Performance statement - definitions - repeal

(a) The maintaining within this state, directly or indirectly or by a subsidiary, of an office, distribution facility, salesroom, warehouse, storage place, or other similar place of business, including the employment of a resident of this state who works from a home office in this state; or

(b) The soliciting, either by direct representatives, indirect representatives, manufacturers' agents, or by distribution of catalogues or other advertising, or by use of any communication media, or by use of the newspaper, radio, or television advertising media, or by any other means whatsoever, of business from persons residing in this state and by reason thereof receiving orders from, or selling or leasing tangible personal property to, such persons residing in this state for use, consumption, distribution, and storage for use or consumption in this state.

(c) Economic nexus. (I) Except as provided in subsection (3)(c)(II) of this section, a person is doing business in this state in a calendar year:

(A) If in the previous calendar year the person has made retail sales of tangible personal property, commodities, or services in the state as specified in section 39-26-104 (3), exceeding one hundred thousand dollars; or

(B) On and after the first day of the month after the ninetieth day after the person has made retail sales of tangible personal property, commodities, or services in the state as specified in section 39-26-104 (3), in the current calendar year that exceed one hundred thousand dollars.

(II) Beginning October 1, 2019, for purposes of determining whether the thresholds set forth in subsection (3)(c)(I) of this section are met:

(A) A marketplace facilitator shall include all sales made by marketplace sellers in and through its marketplace; and

(B) A marketplace seller shall not include any sales made in or through a marketplace facilitator's marketplace.

(III) This subsection (3)(c) does not apply to any person who is doing business in this state under subsection (3)(a) of this section but otherwise applies to any other person.

(4) Farm close-out sale means a sale by auction or private treaty of all tangible personal property of a farmer or rancher previously used by him in carrying on his farming or ranching operations. Unless said farmer or rancher is making or attempting to make full and final disposition of all property used in his farming or ranching operations and is abandoning the said operations on the premises whereon they were previously conducted, such sale shall not be deemed a farm close-out sale within the meaning of this article.

(4.5) (a) Food means food for domestic home consumption as defined in 7 U.S.C. sec. 2012 (k), as amended, for purposes of the federal food stamp program, or any successor program, as defined in 7 U.S.C. sec. 2012 (l), as amended; except that food does not include carbonated water marketed in containers; chewing gum; seeds and plants to grow foods; prepared salads and salad bars; packaged and unpackaged cold sandwiches; deli trays; and hot or cold beverages served in unsealed containers or cups that are vended by or through machines or non-coin-operated coin-collecting food and snack devices on behalf of a vendor.

(b) In determining whether a food product is for domestic home consumption, unless the vendor is described in section 39-26-104 (1)(e), no inference shall be drawn from the type of vendor selling the product, the location of the product within a store, or the manner in which the product is marketed.

(5) Gross taxable sales means the total amount received in money, credits, or property, excluding the fair market value of exchanged property which is to be sold thereafter in the usual course of the retailer's business, or other consideration valued in money from sales and purchases at retail within this state, and embraced within the provisions of this article. The taxpayer may take credit in this report of gross sales for an amount equal to the sale price of property returned by the purchaser when the full sale price thereof is refunded whether in cash or by credit. The fair market value of any exchanged property which is to be sold thereafter in the usual course of the retailer's business, if included in the full price of a new article, shall be excluded from the gross sales. On all sales at retail, valued in money, when such sales are made under conditional sales contract, or under other forms of sale where the payment of the principal sum thereunder is extended over a period longer than sixty days from the date of sale thereof, only such portion of the sale amount thereof may be counted for the purpose of imposition of the tax imposed by this article as has actually been received in cash by the taxpayer during the period for which the tax imposed by this article is due and payable. Taxes paid on gross sales represented by accounts found to be worthless and actually charged off for income tax purposes may be credited upon a subsequent payment of the tax provided in this article, but if any such accounts are thereafter collected by the taxpayer, a tax shall be paid upon the amounts so collected.

(5.5) Livestock means cattle, horses, mules, burros, sheep, lambs, poultry, swine, ostrich, llama, alpaca, and goats, regardless of use, and any other animal which is raised primarily for food, fiber, or hide production. Livestock shall also mean alternative livestock as defined under section 35-41.5-102, C.R.S. Livestock shall not mean a pet animal as defined under section 35-80-102 (10), C.R.S.

(5.6) Livestock production facility means any structure used predominately for the housing, containing, sheltering, or feeding of livestock, including, without limitation, barns, corrals, feedlots, and swine houses.

(5.7) Mainframe computer access means the provision of access to computer equipment for the purpose of storing or processing data. Mainframe computer access does not include the provision of access to computer equipment for the purpose of examining or acquiring data maintained by the vendor. Mainframe computer access does not include the provision of access to computer equipment incident to electronic computer software delivery, as defined in subsection (15)(c)(II)(C) of this section, or incident to the use of computer software hosted by an application service provider, as defined in subsection (15)(c)(II)(A) of this section.

(5.8) Marketplace means 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, commodities, or services are offered for sale.

(5.9) (a) Marketplace facilitator means a person who:

(I) Contracts with a marketplace seller to facilitate for consideration, regardless of whether the consideration is deducted as fees from the transaction, the sale of the marketplace seller's tangible personal property, commodities, or services through the person's marketplace;

(II) Engages directly or indirectly, through one or more affiliated persons, in transmitting or otherwise communicating the offer or acceptance between a purchaser and the marketplace seller; and

(III) Either directly or indirectly, through agreements or arrangements with third parties, collects the payment from the purchaser and transmits the payment to the marketplace seller.

(b) A marketplace facilitator does not include a person that exclusively provides internet advertising services or lists products for sale, and that does not otherwise meet the definition set forth in subsection (5.9)(a) of this section.

(6) Marketplace seller means a person, regardless of whether the person is doing business in this state, who has an agreement with a marketplace facilitator and offers for sale tangible personal property, commodities, or services through a marketplace owned, operated, or controlled by a marketplace facilitator.

(6.1) Medical marijuana has the same meaning as set forth in section 44-10-103 (34).

(6.2) Multichannel seller means 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.

(6.3) Person includes any individual, firm, limited liability company, partnership, joint venture, corporation, estate, or trust or any group or combination acting as a unit, and the plural as well as the singular number.

(6.4) Packing and crating means tangible personal property furnished to prepare tangible personal property purchased at retail for delivery to a location designated by the purchaser.

(6.5) Photocopying means the sale of a document rendered on paper or other similar material by a machine that creates an accurate reproduction of the original. Photocopying does not include the provision of a photocopy in connection with services if the purchaser is not charged separately for photocopying.

(6.6) Precious metal bullion means any precious metal, including, but not limited to, gold, silver, platinum, and palladium, that has been put through a process of refining and is in such a state or condition that its value depends upon its precious metal content and not its form.

(6.7) Pre-press preparation printing materials means those tangible products converted to use for a specific print job that are subsequently saved but can only be reused for that same print client on rerun. Title to such pre-press preparation printing materials must pass to an independent customer with the sale of the printed materials, and they must be reusable for their original purpose or a similar purpose after the press run. Examples of pre-press preparation printing materials include, but are not limited to, photos, color keys, dies, engravings, light sensitive film or paper, masking sheets of any material, plates, rotogravure cylinders, and proofing samples of any material. No disposable materials or materials consumed to a significant degree are pre-press preparation printing materials for the purposes of this article. Examples of disposable or consumable materials include, but are not limited to, tape, alcohol, glues, adhesives, washes, silicon solutions, pens, markers, and cleaners.

(6.8) Public school means a public school of a school district in this state or an institute charter school.

(7) (a) Purchase price means the price to the consumer, exclusive of any direct tax imposed by the federal government or by this article 26, exclusive of any retail delivery fee and enterprise retail delivery fees imposed or collected as specified in section 43-4-218, 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 time and place of the exchange, if:

(I) Such exchanged property is to be sold thereafter in the usual course of the retailer's business; or

(II) 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.

(b) In the case of the sale or transfer of wireless telecommunication equipment as an inducement to a consumer to enter into or continue a contract for telecommunication services that are taxable pursuant to this part 1, purchase price means and shall be limited to the monetary amount paid by the consumer and shall not reflect any sales commission or other compensation received by the retailer as a result of the consumer entering into or continuing a contract for such telecommunication services. Nothing in this paragraph (b) shall be construed to define purchase price as it applies to the amount a retailer collects from a consumer who defaults or terminates a contract for telecommunication services.

(c) With respect to the purchase price of a heavy truck, trailer, or tractor, the price to the consumer shall also be exclusive of the federal excise tax on the first retail sale of the heavy truck, trailer, or tractor for which the retailer is liable.

(7.5) Qualified purchaser means a person domiciled in Colorado who has been issued a direct payment permit number pursuant to section 39-26-103.5.

(7.6) and (7.7) Repealed.

(8) Retailer or vendor means a person doing business in this state known to the trade and public as such, and selling to the user or consumer, and not for resale. The term includes a marketplace facilitator, a marketplace seller, and a multichannel seller doing business in this state.

(9) Retail sale includes all sales made within the state except wholesale sales.

(10) Sale or sale and purchase includes installment and credit sales and the exchange of property as well as the sale thereof for money; every such transaction, conditional or otherwise, for a consideration, constituting a sale; and the sale or furnishing of electrical energy, gas, steam, telephone, or telegraph services taxable under the terms of this article. Neither term includes:

(a) A division of partnership or limited liability company assets among the partners or limited liability company members according to their interests in the partnership or limited liability company;

(b) 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;

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

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

(f) The transfer of assets from a subsidiary corporation or corporations which are owned at least eighty percent by the parent corporation to a parent corporation or to another subsidiary which is owned at least eighty 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;

(g) A transfer of a limited liability company or partnership interest;

(h) The transfer in a reorganization qualifying under section 368 (a)(1) of the Internal Revenue Code of 1986, as amended;

(i) The formation of a limited liability company or partnership by the transfer of assets to the limited liability company or partnership or transfers to a limited liability company or partnership in exchange for proportionate interests in the limited liability company or partnership;

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

(k) 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 provided by subsection (12) of this section. For the purposes of this paragraph (k), a closely held subsidiary corporation is one in which the parent corporation owns stock possessing at least eighty percent of the total combined voting power of all classes of stock entitled to vote and owns at least eighty percent of the total number of shares of all other classes of stock.

(11) Sale or sale and purchase, in addition to the items included in subsection (10) of this section, includes the transaction of furnishing rooms or accommodations by any person, partnership, limited liability company, association, corporation, estate, receiver, trustee, assignee, lessee, or person acting in a 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, apartment hotel, lodging house, motor hotel, guesthouse, guest ranch, trailer coach, mobile home, auto camp, or trailer court and park, under any concession, permit, right of access, license to use, or other agreement, or otherwise.

(12) Except as otherwise provided in this subsection (12), the sales tax is imposed on the full purchase price of articles sold after manufacture or after having been made to order and includes the full purchase price for material used and the service performed in connection therewith, excluding, however, such articles as are otherwise exempted in this article. In connection with the transactions referred to in paragraph (k) of subsection (10) of this section, the sales tax is imposed only on the amount of any increase in the fair market value of such assets resulting from the manufacturing, fabricating, or physical changing of the assets by the transferor corporation. Except as otherwise provided in this subsection (12), the sales price is the gross value of all materials, labor, and service, and the profit thereon, included in the price charged to the user or consumer.

(13) School means an educational institution having a curriculum comparable to grade, grammar, junior high, high school, or college, or any combination thereof, requiring daily attendance, having an enrollment of at least forty students, and charging a tuition fee.

(13.5) (Deleted by amendment, L. 2011, (HB 11-1293), ch. 299, p. 1437, § 4, effective July 1, 2012.)

(14) State treasurer or treasurer means the state treasurer of the state of Colorado.

(15) (a) (I) Tangible personal property means corporeal personal property. The term embraces all goods, wares, merchandise, products and commodities, and all tangible or corporeal things and substances that are dealt in and capable of being possessed and exchanged, except as set forth in this subsection (15). The term shall not be construed to include newspapers, as legally defined by section 24-70-102, preprinted newspaper supplements that become attached to or inserted in and distributed with such newspapers, or direct mail advertising materials that are distributed in Colorado by any person engaged solely and exclusively in the business of providing cooperative direct mail advertising; except that, commencing March 1, 2010, for purposes of the state sales or use tax, tangible personal property shall include direct mail advertising materials that are distributed in Colorado by any person engaged solely and exclusively in the business of providing cooperative direct mail advertising.

(II) No funding received from revenues received as a result of the passage of House Bill 10-1189, enacted in 2010, shall be used to fund additional full-time equivalent state employees.

(b) (Deleted by amendment, L. 2011, (HB 11-1293), ch. 299, p. 1437, § 4, effective July 1, 2012.)

(b.5) (I) Tangible personal property includes digital goods. The method of delivery does not impact the taxability of a sale of tangible personal property. Examples of methods used to deliver tangible personal property under current technology include but are not limited to compact disc, electronic download, and internet streaming.

(II) As used in this subsection (15)(b.5), digital good means any item of tangible personal property that is delivered or stored by digital means, including but not limited to video, music, or electronic books.

(c) (I) Tangible personal property, commencing July 1, 2012, shall include computer software if the computer software meets all of the following criteria:

(A) The computer software is prepackaged for repeated sale or license;

(B) The use of the computer software is governed by a tear-open nonnegotiable license agreement; and

(C) The computer software is delivered to the customer in a tangible medium. Computer software is not delivered to the customer in a tangible medium if it is provided through an application service provider, delivered by electronic computer software delivery, or transferred by load and leave computer software delivery.

(II) As used in this paragraph (c), unless the context otherwise requires:

(A) Application service provider or ASP means an entity that retains custody over or hosts computer software for use by third parties. Users of the computer software hosted by an ASP typically will access the computer software via the internet. The ASP may or may not own or license the computer software, but generally will own and maintain hardware and networking equipment required for the user to access the computer software. Where the ASP owns the computer software, the ASP may charge the user a license fee for the computer software or a fee for maintaining the computer software or hardware used by its customer.

(B) Computer software means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.

(C) Electronic computer software delivery means computer software transferred by remote telecommunications to the purchaser's computer, where the purchaser does not obtain possession of any tangible medium in the transaction.

(D) Load and leave computer software delivery means delivery of computer software to the purchaser by use of a tangible medium where the title to or possession of the tangible medium is not transferred to the purchaser, and where the computer software is manually loaded by the vendor, or the vendor's representative, at the purchaser's location.

(E) Prepackaged for repeated sale or license means computer software that is prepackaged for repeated sale or license in the same form to multiple users without modification, and is typically sold in a shrink-wrapped box.

(F) Tangible medium means a tape, disk, compact disc, card, or comparable physical medium.

(G) Tear-open nonnegotiable license agreement means a license agreement contained on or in the package, which by its terms becomes effective upon opening of the package and accepting the licensing agreement. Tear-open nonnegotiable license agreement does not include a written license agreement or contract signed by the licensor and the licensee.

(III) The internalized instruction code that controls the basic operations, such as arithmetic and logic, of the computer causing it to execute instructions contained in system programs is an integral part of the computer and is not normally accessible or modifiable by the user. Such internalized instruction code is considered part of the hardware and considered tangible personal property that is taxable pursuant to section 39-26-104 (1)(a). The fact that the vendor does or does not charge separately for such code is immaterial.

(IV) If a retailer sells computer software to a Colorado purchaser that is considered tangible personal property taxable pursuant to section 39-26-104 (1)(a) and the Colorado purchaser pays the retailer for a quantity of computer software licenses with the intent to distribute the computer software to any of the purchaser's locations outside of Colorado, the measure of Colorado sales tax due is the total of the license fees associated only with the licenses that are actually used in Colorado. The Colorado purchaser shall provide a written statement to the retailer, attesting to the amount of the license fees associated with Colorado and with points outside of Colorado. The written statement shall relieve the retailer of any liability associated with the proration.

(16) Tax means either the tax payable by the purchaser of a commodity or service subject to tax, or the aggregate amount of taxes due from the vendor of such commodities or services during the period for which he is required to report his collections, as the context may require.

(17) Taxpayer means any person obligated to account to the executive director of the department of revenue for taxes collected or to be collected under the terms of this article.

(18) Wholesaler means a person doing a regularly organized wholesale or jobbing business, and known to the trade as such and selling to retail merchants, jobbers, dealers, or other wholesalers, for the purpose of resale.

(19) (a) (I) Wholesale sale means a sale by wholesalers to retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers not for resale, and the latter sales shall be deemed retail sales and subject to the provisions of this article 26.

(II) The purpose of the wholesale sale exemption from the tax levied pursuant to section 39-26-104 (1)(a) is to ensure that sales tax is levied and collected only on a final end sale to a retail consumer and not on wholesale sales to avoid a single product being taxed multiple times before it is sold to a consumer.

(III) The effectiveness of the wholesale exemption from the tax levied pursuant to section 39-26-104 (1)(a) is measured by the number of taxpayers claiming the wholesale exemption from tax and the amount of tax liability not paid.

(b) Wholesale sale includes sales of all pre-press preparation printing materials, as defined in subsection (6.7) of this section, that are used by a printer for a specific printing contract where the printed product is sold at retail to a customer accepting delivery within this state.

(c) (I) Wholesale sale includes sales of agricultural compounds and spray adjuvants to be consumed by, administered to, or otherwise used in caring for livestock and all sales of semen for agricultural or ranching purposes.

(II) For purposes of this paragraph (c), agricultural compounds means:

(A) Insecticides, fungicides, growth-regulating chemicals, enhancing compounds, vaccines, and hormones;

(B) Drugs, whether dispensed in accordance with a prescription or not, that are used for the prevention or treatment of disease or injury in livestock;

(C) Animal pharmaceuticals that have been approved by the food and drug administration.

(III) For purposes of this paragraph (c), spray adjuvants means products that are used to increase the effectiveness of a pesticide.

(d) Wholesale sale includes sales of pesticides that are registered by the commissioner of agriculture for use in the production of agricultural and livestock products pursuant to the Pesticide Act, article 9 of title 35, C.R.S., and offered for sale by dealers licensed to sell such pesticides pursuant to section 35-9-115, C.R.S.

(e) Wholesale sale includes sales of fertilizer for use in the production of agricultural commodities. For purposes of this subsection (19)(e), fertilizer means fertilizer as defined in section 35-12-103 (12), but not including specialty fertilizer as defined in section 35-12-103 (30).

(f) Wholesale sale includes sales of spray adjuvants for use in the production of agricultural commodities. For purposes of this subsection (19)(f), spray adjuvants means products that are used to increase the effectiveness of a pesticide.

(f.5) Wholesale sale includes sales of agricultural compounds for use in the production of agricultural commodities. For purposes of this subsection

(19)(f.5), for income tax years commencing on or after January 1, 2026, agricultural compounds means soil conditioners, plant amendments, plant growth regulators, mulches, compost, soil used for aboveground production of agricultural commodities, manure, fish for non-stocking purposes, fish embryos, and fish eggs.

(g) (I) (A) For purposes of this subsection (19), before July 1, 2025, agricultural commodities does not include products regulated under article 10 of title 44.

(B) This subsection (19)(g)(I) is repealed, effective July 1, 2026.

(II) For purposes of this subsection (19), on or afer July1, 2025, agricultural commodities includes products regulated under article 10 of title 44.

(20) (a) Sales to and purchases of tangible personal property by a person engaged in the business of manufacturing, compounding for sale, profit, or use, any article, substance, or commodity, which tangible personal property enters into the processing of or becomes an ingredient or component part of the product or service which is manufactured, compounded, or furnished, and the container, label, or the furnished shipping case thereof, shall be deemed to be wholesale sales and shall be exempt from taxation under this part 1.

(b) As used in paragraph (a) of this subsection (20) with regard to food products, tangible personal property enters into the processing of such products and is therefore exempt from taxation when:

(I) It is intended that such property become an integral or constituent part of a food product which is intended to be sold ultimately at retail for human consumption; or

(II) Such property, whether or not it becomes an integral or constituent part of a food product, is a chemical, solvent, agent, mold, skin casing, or other material; is used for the purpose of producing or inducing a chemical or physical change in a food product or is used for the purpose of placing a food product in a more marketable condition; and is directly utilized and consumed, dissipated, or destroyed, to the extent it is rendered unfit for further use, in the processing of a food product which is intended to be sold ultimately at retail for human consumption.

(21) (a) Sales and purchases of electricity, coal, gas, fuel oil, steam, coke, or nuclear fuel, for use in processing, manufacturing, mining, refining, irrigation, construction, telegraph, telephone, and radio communication, street and railroad transportation services, and all industrial uses, and newsprint and printer's ink for use by publishers of newspapers and commercial printers shall be deemed to be wholesale sales and shall be exempt from taxation under this part 1.

(b) Repealed.

(22) Should a dispute arise between the purchaser and seller as to whether or not any such sale is exempt from taxation, nevertheless the seller shall collect and the purchaser shall pay such tax, and the seller shall thereupon issue to the purchaser a receipt or certificate, on forms prescribed by the executive director of the department of revenue, showing the names of the seller and purchaser, the items purchased, the date, price, amount of tax paid, and a brief statement of the claim of exemption. The purchaser thereafter may apply to the said executive director for a refund of such taxes, and it is the executive director's duty to determine the question of exemption, subject to review by the courts, as provided in section 39-21-105. If any seller fails to collect or purchaser fails to pay the tax levied by this article 26 and on sales on which exemption is disputed, the seller or purchaser commits:

(a) A petty offense if the amount is less than three hundred dollars;

(b) A class 2 misdemeanor if the amount is three hundred dollars or more but less than one thousand dollars;

(c) A class 1 misdemeanor if the amount is one thousand dollars or more but less than two thousand dollars;

(d) A class 6 felony if the amount is more than two thousand dollars but less than five thousand dollars;

(e) A class 5 felony if the amount is five thousand dollars or more but less than twenty thousand dollars;

(f) A class 4 felony if the amount is twenty thousand dollars or more but less than one hundred thousand dollars;

(g) A class 3 felony if the amount is one hundred thousand dollars or more but less than one million dollars; and

(h) A class 2 felony if the amount is one million dollars or more.

(23) Except as provided in section 39-26-713 (1)(a), when right to continuous possession or use for more than three years of any article of tangible personal property is granted under a lease or contract and such transfer of possession would be taxable if outright sale were made, such lease or contract shall be considered the sale of such article, and the tax shall be computed and paid by the vendor upon the rentals paid.