City and County of Denver District Court No. 11CV2642 Honorable Herbert L. Stern, III, Judge
Edward Dale Parrish, LLC, Dale Parrish, James W. Noland, Golden, Colorado, for Plaintiff-Appellant
Cynthia H. Coffman, Attorney General, Brendon C. Reese, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, Creager Mercantile Company, Inc. (Creager), appeals the judgment of the district court affirming the Colorado Department of Revenue's (DOR's) final determination that Creager is liable for certain taxes on tobacco products. We reverse and remand for entry of judgment in favor of Creager.
¶2 Creager is a distributor of groceries, tobacco, and other products to convenience stores. In 2003, Creager began distributing Blunt Wraps, which are rolling papers consumers can use to roll their own cigars or cigarettes. Blunt Wraps are made from homogenized tobacco leaves and contain between thirty and forty-eight percent tobacco.
¶3 DOR is responsible for collecting taxes on tobacco products, which are defined in section 39-28.5-101(5), C.R.S. 2014. DOR audited Creager for the 2001-2003 tax periods and levied no tax assessment related to Blunt Wraps. In December 2006, DOR issued a notice (known as an "FYI") advising taxpayers that, despite any prior confusion on the issue, it now considered products that contain any amount of tobacco to be "tobacco products" within the meaning of the statute. In early 2007, DOR audited Creager for the 2004-2006 tax periods. Because Blunt Wraps contain some tobacco, DOR issued Creager a tax assessment related to them, as well as a notice of deficiency that included penalties and interest for nonpayment.
¶4 Creager disputed the results of the audit. After a hearing, DOR issued a final determination that Blunt Wraps are "tobacco products" within the meaning of the statute, and affirmed the tax assessment, penalties, and interest. Creager appealed to the district court, which conducted a trial de novo. The district court affirmed the tax assessment, but reversed the imposition of penalties and interest. Creager now appeals the district court's judgment, as well as its subsequent order denying post-trial relief.
¶5 On appeal, Creager claims the district court erred in holding that (1) Blunt Wraps are "tobacco products" within the meaning of section 39-28.5-101(5); (2) Creager is liable for the 2004-2006 tax assessments; and (3) Creager is liable for any tax assessment related to Blunt Wraps prior to its judgment in 2013. Because we agree with Creager's first claim, we need not address the remaining two.
¶6 When a taxpayer appeals a final determination of the DOR, the district court tries the case de novo. Noble Energy, Inc. v. Colo. Dep't of Revenue, 232 P.3d 293, 296 (Colo.App. 2010). In reviewing the district court's decision, we defer to its findings of fact unless they are clearly erroneous and not supported by the record. Id. We review its application of law, including any questions of statutory construction, de novo. Id.; Qwest Corp. v. City of Northglenn, 2014 COA 55, ¶¶ 8-9.
¶7 In our de novo review, we give deference to a statute's interpretation by the agency charged with its enforcement. Markus v. Brohl, 2014 COA 146, ¶ 44. Ultimately, however, the agency's view of the law is not binding on the reviewing court. Id.
¶8 We are required here to interpret and apply section 39-28.5-101(5). When we interpret a statute, our goal is to give effect to the intent of the General Assembly. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). We begin with the statutory language, giving words their plain and ordinary meanings, and taking into account their context within the statute as a whole. Id. at 1088-89. If the language is clear, we apply it as written. Id. If it is ambiguous, we may resort to rules of statutory interpretation to determine the General Assembly's ...