This information is provided as a guide through the hearing process. It is not intended to restrict or expand the application of the Colorado Revised Statutes. The Colorado Revised Statutes and regulations thereunder control the hearing process at the Department of Revenue.
A. Scope. A taxpayer may request an administrative hearing by written protest to the Executive Director within thirty days of mailing of a notice of deficiency or rejection of a claim for refund regarding income, estate, passenger-mile, gasoline, special fuel, cigarette, tobacco products, sales, use, severance, value of oil and gas tax, motor vehicle registration tax and fees, and foreign capital depository fees. C.R.S. 39-21-103(2) and 104.
In lieu of a request for hearing, the taxpayer may file a written brief and request that the Executive Director of the Dept. of Revenue reconsider the deficiency without a hearing. C.R.S. 39-21-103(7).
B. Protest. The request for hearing shall set forth the taxpayer's reasons for and the amount of the requested changes in the deficiency or refund rejection. C.R.S. 39-21-103(3).
C. Informal conferences. Upon receipt of a request for hearing, the Conferee's office of the department schedules an informal conference with the taxpayer or his authorized representative. The purpose of this conference is to discuss the procedure to be followed in the administrative hearing, to clarify the relevant issues, facts and law, and, if possible to settle the matters in dispute. The informal conference does not waive the taxpayer's right to an administrative hearing.
D. Scheduling. If one or more issues remain in dispute after the informal conference an administrative (formal) hearing will be scheduled.
- Hearing officer. The hearing will be before the Executive or Deputy Director of the Department of Revenue unless the Director designates someone else to act. If the Deputy Director or another person is designated by the Executive Director, that person performs all the duties described below for the Executive Director, including making the decision.
- Where. The hearing is held at the Department of Revenue in Denver unless the taxpayer is entitled to have the hearing held outside of Denver and so requested in the protest. The taxpayer can request that the hearing be held outside of Denver only if either (1) the deficiency involved is $200 or less or (2) the deficiency involves a sales or use tax. C.R.S. 39-21-103(4)
- Representation. An individual may be represented in person or by an attorney. A corporate taxpayer must be represented by an attorney. The department will be represented by an Assistant Attorney General. A power of attorney is required of attorneys not accompanied by the taxpayer.
- When. The Executive Director/ Deputy Director must notify the taxpayer in writing of the time, date, and place for hearing at least 30 days prior to the date of the hearing. C.R.S. 39-21-103(4)
E. Administrative pre-hearing data certificate. Prior to the hearing, the taxpayer and the Attorney General's office (which represents the Department of Revenue at the hearing and in any subsequent court proceedings) will be asked to submit administrative pre-hearing data certificates.
- When due. The certificates are due by the date specified in the letter requesting them. Extensions may be allowed upon a showing of good cause.
- Purpose. The certificates enable the Executive Director/Deputy Director to become familiar with the important facts and issues in the case prior to the hearing.
- Contents. The certificates may require any or all of the following under appropriate headings:
- A listing of each legal issue to be determined by the Executive Director/Deputy Director
- For each legal issue, the amount of tax, penalty and interest in controversy and the time periods involved, followed by total amounts for all issues.
- A statement of facts, referencing attached exhibits as appropriate.>
- For each legal issue cite the relevant statutes and regulations with copies included as an attachment.
- For each legal issue, the applicable case authority, with copies included as an attachment.
- A listing of witnesses, with brief summaries of the testimony to be presented.
- A position statement : The position statement must be double-spaced, and it must not exceed ten pages. For each issue to be determined, the position statement must state the issue, then argue the position clearly articulating application of relevant facts and law, and referencing the exhibits and attachments, as appropriate. Regardless of the number of issues, the position statement is limited to ten pages in length.
- Copies of all exhibits and attachments. (The respondent's certificate must include all notices, demands, protest letters, and explanations of adjustments in the exhibits)
F. Prior to the hearing.
- Review of certificates. Prior to the hearing, each party should review the certificate filed by the opposing party to become familiar with the opposing party's case (i.e., facts and legal arguments). The opposing party's certificate should be reviewed to determine (1) that any facts claimed as undisputed really are undisputed and (2) that both parties have identified the same issues needing resolution at the hearing.
- Review of witnesses and exhibits. Testimony should be reviewed with each of the witnesses so that the witnesses will know what to expect at the hearing and the taxpayer's representative will know what to expect to hear as testimony at the hearing. The taxpayer's representative must review each of the exhibits that will be introduced at the hearing, including those which the opposing party is planning to introduce, so that he or she is familiar with the contents and the significance of each exhibit.
- Position statement. A position statement must be prepared on all the legal issues in the case and included in the pre-hearing data certificate (See E. 3. g.).
- Briefs are not required but may be requested by the hearing officer before issuing a final determination.
- In lieu of a request for hearing, the taxpayer may elect to file a written brief. C.R.S. 39-21-103(7) (See A.Scope.).
- Burden of proof. The burden of proof is on the taxpayer. Therefore, the taxpayer's representative must introduce sufficient evidence at the hearing to establish each essential element of the case.
G. What happens at the hearing? "At the hearing, the taxpayer may assert any facts, make any arguments, and file any briefs and affidavits he believes pertinent to the case." C.R.S. 39-21-103(6).
- Taxpayer's opening statement. The taxpayer presents his or her case first. The taxpayer's representative presents the opening argument which summarizes the important facts and legal issues and sets the stage for what is to follow.
- Department's opening statement. The attorney for the Department of Revenue usually waits to present his or her opening statement until the taxpayer's case has been presented.
- Taxpayer's witnesses. The taxpayer's representative calls his or her witnesses. Each witness swears that his or her testimony will be truthful. After direct examination by the taxpayer's representative, opposing counsel has the opportunity to cross-examine each witness.
- Taxpayer's exhibits. The taxpayer's representative must introduce each exhibit into evidence. A witness may need to explain the contents of the various exhibits or authenticate them.
- Objections. Throughout the proceeding, either party can make objections to the questions being asked, the testimony being given, the admissibility or relevancy of various evidence, etc. The taxpayer's representative should be familiar with the Colorado Rules of Evidence and be prepared to make and respond to objections based thereon.
- Taxpayer's burden of proof. When the taxpayer's representative believes that sufficient evidence has been introduced to establish each essential element of the case, the taxpayer's representative so indicates, and the attorney for the Department of Revenue has the opportunity to present the Department's opening statement (See G.8.). The attorney for the Department may or may not present any evidence. If the attorney for the Department decides to present no evidence, the taxpayer will not be permitted to introduce further evidence. If instead, evidence is introduced by the attorney for the Department, the taxpayer will have an opportunity to introduce more evidence, but that additional evidence will be limited to rebuttal (i.e., only testimony and exhibits which rebut the testimony and exhibits presented on behalf of the Department will be permitted). Therefore, the taxpayer must prove his or her case before the Department of Revenue.
- Motions. Motions, like objections, are permitted throughout the proceedings. After the taxpayer's evidence has been presented, the attorney for the Department of Revenue will frequently move for a decision in favor of the Department on the basis that the taxpayer failed to carry his or her burden of proof.
- Department's opening statement. If the attorney for the Department of Revenue decides to present evidence, an opening statement is usually made after all the taxpayer's evidence has been presented. In addition to summarizing the Department of Revenue's case, the attorney for the Department can then comment on any weaknesses in the taxpayer's case.
- Department's witnesses and exhibits. The attorney representing the Department of Revenue may call witnesses and introduce.
- Rebuttal. After the Department presents its case, the taxpayer's representative can recall witnesses, call additional witnesses, and/or introduce additional exhibits to rebut the Department's case.
- Closing arguments. Closing arguments, which permit each party to present legal arguments and relate the facts to those arguments, are then presented. The arguments should be well organized, well researched, and persuasive. The taxpayer's representative presents his or her arguments first, then the Department's attorney presents it's arguments, and the taxpayer's representative has a chance for a brief rebuttal.
- Atmosphere. The atmosphere at the hearing is not as formal as a courtroom, but the format is clearly that of a hearing.
- Record. The proceedings are usually recorded on disc. The taxpayer may request a copy of the disc or ask permission to transcribe the disc.
- Not public. These hearings are not open to the public.
H. Decision -- the final determination. Based upon the evidence and arguments or the brief and written materials submitted in lieu of a hearing (C.R.S. 39-21-103(7)), the Executive Director/Deputy Director makes a final determination within sixty days (plus extensions) if necessary 39-21-103(8). The Executive Director sends the taxpayer a notice of final determination by certified mail. The Executive Director can modify the tax, penalties, and interest disputed at the hearing and can even approve a refund. See C.R.S. 39-21-103(8). If the taxpayer fails to request a hearing or submit a brief in lieu of a hearing within the requisite thirty-day period, the Executive Director must send the notice of final determination by first-class mail accompanied by notice and demand for payment shortly after the expiration of that period.
I. Statute of limitations. Once the Department of Revenue issues a "written proposed adjustment of the tax liability" prior to the expiration of the statute of limitations (including any extensions), the period is extended until one year after a final determination or assessment is made. C.R.S. 39-21-107(1) and (2) (as amended in 1983 by S.B. 324). Therefore, the period for assessment and collection will not expire while the taxpayer is awaiting a final determination.
- When. The taxpayer has thirty days after the mailing of the final determination by the Executive Director/Deputy Director (as a result of a hearing, a hearing by brief, no response by the taxpayer to either a notice of deficiency, or a rejection of a claim for refund) to appeal that determination to district court. C.R.S. 39-21-105(1). If the taxpayer does not appeal, payment of the tax, penalties, and interest must be made within thirty days of the mailing of the notice of final determination and notice and demand for payment. In addition, if the taxpayer fails to appeal within the thirty-day period the regulations provide that the final determination by the Executive Director/Deputy Director becomes final and is not subject to judicial review. Reg. 39-21-103(8).
- How. The taxpayer files a notice of appeal, which includes a written description of the portions of the final determination being appealed and the grounds for the appeal, together with a copy of the notice of final determination. C.R.S. 39-21-105(3). The notice of appeal must conform to pleadings under the Colorado Rules of Civil Procedure. Reg. (39)21-105(3).
- Where. The notice of appeal is filed with the clerk of the district court of the county where the taxpayer resides or has his or her principal place of business. If the taxpayer has neither a residence nor a principal place of business in Colorado, the notice of appeal is filed in Denver district court. C.R.S. 39-21-105(2)(a).
- Bond or payment. Within fifteen days after filing of the notice of appeal, the taxpayer must either (1) file with the district court a bond for twice the amount of the taxes, penalties, and interest in the final determination which are contested on appeal or (2) deposit the disputed amount with the Executive Director of the Department of Revenue in lieu of posting a bond. C.R.S. 39-21-105(4). If the amount is deposited, no further interest will accrue on the deficiency during the pendency of the appeal. Failure to post the bond or deposit the disputed amount on time will result in dismissal of the appeal. Reed v. Dolan, 195 Colo. 193, 577 P.2d 284 (1978).
- Trial de novo. The district court tries the case de novo so both the taxpayer and the Department have the opportunity to present any witnesses, exhibits, briefs, and arguments they choose. C.R.S. 39-21-105(2)(b). The district court reviews and decides anew all questions of law and fact in the case. This de novo review differs from the judicial review of certain other administrative decisions for which the court merely reviews the administrative record and overturns the administrative decision only if it is found to be arbitrary or capricious or the findings of fact are found to be clearly erroneous or unsupported by substantial evidence. See, C.R.S. 24-4-106.
- Burden of proof. The taxpayer generally has the burden of proof with respect to the issues raised in the notice of appeal. There are at least two exceptions. First, the Department of Revenue has the burden of proving the taxpayer guilty of fraud with intent to evade tax, and second, the Department must establish that a petitioner is liable for a tax as a transferee of property of a taxpayer. See, C.R.S. 39-21-105(2)(b).
- Decision. The district court may affirm, modify, or reverse the determination of the Executive Director. C.R.S. 39-21-105(2)(b). The district court's decision on the appeal shall be entered as a judgment, as in other civil cases, against the taxpayer or against the Executive Director, as the case may be. C.R.S. 39-21-105(6).
- Further appeals. If either the taxpayer or the Department of Revenue is not satisfied with the decision by the district court, either or both may appeal further. The district court's decision is reviewable by the Colorado Supreme Court or the Colorado Court of Appeals as is otherwise provided by law. C.R.S. 39-21-105(7).
- Finality. After all appeals are exhausted, the taxpayer must pay any amount that the court determines is owed in order to secure a release of the bond. If the taxpayer deposited funds with the Executive Director in lieu of posting a bond, funds will be retained by the Executive Director to the extent provided by the Court's decision, and any excess will be returned to the taxpayer, together with interest. The taxpayer does not have to file a claim for refund in order to be repaid any excess amount deposited as determined by the court. See, C.R.S. 39-21-105(4).