Deluxe Theatres, Inc. v. City of Englewood

• Court: Colorado Supreme Court
• Writing for the Court: HODGES
• Citation: Deluxe Theatres, Inc. v. City of Englewood, 596 P.2d 771, 198 Colo. 85 (Colo. 1979)
• Decision Date: 25 June 1979
• Docket Number: No. 28252,28252
• Parties: DELUXE THEATRES, INC., a Colorado Corporation, Plaintiff-Appellant, v. The CITY OF ENGLEWOOD, Colorado, a Municipal Corporation, Defendant-Appellee.

Page 771

596 P.2d 771

198 Colo. 85

DELUXE THEATRES, INC., a Colorado Corporation, Plaintiff-Appellant, v. The CITY OF ENGLEWOOD, Colorado, a Municipal Corporation Defendant-Appellee.

No. 28252.

Supreme Court of Colorado, En Banc.

June 25, 1979.

C. Henry Toy, Lakewood, for plaintiff-appellant.

Bernard V. Berardini, City Atty., Rick DeWitt, Asst. City Atty., Englewood, for defendant-appellee.

HODGES, Chief Justice.

The appellant, Deluxe Theatres, Inc., brought an action in the trial court to have the City of Englewood's imposition of a three percent admissions tax declared void. Englewood, a home rule city, levied the tax on the price paid for admission to any public place or event. The tax is to be paid by the person paying the admission and collected and remitted to the city by the person who offers the entertainment. The trial court granted a summary judgment in favor of the city. We affirm.

On appeal, the appellant contends that because the admissions tax is not a tax on the transfer of tangible or corporeal property, it is substantially different from the statewide sales and use tax, section 29-2-101 Et seq., C.R.S.1973, and therefore violates the uniformity clause of Article X, section 3 of the Colorado Constitution. We find no merit in the appellant's argument.

The uniformity clause in Article X, section 3 states in pertinent part:

"All taxes shall be uniform upon each of the various classes of real and personal property located within the territorial limits of the authority levying the tax . . . ."

We have repeatedly held that this constitutional provision refers solely to a direct or ad valorem tax upon property and does not apply to an excise tax imposed on privileges and occupations. Jackson v. City of Glenwood Springs, 122 Colo. 323, 221 P.2d 1083 (1950); California Co. v. State, 141 Colo. 288, 348 P.2d 382 (1959); Hughes v. State, 97 Colo. 279, 49 P.2d 1009 (1935). The Englewood admissions tax is an excise tax levied directly by the city, without assessment, and is imposed without regard to the nature or value of assets. As such, it constitutes an excise tax and not an ad valorem tax and is therefore not subject to the constitutional restriction of Article X, section 3. Walker v. Bedford, 93 Colo. 400, 26 P.2d 1051 (1933).

The only question remaining is whether or not Englewood, as a home rule city, is authorized by Article XX, section 6 of the Colorado Constitution to levy an admissions tax.

Article XX, section 6 grants home...