Qwest Corp. v. City of Northglenn

Opinion by

JUDGE FOX

11 Plaintiff, Qwest Corporation, appeals the judgment in favor of defendants, City of Northglenn (Northglenn) and City of Thornton (Thornton). Qwest contends that it is not liable to Thornton for unpaid use taxes because it erroneously paid the use taxes in question to Northglenn instead. Because the statute of limitations in § 89-26-210, C.R.S. 2013, precludes Thornton from collecting the taxes erroneously paid to Northglenn, and because Qwest remains liable to Thornton for its tax deficiency under § 29-2-106.1, C.R.S. 2018, we affirm.

I. Background and Procedural History

{2 The facts of this case are undisputed. Qwest, a telephone services provider; has a facility in Thornton, a home rule municipality. Under Thornton's tax code, Qwest must pay use taxes on new purchases delivered to the Thornton facility. Northglenn, an adjacent home rule municipality, has a similar tax ordinance.

13 Qwest's Thornton facility is across the street from Northglenn. Between 2002 and 2005, an error in Qwest's computer software recognized the Thornton facility as being in Northglenn. As a result, Qwest mistakenly paid to Northglenn use taxes it owed to Thornton during that time.

T4 The record indicates that Qwest may have known about the error as early as 2002. However, it made no effort to correct its mistake until 2005, when it started paying taxes to the correct municipality.

T5 In 2008, Thornton conducted an audit of Qwest for the years 2002 through 2008 and discovered that Qwest had failed to pay sales and use taxes to Thornton from 2002 through 2005. After Thornton notified Qwest of the deficiency, Thornton and Qwest entered into numerous agreements extending the three-year limitations period under § 39-26-210 for collecting tax assessments and requesting refunds applicable to Qwest's tax liability to Thornton. Qwest and Thornton also agreed to the method Thornton used to estimate the amount of use tax Qwest owed. Thornton later issued Qwest a sales and use tax assessment totaling $65,862.19 for the period 2002 through 2005.

T6 In 2010, pursuant to § 29-2-106.1(8), Qwest requested a hearing concerning its use tax liability from 2002 to 2005 by the Colorado Department of Revenue (the Department) and joined Northglenn as a respondent. This was the first time that Qwest notified Northglenn that the municipality had received tax payments in error. At the conclusion of the hearing, the Department concluded that any action against Northglenn to collect taxes for the 2002 through 2005 period was time barred, and that Qwest remained liable to Thornton.

T7 Qwest appealed to the district court and moved for summary judgment. The district court affirmed the Department's decision. As relevant here, the district court concluded that §§ 29-2-106.1(5) and (6) did not relieve Qwest of its tax liability to Thornton for that period because the statute of limitations in § 89-26-210 relieved North-glenn of any duty to forward Qwest's tax payments to Thornton.

IIL. Standard of Review

T8 When a taxpayer appeals the final determination of the Department, the district court examines the case de novo. Walgreen Co. v. Charnes, 819 P.2d 1039, 1047 (Colo.1991); Noble Energy, Inc. v. Colo. Dep't of Revenue, 232 P.3d 293, 295-96 (Colo.App.2010); see also § 89-21-105(2)(b), C.R.S. 2018. In reviewing the decision of the district court, we defer to the district court's factual findings, and we will disturb them only if they are clearly erroneous and not supported by the record. Noble Energy, 232 P.3d at 296; see also § 89-21-105(7). We review the district court's application of law, including its grant of summary judgment, de novo. W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo.2002); Noble Energy, Inc., 232 P.3d at 296.

T9 Statutory construction also presents a question of law that we review de novo. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo.2011). When construing a statute, - we give effect to the intent of the General Assembly. Id. We construe the entire statutory scheme to give consistent, harmonious, and sensible effect to all its parts. Id. If the statutory language is clear, we apply its plain and ordinary meaning, and we avoid interpretations that could lead to an absurd result. Id.

III. Qwest's Tax Liability

{10 Qwest contends that, under §§ 29-2-106.1(5)-(6), it is immune from liability for use taxes owed to Thornton from 2002 to 2005 because it erroneously paid those taxes to Northglenn. : According to Qwest, the district court erred in concluding that the limitations period in § 89-26-210 relieves Northglenn of any obligation to forward the erroneously paid taxes to Thornton. We disagree. .

A. Tax Dispute Resolution

111 Section 29-2-106.1 establishes a process for local governments to collect unpaid sales and use taxes and for taxpayers to claim refunds on overpaid sales and use taxes. This statute allows a taxpayer owing taxes or claiming a refund to request a hearing with the appropriate local government, and, once the taxpayer exhausts all local remedies, to request a hearing before the Department. §§ 29-2-106.1(2), (8)(a); MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710, 717 (Colo.2010).

112 When a taxpayer asserts, as Qwest does here, that it erroneously paid use taxes to another local government, it must join that local government as a party to the hearing before the Department. § 29-2-106.1(5). The taxpayer does not need to file an additional claim for a refund for the allegedly erroneous tax payment. [d.

$13 Under this statutory scheme, if the Department determines that the disputed tax was paid, but to the wrong local government, then the taxpayer is relieved of the tax due, and the government that received the payment in error must forward that payment to the appropriate local government. § 29-2-106.1(6). However, if the amount paid is less than the tax due, the taxpayer is liable for the deficiency. Id. If, on the other hand, the amount paid exceeds the tax due, the government must refund the overpayment to the taxpayer. Id.

B. Statute of Limitations

114 Colorado's general use tax statute limits the time to collect taxes to three years after the date the tax is due. § 89-26-210. Local government tax ordinances incorporate the statute of limitations of the general sales and use tax statutes. See § 29-2-106(1), C.R.8.2013 ("Unless otherwise provided in this article, the provisions of article 26 of title 39, C.R.S., shall govern the collection, administration, and enforcement of sales taxes authorized under this article."); § 29-2-106(8) ("Each home rule city,; town, and city and county shall follow, and conform its ordinances where necessary to, the statute of limitations applicable to the enforcement of state sales and use tax collections [and] the statute of limitations applicable to refunds of state sales and use taxes[.]").¹

T 15 The parties disagree as to whether the statute of limitations set forth in § 89-26-210 applies to Qwest's attempt to make Northglenn forward the erroneous tax payments to Thornton. They agree that, if it applies, the limitations period has expired. We conclude that it applies.

116 The very language of the statute provides that a three-year statute of limitations applies to any action to collect use taxes:

The taxes for any period, together with the interest thereon and penalties with respect thereto ... shall not be assessed ... or suit for collection be instituted, nor any other action to collect the same be commenced, more than three years after the date on which the tax was or is payable[.]

§ 39-26-210 (emphasis added). "'Any' action means 'all' actions, and therefore includes equitable as well as legal actions." City of Colorado Springs v. Tipton, 910 P.2d 75, 77 (Colo.App.1995) (citation omitted). "[Aln 'assessment of tax' consists merely of an ascertdinment of the amount due." F.W. Woolworth Co. v. State Dep't of Revenue, 699 P.2d 1, 3 (Colo.App.1984). Section 39-26-210 does not distinguish between actions against the taxpayer and actions against other persons or entities. Tipton, 910 P.2d at 77. Thus, we hold that this statute of limitations applies to any attempts by Qwest or Thornton to recover taxes paid to Northglenn. See id. (holding that the taxing statute of limitations applies to an action by a city to recover taxes erroneously paid to the state); F.W. Woolworth Co., 699 P.2d at 3 (holding that the taxing statute of limitations applies to an action by the state to collect excess sales tax from a retailer).

17 We disagree with the dissent's characterization of § 29-2-106.1 as providing a defense for taxpayers. On the contrary, the statute allows the taxpayer to seek a legal remedy-the transfer of its erroneous tax payment-when it believes it has paid taxes to the wrong jurisdiction. § 29-2-106.1(5) ("'The taxpayer need not file a claim for refund in order to pursue the remedy provided by this subsection (5)."). Thus, the taxpayer is not excused from complying with the statute of limitations in § 89-26-210.

(18 Qwest was aware that a three-year statute of limitations applied to its use tax obligations. In fact, Qwest and Thornton had agreements extending the statute of limitations as to Qwest's obligations to Thornton, but Northglenn did not participate in those agreements. Qwest did not join Northglenn to this action until 2010, about eight years after Qwest discovered its own error and years after Qwest began negotiating time extensions with Thornton.²

119 According to Qwest, it is relieved of tax liability because it paid the use taxes it owed; it simply paid them to the wrong local government. See § 29-2-106.1(5) (If the Department "determines that the disputed tax was paid, but to the wrong local government, then the taxpayer shall be relieved of the tax due[.]"). However, we conclude that Qwest is relieved of liability only if Thornton could collect the erroneous payments from North-glenn. See § 29-2-106.1(6) (instructing local governments to forward any erroneously received tax payments to the appropriate local government). Because Qwest did not join Northglenn to the litigation until it was too late for Thornton to collect the erroneous payment from Northglenn, Qwest cannot require Northglenn to forward its erroneous tax payment to Thornton. See § 89-26-210.

T20 Qwest provides no authority to support its position that the limitations period does not apply here, and we have found none. Perhaps there is no such authority because the local government tax ordinances clearly incorporate the statute of limitations of the general sales and use tax statutes. See §§ 29-2-106(1) and (8).

1 21 Even though § 29-2-106.1 is silent on a limitations period, § 29-2-106(8) was enacted as part of the same bill. See Ch. 244, sees. 2-8, §§ 29-2-106(8), 29-2-106.1, 1985 Colo. Sess. Laws 1081-85. Accordingly, the General Assembly intended for the two see-tions to be construed together and harmoniously. See Reg'l Transp. Dist. v. Outdoor Sys., Inc., 34 P.3d 408, 414 (Colo.2001) ("When construing a statute, we attempt to give effect to the statutory scheme as a whole.").

122 There are sound reasons for limitations periods, including promoting justice, avoiding unnecessary delay, and preventing the litigation of stale claims. See Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882, 886 (Colo.2010); Morrison v. Goff. 91 P.3d 1050, 1052 (Colo.2004). It would not have been unreasonable, under the cireumstances here, for Northglenn to have expended the taxes collected from 2002 to 2005 without keeping a reserve to account for taxpayer error brought to its attention well beyond the limitations period. See, eg., Coquina Oil Corp. v. Larimer Cnty. Bd. of Equalization, 770 P.2d 1196, 1199 (Colo.1989) (concluding that the term "clerical error" in § 39-10-114(1)(a)-a tax abatement provision-did not encompass error made by the taxpayer and relied upon by the taxing authority); Armstrong v. Driscoll Constr. Co., 107 Colo. 218, 222, 110 P.2d 651, 652-53 (1941) (con-eluding that the limitation period for filing tax refunds "undoubtedly was a legislative attempt to prevent the filing of stale claims"); E.A. Stephens & Co. v. Bd. of Equalization, 104 Colo. 556, 561, 92 P.2d 732, 734 (1939) (denying a claim for refund where permitting recovery "would endanger the entire tax structure of the state and lead to a multiplicity of suits for refund of taxes"); see also § 89-26-703(2)(d), C.R.98.2013 (statute of limitations for sales and use tax disputes and refunds).

123 Qwest effectively claims to be exempt from the statute of limitations and taxpayer burden, arguing that Northglenn bears the burden of correcting its mistake, even though Qwest failed to notify North-glenn of the error until eight years after the first erroneous payment. We must "'presume that taxation is the rule and exemption from taxation is the exception."" Noble Energy, Inc., 232 P.3d at 296 (quoting Telluride Resort & Spa, L.P. v. Colo. Dep't of Revenue, 40 P.3d 1260, 1264 (Colo.2002)).

24 Construing the applicable statutes to give consistent, harmonious, and sensible effect to all of their parts, see Denver Post, 255 P.3d at 1088, we conclude that Qwest is liable to Thornton for the use taxes it owes (but has failed to pay) to the city. See § 29-2-106.1(6).

1 25 Northglenn is not required to forward the tax payment to Thornton, and Thornton has not received Qwest's use taxes. Qwest must therefore pay the deficiency. See § 29-2-106.1(6) ("If the amount [of taxes] paid is found to be less than the taxes due, then the taxpayer shall pay the deficien-ey[.]"). .

126 Pursuant to § 389-26-210, Northglenn need not refund the tax payments to Qwest, nor forward the funds to Thornton under § 29-2-106.1(6). We affirm the district court's determination that Qwest remains liable to Thornton for the use tax deficiency for 2002-2005.

IV. Taxes Owed by Northglenn to Thornton

127 Qwest next contends that the district court erred in failing to determine how much of Qwest's erroneous tax payment North-glenn must forward to Thornton. Because we conclude that Qwest, and not Northglenn, is responsible for the taxes owed to Thornton, we need not address this contention. See Cherry Creek Gun Club, Inc., v. Huddleston, 119 P.3d 592, 596 (Colo.App.2005) (when one issue is dispositive, the court need not address additional arguments raised by appellants).

V. Conclusion

T 28 The judgment is affirmed.

JUDGE NAVARRO concurs. JUDGE J. JONES dissents.

1 . The district court also applied Northglenn's three-year statute of limitations for tax assessments. See Northglenn, Colo., Code § 5-2-25(a)(1) (2013). Qwest argues that the municipal code does not apply here because tax dispute resolution is a matter of statewide concern. § 29-2-106.1(1), C.R.S.2013; MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710, 717 (Colo.2010). Because the periods are the same, we need not resolve that issue.

2 . The trial court aptly noted that, having discovered its own mistake in 2002, Qwest was in the best position to realize and correct the computer error that resulted in payment of sales and use taxes to Northglenn instead of Thornton. See Noble Energy, 232 P.3d at 296 (we defer to the district court's factual findings if supported by the record).