successor website, no later than April 15 of each calendar year. The Department may also publish the total amount of the inflation-adjusted retail delivery fees by other means.

43-4-218

46 CR 06, March 25, 2023, effective 4/14/2023

Basis and Purpose. The bases for this rule are sections 24-38.5-303, 25-7.5-103, 39-21-101, 39-21-102, 39-21-103, 39-21-104, 39-21-104.5, 39-21-105, 39-21-105.5, 39-21-106, 39-21-107, 39-21-108, 39-21-109, 39-21-110, 39-21-110.5, 39-21-111, 39-21-112, 39-21-113, 39-21-114, 39-21-114.5, 39-21-116, 39-21-116.5, 39-21-118, 39-21-119, 39-21-119.5, 39-21-120, 39-26-102, 39-26-104, 39-26-105, 39-26-109, 39-26-112, 39-26-115, 39-26-116, 39-26-117, 39-26-118, 39-26-120, 39-26-121, 39-26-122, 39-26-125, 39-26-703, 39-26-726, 39-26-729, 43-4-218, 43-4-805, 43-4-1203, and 43-4-1303, C.R.S. The purpose of this rule is to set forth the manner in which retail delivery fees are collected, administered, and enforced.