No. ( 1975 )

Mr. Joseph F. Dolan Executive Director Department of Revenue Capitol Annex Building 1375 Sherman Street Denver, Colorado 80203

Dear Mr. Dolan:

QUESTION PRESENTED AND CONCLUSION

This is in response to your inquiry as to whether there is statutory authority for the Department of Revenue to pay county clerks for the collection of sales tax.

My conclusion is "no."

ANALYSIS

A review and analysis of the applicable statutes concerning the payment and collection of sales tax reveals that there is no statutory authority for the Department of Revenue to pay county clerks for collecting sales tax. The only authority for payment for collecting sales tax is found in C.R.S. 1973, 39-26-105, which provides that a retailer or vendor shall retain three and one-third percent of the sales tax collected to cover the expenses of collection and remittance of the tax. Licensed retailers or vendors are agents of the state for the collection of the tax, and payment to them by purchasers is tantamount to payment to the state.Tobinv. Weed, 158 Colo. 430, 407 P.2d 350 (1965).

The county clerks are neither retailers nor vendors within the meaning of C.R.S. 1973, 39-26-102(8), which reads:

"Retailer" or "vendor" means a person doing a retail business, known to the trade and public as such, and selling to the user or consumer, and not for resale.

SUMMARY

Accordingly, it is my informal opinion that the Department of Revenue is without statutory authority to make such payments.

Very truly yours,
                              J.D. MacFARLANE
Attorney General
                              SINCE ITS ISSUANCE THIS
OPINION LETTER WAS ADOPTED
AS A FORMAL OPINION OF THE
ATTORNEY GENERAL BY ATTORNEY
GENERAL J.D. MacFARLANE
TAXATION AND REVENUE
CLERKS

C.R.S. 1973, 39-26-105 C.R.S. 1973, 39-26-102(8)

REVENUE, DEPT. OF Taxation Div.

The Department of Revenue is without authority to make payments to the county clerks for the collection of sales taxes.