§ 53-24. Definitions.

As used in this article, the following words, phrases and, where applicable, their declensional and inflectional forms shall have the meanings given to them in this section except where the context in which they are used indicates clearly and requires a different meaning according to customary usage. The words "shall" and "must" are to be construed as mandatory and not directory. In addition to the following definitions, the definitions and general provisions of chapter 1 shall be applicable insofar as not expressly inconsistent with the provisions hereof.

(1)

"Aircraft" means a device that is used or intended to be used for flight in the air and designed to carry at least one (1) person.

(2)

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

(3)

"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.

(4)

"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.

(5)

"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 (2) 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 twelve thousand five hundred (12,500) pounds or less and who do not engage in scheduled service or mail carriage service.

(6)

"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.

(7)

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

(8)

[Reserved.]

(9)

"Construction materials" means tangible personal property which, when combined with other tangible 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, wall-paper, 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 or inseparable part of a completed structure or project are not construction materials.

(10)

"Cover charge" means a charge paid to a club or similar entertainment establishment which may, or may not, entitle the patron paying such charge to receive tangible personal property, such as food and/or beverages.

(11)

"Digital product" means an electronic product including, but not limited to: (1) "digital images" which means works that include, but are not limited to, the following that are generally recognized in the ordinary and usual sense as "photographs," "logos," "cartoons," or "drawings," (2) "digital audio-visual works" which means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any, (3) "digital audio works" which means works that result from the fixation of a series of musical, spoken, or other sounds, including ringtones. For purposes of the definition of "digital audio works," "ringtones" means digitized sound files that are downloaded onto a device and that may be used to alert the customer with respect to a communication, and (4) "digital books" which means works that are generally recognized in the ordinary and usual sense as "books."

(12)

"Farm equipment" means any farm tractor, as defined in Section 42-1-102(33), C.R.S., any implement of husbandry, as defined in Section 42-1-102(44), C.R.S., and irrigation equipment having a per unit purchase price of at least one thousand dollars ($1,000.00). Farm equipment also includes, regardless of purchase price, attachments and bailing wire, binders twine and surface wrap used primarily and directly in any farm operation. Farm equipment also includes, regardless of purchase price, parts that are used in the repair or maintenance of the farm equipment described in this paragraph, all shipping pallets, crates, or aids paid for by a farm operation, and aircraft designed or adapted to undertake agricultural applications. Farm equipment also includes, regardless of purchase price, dairy equipment. Except for shipping pallets, crates or aids used in the transfer or shipping of agricultural products, Farm equipment does not include: (1) vehicles subject to the registration requirements of Section 42-3-103, C.R.S., regardless of the purpose for which such vehicles are used; (2) machinery, equipment, materials, and supplies used in a manner that is incidental to a farm operation; (3) maintenance and janitorial equipment and supplies; and (4) tangible personal property used in any activity other than farming, such as office equipment and supplies and equipment and supplies used in the sale or distribution of farm products, research, or transportation.

(12.5)

"Feminine hygiene products" means products that are designed to absorb or contain menstrual flow. Feminine hygiene products include, but are not limited to, tampons, menstrual pads and sanitary napkins, pantiliners, menstrual sponges, and menstrual cups.

(13)

"Food" means:

a.

Food for domestic, home or household use as the manager may by regulation define which is advertised or marketed for human consumption and is sold in the same form, condition, quantities and packaging as is commonly sold by grocers.

b.

Food as defined in Section 2012(g) of Title 7 of the United States Code as of, and as it may be amended after, October 1, 1987, that is eligible for purchase by the medium of exchange commonly known as 'food stamps,' and the sale of food as defined in or pursuant to Section 1786 of Title 42 of the United States Code as of, and as it may be amended after, October 1, 1987, that is eligible for purchase with vouchers, checks or similar certificates of exchange for the 'special supplemental food program' for women, infants, and children.

c.

Notwithstanding the definition of food referred to in paragraph b of this subsection, the term 'food' shall not include food or drink served or furnished as described in subsection 53-25(5) of this article; neither shall it include carbonated water sold in containers, chewing gum, spirituous, malt or vinous liquors, seeds and plants to grow foods, prepared salads, salad bars, cold sandwiches, and deli trays unless any of those items, excepting spirituous, malt or vinous liquors, is actually purchased with food stamps or vouchers as they are described in paragraph b of this subsection; nor shall the term 'food' as used in this subsection include food and drink vended by or through machines.

(14)

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

(15)

"Internet subscription" service means software programs, systems, data and applications available online through rental, lease or subscription, that provide information and services including, but not limited to, data linking, data research, data analysis, data filtering or record compiling.

(16)

"Manufacturing" means the operation or performance of an integrated series of operations which places a product, article, substance, commodity, or other tangible personal property in a form, composition or character different from that in which it was acquired whether for sale or for use by a manufacturer. The change in form, composition or character must result in a different product having a distinctive name, character or use from the raw or prepared materials.

(17)

"Medical supplies" means prescription drugs for humans, prosthetic devices for humans, and special beds for patients with neuromuscular or similar debilitating ailments, when sold for the direct, personal use of a specific individual in accordance with a prescription or other written directive issued by a licensed practitioner of medicine, dentistry or podiatry; corrective eyeglass lenses (including eyeglass frames), and corrective contact lenses, when sold for the direct, personal use of a specific individual in accordance with a prescription or other written directive issued by a licensed practitioner of medicine or optometry; wheelchairs, and crutches, when sold for the direct, personal use of a specific individual; oxygen and hemodialysis products for use by a medical patient, hearing aids, hearing aid batteries, insulin, insulin measuring and injecting devices, glucose to be used for treatment of insulin reactions, and human whole blood, plasma, blood products and derivatives. This exemption excludes items purchased for use by medical and dental practitioners or medical facilities in providing their services, even though certain of those items may be packaged for single use by individual patients after which the item would be discarded.

(18)

"Motor fuel" means gasoline, casing head or natural gasoline, benzol, benzene and naphtha, gasohol and any liquid prepared, advertised, offered for sale, sold for use or used or commercially usable in internal combustion engines for the generation of power for the propulsion of motor vehicles upon the public highways. The term does not include fuel used for the propulsion or drawing of aircraft or railroad cars or railroad locomotives.

(19)

"Prepress preparation" material means all materials used by those in the printing industry including, but not limited to, airbrush color photos, color keys, dies, engravings, light-sensitive film, light-sensitive paper, masking materials, Mylar, plates, proofing materials, tape, transparencies, and veloxes, which are used by printers in the preparation of customer specific layouts or in plates used to fill customers' printing orders, which are eventually sold to a customer, either in their original purchase form or in an altered form, and for which a sales or use tax is demonstrably collected from the printer's customer, if applicable, either separately from the printed materials or as part of the inclusive price therefor. Materials sold to a printer which are used by the printer for the printer's own purposes, and are not sold, either directly or in an altered form, to a customer, are not included within this definition.

(20)

"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. Sect. 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.

(21)

"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.

a.

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.

b.

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.

(22)

"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 individual 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, oxygen concentrators and oxygen with related accessories.

(23)

"Purchase" or "sale" means the acquisition for any consideration by any person of taxable tangible personal property, products, or services.

a.

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 taxable tangible personal property, products, or services;

2.

A lease, lease-purchase agreement, rental or grant of a license, including royalty agreements, to use taxable tangible personal property, products, or services;

3.

Performance of taxable services; or

4.

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

b.

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 transfer of assets of shareholders in the formation or dissolution of professional corporations, if no consideration including, but not limited to, the assumption of a liability is paid for the transfer of assets;

3.

The dissolution and the pro rata distribution of the corporation's assets to its stockholders, if no consideration including, but not limited to, the assumption of a liability is paid for the transfer of assets;

4.

A transfer of a partnership or limited liability company interest;

5.

The transfer of assets to a commencing or existing partnership or limited liability company, if no consideration including, but not limited to, the assumption of a liability is paid for the transfer of assets;

6.

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

(24)

"Rail carrier" means "rail carrier" as defined in Section 10102 of Title 49 of the United States Code as of October 10, 2013, and as it may be amended hereafter.

(25)

"Rail carrier part" means any tangible personal property that is originally designed and intended to be permanently affixed or attached as a component part of a locomotive or rail car used by a rail carrier.

(26)

"Retail sale" means any sale except a wholesale sale.

(27)

"Retailer" or "vendor" means any person selling, leasing, renting, or granting a license to use tangible personal property, products, 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; and (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.

(28)

"Software program" means a sequence of instructions that can be measured, interpreted and executed by an electronic device (e.g. a computer, tablets, smart phones) regardless of the means by which it is accessed or the medium of conveyance. Software program includes: (1) custom software program, which is a software program prepared to the special order or specifications of a single customer; (2) pre-written software program, which is a software program prepared for sale or license to multiple users, and not to the special order or specifications of a single customer. Pre-written software is commonly referred to as "canned," "off-the-shelf ("COTS")," "mass produced" or "standardized;" (3) modified software, which means pre-written software that is altered or enhanced by someone other than the purchaser to create a program for a particular user; and (4) the generic term "software," "software application," as well as "updates," "upgrades," "patches," "user exits," and any items which add or extend functionality to existing software programs.

(29)

"Software as a service" means software that is rented, leased or subscribed to from a provider and used at the consumer's location, including but not limited to applications, systems or programs.

(30)

"Software license fee" means a fee charged for the right to use, access, or maintain software programs.

(31)

"Software maintenance agreement" means an agreement, typically with a software provider, that may include (1) provisions to maintain the right to use the software; (2) provisions for software upgrades including code updates, version updates, code fix modifications, enhancements, and added or new functional capabilities loaded into existing software; or (3) technical support.

(32)

"Sound system services" means the provision of broadcast or pre-recorded audio programming to a building or portion thereof. Such term does not include installation of sound systems where the entire system becomes the property of the building owner or the sound system service is for presentation of live performances.

(33)

"Special fuel" means kerosene oil, kerosene distillate, diesel fuel, all liquefied petroleum gases, and all combustible gases and liquids for use in the generation of power for propulsion of motor vehicles upon the public highways. The term does not include fuel used for the propulsion or drawing of aircraft, railroad cars or railroad locomotives.

(34)

"Tangible personal property" means personal property that can be one (1) or more of the following: seen, weighed, measured, felt, touched, stored, transported, exchanged, or that is in any other manner perceptible to the senses.

(35)

"Tax deficiency" or "deficiency" means any amount of tax, penalty, interest, or other fee that is not reported and/or not paid on or before the date that any return or payment of the tax is required under the terms of this article.

(36)

"Taxable sales" means gross sales less any exemptions and deductions specified in this chapter.

(37)

"Taxable service" means any service subject to tax pursuant to this article.

(38)

"Telecommunications service" means the service of which the object is the transmission of any two-way interactive electronic or 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, Voice over Internet Protocol (VoIP), or any combinations of such media, including any form of mobile two-way communication.

(39)

"Television and entertainment services" means audio or visual content, that can be transmitted electronically by any means, for which a charge is imposed.

(40)

"Wholesale sale" means a sale by a wholesaler to a retailer, jobber, dealer, or other wholesaler for resale and does not include a sale by a wholesaler to a user or consumer not for resale; latter types of sales shall be deemed to be retail sales and shall be subject to the provisions of this article.

(41)

"Wholesaler" means any person doing an organized wholesale or jobbing business and selling to a retailer, jobber, dealer, or other wholesaler, for the purpose of resale, and not for storage, use, consumption, or distribution.

(Ord. No. 666-81, § 1, 12-14-81; Ord. No. 638-84, §§ 1—6, 12-3-84; Ord. No. 679-87, § 2, 11-23-87; Ord. No. 922-91, § 1, 12-9-91; Ord. No. 550-92, §§ 1, 2, 8-10-92; Ord. No. 262-07, § 1, 6-11-07; Ord. No. 775-07, § 92, 12-26-07; Ord. No. 755-09, § 1, 12-14-09; Ord. No. 34-12, § 2, 1-9-12; Ord. No. 529-13, § 1, 10-28-13; Ord. No. 528-17, § 3, 6-26-17; Ord. No. 529-17, § 3, 6-26-17; Ord. No. 930-17, § 4, 9-18-17; Ord. No. 137-19, § 1, 3-26-19)