Opinion
No. 87CA0051
Decided December 8, 1988. Rehearing Denied January 19, 1989. Certiorari Denied July 3, 1989 (89SC92).
Appeal from the District Court of Boulder County Honorable Joseph J. Bellipanni, Judge.
Holme, Roberts Owen, Nancy J. Gegenheimer; James P. Kratochvill, J. Elaine Bialczak, for Plaintiff-Appellant.
Joseph N. de Raismes, City Attorney, Carl M. Varady, Assistant City Attorney, for Defendants-Appellees.
In this C.R.C.P. 106(a)(4) proceeding, plaintiff, ATT Communications of the Mountain States, Inc., (ATT), appeals the district court's order affirming the denial of its sales tax refund claim. We affirm.
ATT contends that the district court erred in determining that its purchase of access services from Mountain States Telegraph and Telephone Company (Mountain Bell) constituted the sale of tangible personal property rather than the sale of services. We disagree.
Under Boulder Revised Code 3-2-2(a), a sales tax is imposed on "the full purchase price paid or charged for tangible personal property and taxable services purchased or sold at retail . . . ." Tangible personal property is defined as "corporeal personal property that may be seen, weighed, measured, felt, or touched . . . ." Boulder Revised Code 3-1-1(u). "Purchase" or "sale" is defined as "the acquisition for any consideration by any person of tangible personal property or taxable services that are purchased, leased, sold, used, stored, distributed or consumed . . . ." Boulder Revised Code 3-1-1(o). Use is defined as "the exercise, for any length of time, by any person within the city of any right, power, dominion, or control over tangible personal property . . . ." Boulder Revised Code 3-1-1(y).
The hearing officer found, and the district court agreed, that the access charges paid by ATT to Mountain Bell enabled ATT to "use" Mountain Bell's transmission and switching equipment to transmit interchange calls to and from Boulder. The district court also affirmed the hearing officer's conclusion that, under the Boulder Revised Code, ATT's payment was a purchase of "tangible property" and therefore taxable. In light of the plain language of the ordinances quoted above, we agree with the conclusions of the district court that the access charges paid by ATT fall within Boulder's taxing provisions.
Plaintiff also contends that its purchase of access services is exempt from tax as a wholesale sale under the Boulder Revised Code. Again, we disagree.
We agree with the district court's findings that the "evidence before the assistant manager did not support a finding that ATT is a `wholesaler' or that its purchase of access services from Mountain Bell is a `wholesale sale'. The equipment used by ATT is used in ATT's business of providing interexchange services to its customers and therefore the exemption for wholesale sales is inapplicable." See Ross v. Fire Police Pension Ass'n, 713 P.2d 1304 (Colo. 1986).
Judgment affirmed.
JUDGE VAN CISE and JUDGE FISCHBACH concur.