§ 4.04.020. Definitions.

The following words and phrases, as used in this chapter, shall have the following meanings:

Aircraft means a device that is used or intended to be used for flight in the air.

Aircraft part means any tangible personal property that is intended to be permanently affixed or attached as a component part of an aircraft.

Aircraft simulator means a flight simulator training device (FSTD) as defined in Part I of Title 14 of the Code of Federal Regulations that is qualified in accordance with Part 60 of Title 14 of the Code of Federal Regulations for use in a Federal Aviation Administration Approved Flight Training Program.

Aircraft simulator part means any tangible personal property that is originally designed and intended to be permanently affixed or attached as a component part of an aircraft, and which will also function when it is permanently affixed or attached as a component part of an aircraft simulator.

Airline company means any operator who engages in the carriage by aircraft of persons or property as a common carrier for compensation or hire, or the carriage of mail, or any aircraft operator who operates regularly between two or more points and publishes a flight schedule. Airline company shall not include operators whose aircraft are all certified for a gross takeoff weight of 12,500 pounds or less and who do not engage in scheduled service or mail carriage service.

Auction means any sale where tangible personal property is sold by an auctioneer who is either the agent for the owner of such property or is in fact the owner thereof.

Automotive vehicle means any vehicle or device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, or any device used or designed for aviation or flight in the air. Automotive vehicle includes, but is not limited to, motor vehicles, trailers, semi-trailers or mobile homes. Automotive vehicle shall not include devices moved by human power or used exclusively upon stationary rails or tracks.

Business means all activities engaged in or caused to be engaged in with the object of gain, benefit, or advantage, direct or indirect.

Carrier access services means the services furnished by a local exchange company to its customers who provide telecommunications services which allow them to provide such telecommunications services.

Charitable organization means any entity which: (1) has been certified as a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code; and (2) is an organization which exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons or animals, freely and voluntarily ministers to the physical, mental, or spiritual needs of persons or animals, and thereby lessens the burden of government.

City or town means the municipality of Longmont, Colorado.

Coin-operated device means any device operated by coins or currency or any substitute therefor.

Collection costs shall include, but is not limited to, all costs of audit, assessment, bank fees, hearings, execution, lien filing, distraint, litigation, locksmith fees, auction fees and costs, prosecution and attorney fees.

Commercial packaging materials means containers, labels, and/or cases, that become part of the finished product to the purchaser, used by or sold to a person engaged in manufacturing, compounding, wholesaling, jobbing, retailing, packaging, distributing or bottling for sale, profit or use, and is not returnable to said person for reuse.

Construction materials means tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a structure or project including public and private improvements. Construction materials include, but are not limited to, such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, steel, stone, stucco, tile, trees, shrubs and other landscaping materials, wall board, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral and inseparable part of a completed structure or project are not construction materials.

Consumer means any person in the city who purchases, uses, stores, distributes or otherwise consumes tangible personal property or taxable services, purchased from sources inside or outside the city.

Director of finance means the director of finance of the city or such other person designated by the city; director of finance shall also include such person's designee.

Engaged in business in the city means performing or providing services or selling, leasing, renting, delivering or installing tangible personal property 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:

1.

directly, indirectly, or by a subsidiary maintains a building, store, office, salesroom, warehouse, or other place of business within the taxing jurisdiction;

2.

sends one or more employees, agents or commissioned salespersons 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.

maintains one or more employees, agents or commissioned salespersons on duty at a location within the taxing jurisdiction;

4.

owns, leases, rents or otherwise exercises control over real or personal property within the taxing jurisdiction; or

5.

makes more than one delivery into the taxing jurisdiction within a 12-month period by any means other than a common carrier.

Exempt commercial packaging materials means containers, labels and shipping cases sold to a person engaged in manufacturing, compounding, wholesaling, jobbing, retailing, packaging, distributing or bottling for sale, profit or use that meets all of the following conditions:

1.

Is used by the manufacturer, compounder, wholesaler, jobber, retailer, packager, distributor or bottler to contain or label the finished product;

2.

Is transferred by such person along with and as a part of the finished product to the purchaser; and

3.

Is not returnable to such person for reuse.

Farm closeout sale means full and final disposition of all tangible personal property previously used by a farmer or rancher in farming or ranching operations which are being abandoned.

Gross sales means the total amount received in money, credit, property or other consideration valued in money for all sales, leases or rentals of tangible personal property or services.

Industrial machinery and machine tools means those articles of tangible personal property exclusively used in the industrial manufacturing process, which have a purchase price in excess of $1,000.00.

License means a City of Longmont sales and/or use tax license.

Lodging services means the furnishing of rooms or accommodations by any person, partnership, association, corporation, estate, representative capacity or any other combination of individuals by whatever name known to a person who for a consideration uses, possesses, or has the right to use or possess any room in a hotel, inn, bed-and-breakfast residence, apartment, hotel, lodginghouse, motor hotel, guesthouse, guest ranch, trailer coach, mobile home, auto camp or trailer court and park, or similar establishment, for a period of less than 30 consecutive days under any concession, permit, right of access, license to use or other agreement, or otherwise.

Manufacturing means the operation of producing, in an industrial use, an item of tangible personal property different from and having a distinctive name, character or use from raw or prepared materials.

Measurement and inspection equipment means equipment used permanently and exclusively to test, measure or inspect products in the process of being manufactured or distributed, as well as equipment used to test, measure or control manufacturing processes. Examples include, but are not limited to, electrical and mechanical measuring equipment, equipment for quality control laboratories used to control and test products and processes in the course of production, testers, test chambers, analyzers, computer hardware, analytical and diagnostic software, process control devices and instruments, as well as any components of the foregoing.

Newspaper means a publication, printed on newsprint, intended for general circulation, and published regularly at short intervals, containing information and editorials on current events and news of general interest. The term newspaper does not include: magazines, trade publications or journals, credit bulletins, advertising inserts, circulars, directories, maps, racing programs, reprints, newspaper clipping and mailing services or listings, publications that include an updating or revision service, or books or pocket editions of books.

Parent means a parent of a student.

Person means any individual, firm, partnership, joint venture, corporation, limited liability company, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, or any group or combination acting as a unit.

Prescription drugs for humans means a drug which, prior to being dispensed or delivered, is required by the federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended, to state at a minimum the symbol "Rx Only," and is dispensed in accordance with any written or electronic order dated and signed by a licensed practitioner of the healing arts, or given orally by a practitioner and immediately reduced to writing by the pharmacist, assistant pharmacist, or pharmacy intern, specifying the name and any required information of the patient for whom the medicine, drug or poison is offered and directions, if any, to be placed on the label.

Price or purchase price means the aggregate value measured in currency paid or delivered or promised to be paid or delivered in consummation of a sale, without any discount from the price on account of the cost of materials used, labor or service cost, and exclusive of any direct tax imposed by the federal government or by this article, and, in the case of all retail sales involving the exchange of property, also exclusive of the fair market value of the property exchanged at the same time and place of the exchange, if: (1) such exchanged property is to be sold thereafter in the usual course of the retailer's business, or (2) such exchanged property is a vehicle and is exchanged for another vehicle and both vehicles are subject to licensing, registration, or certification under the laws of this state, including, but not limited to, vehicles operating upon public highways, off-highway recreation vehicles, watercraft, and aircraft. Any money or other consideration paid over and above the value of the exchanged property is subject to tax. Price or purchase price includes:

1.

The amount of money received or due in cash and credits.

2.

Property at fair market value taken in exchange but not for resale in the usual course of the retailer's business.

3.

Any consideration valued in money, whereby the manufacturer or someone else reimburses the retailer for part of the purchase price and other media of exchange.

4.

The total price charged on credit sales including finance charges which are not separately stated at the time of sale. An amount charged as interest on the unpaid balance of the purchase price is not part of the purchase price unless the amount added to the purchase price is included in the principal amount of a promissory note; except the interest or carrying charge set out separately from the unpaid balance of the purchase price on the face of the note is not part of the purchase price. An amount charged for insurance on the property sold and separately stated at the time of sale is not part of the purchase price.

5.

Installation, applying, remodeling or repairing the property, delivery and wheeling-in charges included in the purchase price and not separately stated.

6.

Transportation and other charges to effect delivery of tangible personal property to the purchaser.

7.

Indirect federal manufacturers' excise taxes, such as taxes on automobiles, tires and floor stock.

8.

The gross purchase price of articles sold after manufacturing or after having been made to order, including the gross value of all the materials used, labor and service performed and the profit thereon.

Price or purchase price shall not include:

1.

Any sales or use tax imposed by the State of Colorado or by any political subdivision thereof.

2.

The fair market value of property exchanged if such property is to be sold thereafter in the retailers' usual course of business. This is not limited to exchanges in Colorado. Out of state trade-ins are an allowable adjustment to the purchase price.

3.

Discounts from the original price if such discount and the corresponding decrease in sales tax due is actually passed on to the purchaser, and the seller is not reimbursed for the discount by the manufacturer or someone else. An anticipated discount to be allowed for payment on or before a given date is not an allowable adjustment to the price in reporting gross sales.

Prosthetic devices for humans means any artificial limb, part, device or appliance for human use which replaces a body part or aids or replaces a bodily function; is designed, manufactured, altered or adjusted to fit a particular patient; and is prescribed by a licensed practitioner of the healing arts. Prosthetic devices include, but are not limited to, prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, and oxygen concentrators with related accessories.

Purchase or sale means the acquisition for any consideration by any person of tangible personal property, other taxable products or taxable services that are purchased, leased, rented, sold, used, stored, distributed or consumed. These terms include capital leases, installment and credit sales, and property and services acquired by:

1.

Transfer, either conditionally or absolutely, of title or possession or both to tangible personal property, other taxable products, or taxable services;

2.

A lease, lease-purchase agreement, rental or grant of a license, including royalty agreements, to use tangible personal property, other taxable products, or taxable services. The utilization of coin-operated devices, except coin-operated telephones and coin-operated washers and dryers, which do not vend articles of tangible personal property shall be considered short-term rentals of tangible personal property;

3.

Performance of taxable services; or

4.

Barter or exchange for other tangible personal property, other taxable products, or services.

The terms purchase and sale do not include:

1.

A division of partnership assets among the partners according to their interests in the partnership;

2.

The formation of a corporation by the owners of a business and the transfer of their business assets to the corporation in exchange for all the corporation's outstanding stock, except qualifying shares, in proportion to the assets contributed;

3.

The transfer of assets of shareholders in the formation or dissolution of professional corporations;

4.

The dissolution and the pro rata distribution of the corporation's assets to its stockholders;

5.

A transfer of a partnership interest;

6.

The transfer in a reorganization qualifying under section 368(a)(1) of the Internal Revenue Code of 1954, as amended;

7.

The formation of a partnership by the transfer of assets to the partnership or transfers to a partnership in exchange for proportionate interests in the partnership;

8.

The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder;

9.

The transfer of assets from a parent corporation to a subsidiary corporation or corporations which are owned at least 80 percent by the parent corporation, which transfer is solely in exchange for stock or securities of the subsidiary corporation;

10.

The transfer of assets from a subsidiary corporation or corporations which are owned at least 80 percent by the parent corporation to a parent corporation or to another subsidiary which is owned at least 80 percent by the parent corporation, which transfer is solely in exchange for stock or securities of the parent corporation or the subsidiary which received the assets;

11.

The transfer of assets between parent and closely held subsidiary corporations, or between subsidiary corporations closely held by the same parent corporation, or between corporations which are owned by the same shareholders in identical percentage of stock ownership amounts, computed on a share-by-share basis, when a tax imposed by this article was paid by the transferor corporation at the time it acquired such assets except to the extent that there is an increase in the fair market value of such assets resulting from the manufacturing, fabricating, or physical changing of the assets by the transferor corporation. To such an extent any transfer referred to in this subsection 11 shall constitute a sale. For the purposes of this subsection 11, a closely held subsidiary corporation is one in which the parent corporation owns stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote and owns at least 80 percent of the total number of shares of all other classes of stock.

Research and development means the research of new or modified technologies or the development of new or modified materials, products, product components or manufacturing processes.

Research and development equipment means equipment used permanently and exclusively in the research of new or modified technologies or in the development of new or modified materials, products, product components or manufacturing processes. Examples include, but are not limited to, computer hardware and software, laboratory equipment, logic analyzers, test equipment and oscilloscopes, as well as any components of the foregoing.

Retail sale means all sales except wholesale sales.

Retailer means 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;

4.

Contractor, when acting in the capacity of a seller of building supplies, construction materials, and other tangible personal property.

Return means any form prescribed by the city/town administration for computing and reporting a total tax liability.

Sale that benefits a Colorado school means a sale of a commodity or service from which all proceeds of the sale, less only the actual cost of the commodity or service to a person or entity described in subsection 4.04.090.Y of this Code, are donated to a school or a school-approved student organization.

Sales tax means the tax that is collected or required to be collected and remitted by a retailer on sales taxed under this Code.

School means a public or nonpublic school for students in kindergarten through 12th grade or any portion thereof.

Student means any person enrolled in a school.

Tangible personal property means personal property that can be one or more of the following: seen, weighed, measured, felt, touched, stored, transported, exchanged, or that is in any other manner perceptible to the senses.

Tax means the use tax due from a consumer or the sales tax due from a retailer or the sum of both due from a retailer who also consumes.

Taxpayer means any person obligated to collect and/or pay tax under the terms of this Code.

Telecommunications service means the transmission of any two-way interactive electromagnetic communications including, but not limited to, voice, image, data and any other information, by the use of any means but not limited to, wire, cable, fiber-optical cable, microwave, radio wave or any combination of such media. Telecommunications service includes, but is not limited to, basic local exchange telephone service, toll telephone service and teletypewriter service, including, but not limited to, residential and business service, directory assistance, cellular mobile telephone or telecommunication service, specialized mobile radio and two-way pagers and paging service, Voice over internet protocol (VoIP), or any combinations of such media, including any form of mobile two-way communication. Telecommunications service does not include separately stated nontransmission services which constitute computer processing applications used to act on the information to be transmitted.

Use means the exercise, for any length of time by any person within the city of any right, power or dominion over tangible personal property or services when rented, leased or purchased at retail from sources either within or without the city from any person or vendor or used in the performance of a contract in the city whether such tangible personal property is owned or not owned by the taxpayer. Use also includes the withdrawal of items from inventory for consumption.

Use tax means the tax paid or required to be paid by a consumer for using, storing, distributing or otherwise consuming tangible personal property or taxable services inside the city.

Wholesale sales means sales to licensed retailers, jobbers, dealers or other wholesalers for resale. Sales by wholesalers to consumers are not wholesale sales. Sales by wholesalers to nonlicensed retailers are not wholesale sales.

Wholesaler means any person selling to retailers, jobbers, dealers or other wholesalers, for resale, and not for storage, use, consumption or distribution.

(Code 1981, § 2-4-2(A—N); Code 1993, § 4.04.020; Ord. No. O-80-28, § 1; Ord. No. O-83-94, § 1; Ord. No. O-86-27, § 1; Ord. No. O-89-2, §§ 1, 2; Ord. No. O-90-20, § 1; Ord. No. O-91-60, § 2; Ord. No. O-95-74, § 1; Ord. No. O-2003-61, § 1; Ord. No. O-2008-68, § 1; Ord. No. O-2017-22, § 1, 4-25-2017)