Colo. Code Regs. 39-26-103.5
Current through Register Vol. 47, No. 11, June 10, 2024
Rule 39-26-103.5 - Direct Payment Permit(1)General Rule. A purchaser who holds a direct payment permit ("Qualified Purchaser") shall remit sales and use taxes directly to the Colorado Department of Revenue ("Department") and not to the retailer. Retailers who sell taxable goods or services to a Qualified Purchaser shall not collect sales tax from such purchasers.(2)Qualified Purchaser Qualifications. An applicant, which can be an entity or individual, for a direct payment permit must meet the following conditions. (a)Dollar Threshold. An applicant must have had a minimum of $7,000,000 in purchases on which Colorado state sales or use tax was owed during the twelve months preceding the application. The dollar threshold excludes purchases that are exempt from Colorado state sales and use tax, even if such purchases are subject to state-administered local sales or use taxes. See § 29-2-105, C.R.S. for a description of the local tax base. For example, the dollar threshold excludes exempt wholesale purchases of inventory. Additionally, commodities or tangible personal property that are to be erected upon or affixed to real property, such as building and construction materials and fixtures, are not included in the dollar threshold. See § 39-26-103.5(1)(a), C.R.S.(b)Good Standing. If an applicant has been subject to any tax administered by the Department for at least three years prior to the date of the application, an applicant cannot have been delinquent in collecting, remitting, or reporting any sales, use, income, or other tax administered by the Department for the immediate three years prior to the date applicant submits its application. If an applicant has not been subject to any tax administered by the Department for at least three years, the applicant cannot have been delinquent in collecting, remitting, or reporting taxes for any period after the date the applicant was first obligated to collect, remit, and report such taxes. The Department can waive this requirement if an applicant demonstrates to the satisfaction of the director or their designee that the failure to comply with the collecting, remitting, and reporting requirements was due to reasonable cause. In determining whether reasonable cause exists, the Department will consider, among other relevant aggravating and mitigating factors, whether: (i) the failure was due to willful or reckless disregard of applicant's tax obligations;(ii) the applicant failed to comply on more than one occasion;(iii) the magnitude of the failure was significant in terms of dollars or time; and(iv) the applicant made subsequent efforts to avoid future failures.(c)Accounting Systems and Practices. An applicant must have in place an accounting system and set of practices that are acceptable to the Department. The accounting system and practices must fully and accurately report the amount of sales or use tax to be reported on the appropriate sales or use tax return(s), including state-administered local tax jurisdictions. The Department may revoke a direct payment permit and may make assessments of tax, penalties, or interest if such system or practices are not adequate to enable the Department to fully and accurately collect and allocate to cities, counties, and other local taxing entities all the sales and use taxes that the Department collects on behalf of such entities.(d) A Qualified Purchaser is not required to be subject to the collection, remittance, and reporting requirements for sales taxes in order to obtain such a permit. Rather, a Qualified Purchaser can be subject to the collection, remittance, and reporting requirements for any tax administered by the Department.(3)Effective Date. A direct payment permit is effective from the date of issuance until December 31 of the third year following the year in which it is issued unless sooner revoked.(4)Purchaser's Funds. When a Qualified Purchaser uses a direct payment permit, the Qualified Purchaser must use its own funds when paying a retailer for a transaction to which the direct payment permit applies. Retailers cannot accept payment from persons other than the Qualified Purchaser, including payment from the personal funds of an individual if the permit is held in the name of an entity. Retailers must collect tax if a Qualified Purchaser is making a purchase with funds other than the Qualified Purchaser's funds and will be liable for unpaid taxes for transactions paid in contravention of this subsection (4).(5)Revocation of Permits.(a) The Department may revoke a direct payment permit if the Qualified Purchaser violates any statute or rule governing the administration of sales and use taxes, or if in the opinion of the Department the Qualified Purchaser becomes otherwise unable to meet any of the conditions for holding a direct payment permit. The Department shall provide written notice of the revocation by first-class mail to the last known address of the Qualified Purchaser thirty days prior to the effective date of such revocation. The notice of revocation shall set forth:(i) the factual and legal basis for revocation,(ii) advise the Qualified Purchaser of its right to appeal, and(iii) the date the Department issued the notice. The Department will issue a denial of a direct payment permit application in the same manner.
(b) An applicant who is denied a permit or a Qualified Purchaser whose permit was revoked, may appeal the decision by submitting to the Department's executive director a written request for hearing. The notice of appeal must be received by the Department within thirty days of the date of issuance of the notice of revocation or denial and contain the permit holder's name, address, permit account number (for revocations), and the legal and factual basis explaining why the permit should not be revoked or denied. Qualified Purchaser's notice of appeal shall suspend the effective date of the revocation until a final order resolving the appeal is issued by the executive director or the director's designee. The executive director or director's designee shall conduct a hearing and issue a final ruling on such appeal within a reasonable time.(6)Reporting Requirements.(a) A Qualified Purchaser holding a direct payment permit must directly remit to the Department all state and state-administered city, county and special district sales taxes that would have been collected by the retailer had the Qualified Purchaser purchased such goods or services without a direct payment permit. (i)Exceptions. A Qualified Purchaser holding a direct payment permit cannot pay county lodging taxes, county short-term rental taxes, and local marketing district taxes directly to the Department because such taxes are not sales taxes. Retailer must collect such taxes from the Qualified Purchaser and remit them to the Department. See § 30-11-107.5 and § 30-11-107.7, C.R.S.(b) A Qualified Purchaser must report and remit state and state-administered local taxes on or before the 20th day of each month following the month the Qualified Purchaser purchases taxable goods or services with a direct payment permit.(c) The vendor must retain a copy of Qualified Purchaser's direct pay permit.37 CR 18, September 25, 2014, effective 10/15/201438 CR 02, January 25, 2015, effective 2/14/201539 CR 10, May 25, 2016, effective 6/14/201640 CR 12, June 25, 2017, effective 7/15/201740 CR 23, December 10, 2017, effective 1/1/201841 CR 13, July 10, 2018, effective 7/30/201841 CR 14, July 25, 2018, effective 8/14/201842 CR 02, January 25, 2019, effective 12/18/2018, expires 4/17/2019.42 CR 02, January 25, 2019, effective 12/18/201842 CR 06, March 25, 2019, effective 4/14/201943 CR 04, February 25, 2020, effective 3/16/202043 CR 17, September 10, 2020, effective 9/30/202044 CR 01, January 10, 2021, effective 1/30/202144 CR 07, April 10, 2021, effective 4/30/202144 CR 08, April 25, 2021, effective 5/15/202145 CR 04, February 25, 2022, effective 3/17/202245 CR 23, December 10, 2022, effective 12/30/202246 CR 08, April 25, 2023, effective 5/15/2023