DEPARTMENT OF REVENUE Taxpayer Service Division - Tax Group RETAIL MARIJUANA TAX 1 CCR 201-18 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ DEFINITIONS 39-28.8-101 With respect to rules promulgated under Article 28.8 of Title 39, the following terms have the following meanings:

(1) Unless the context clearly requires otherwise, terms defined by section 12-43.4-103, C.R.S. or in Rule R 103 of 1 CCR 212-2, the Marijuana Enforcement Division’s rules related to the Colorado Retail Marijuana Code, shall have the same meanings in these rules as therein defined.

(2) “Affiliated Marijuana Business Licensees” shall have the same meaning as defined in subsection 39-28.8-101(1), C.R.S.

(3) “Average Market Rate” shall have the same meaning as defined in subsection 39-28.8-101(1.5), C.R.S., and shall be calculated pursuant to Department Rule 39-28.8-302(4) in the following categories:

(a) Bud (b) Trim (c) Immature Plant (d) Wet Whole Plant (e) Seed (f) Contaminated Product Allocated for Extraction (4) “Bud” shall have the same meaning as the product of the “Flower” or “Flowering” stage as set forth by Rule R 103 of 1 CCR 212-2 including the actual flower, except that the term “Bud” shall not include any Contaminated Product Allocated for Extraction.

(5) “Contaminated Product Allocated for Extraction” means any Bud or Trim that failed microbial testing and is transferred to a retail marijuana products manufacturing facility pursuant to Rule R 1507(B.1)(2) of 1 CCR 212-2.

(6) “Immature Plant” shall have the same meaning as set forth by Rule R 103 of 1 CCR 212-2.

(7) “Inventory Tracking System” shall have the same meaning as set forth by Rule R 103 of 1 CCR 212-2.

(8) “Marijuana” means Medical Marijuana or Retail Marijuana.

(9) “Retail Marijuana” shall have the same meaning as set forth by Rule R 103 of 1 CCR 212-2.

(10) “Retail Marijuana Concentrate” shall have the same meaning as “Retail Marijuana Concentrate” as set forth by Rule R 103 of 1 CCR 212-2.

(11) “Retail Marijuana Cultivation Facility” shall have the same meaning as set forth by Rule R 103 of 1 CCR 212-2.

(12) “Retail Marijuana Excise Tax” means excise tax due under Article 28.8 of Title 39, C.R.S.

(13) “Retail Marijuana Excise Tax Return” means the excise tax return upon which all sales or Transfers of retail marijuana subject to the excise tax and the amount of Retail Marijuana Excise Tax is reported.

(14) “Retail Marijuana Plant” means a mature plant of the genus cannabis, whether growing or harvested, that is cultivated by a licensed Retail Marijuana Cultivation Facility.

(15) “Retail Marijuana Sales Tax” means sales tax collected and due under Article 28.8 of Title 39, C.R.S.

(16) “Retail Marijuana Sales Tax Return” means the sales tax return upon which all sales of Retail Marijuana Products and the amount of state and local Retail Marijuana Sales Tax is reported.

(17) “Retail Sales Tax” means the sales tax collected and due under part 1 of Article 26 of Title 39, C.R.S.

(18) “Test period” means the period of time used to calculate the Average Market Rate. The Test Period shall be each November 1st to the subsequent January 31st, each February 1st to the subsequent April 30th, each May 1st to the subsequent July 31st, and each August 1st to the subsequent October 31st.

(19) “Transfer” means to grant, convey, hand over, assign, sell, exchange, or barter, in any manner or by any means, with or without consideration, any Retail Marijuana or Retail Marijuana Product from one licensee to another or to a consumer. A Transfer includes the movement of Retail Marijuana or Retail Marijuana Product from one licensed premises to another, even if both premises are contiguous, and even if both premises are owned by a single entity or individual or group of individuals and also includes a virtual transfer that is reflected on the Inventory Tracking System, even if no physical movement of the Retail Marijuana occurs.

(20) “Trim” means any part of a Retail Marijuana Plant other than the Bud or Wet Whole Plant that is sold or Transferred to a Retail Marijuana Store or a Retail Marijuana Products Manufacturing Facility, except that the term “Trim” shall not include any Contaminated Product Allocated for Extraction. Trim includes “sweet leaf” or “sugar leaf”.

(21) “Unaffiliated Marijuana Business Licensees” shall mean marijuana business licensees that are not owned or controlled by the same or related interests, where “related interests” includes individuals who are related by blood or marriage or entities that are directly or indirectly controlled by an entity or individual or related individuals.

(22) “Unprocessed Retail Marijuana” means all Retail Marijuana that is first sold or Transferred by a Retail Marijuana Cultivation Facility to a Retail Marijuana Store or Retail Marijuana Products Manufacturing Facility, even though it may have gone through some processing, and even though it may be subject to further processing by another licensee.

(23) “Wet Whole Plant” means a Retail Marijuana Plant that is cut off just above the roots and is not trimmed, dried, or cured. The weight of the Wet Whole Plant includes all bud, leaves, stems, and stalk. The Wet Whole Plant must be weighed within 2 hours of the plant being harvested. The plant must not undergo any further processing prior to being weighed, and tax must be paid on the weight of the entire unprocessed plant.

RETAIL MARIJUANA SALES TAX PROCEDURES 39-28.8-201 (1) The Department’s procedures governing Retail Sales Tax described in the rules promulgated under Articles 21 and 26 of Title 39, C.R.S. shall, to the extent not inconsistent with the provisions of Article 28.8 of Title 39, C.R.S. and the rules promulgated pursuant thereto, likewise govern the procedures with respect to the collection, reporting, and remittance of Retail Marijuana Sales Tax.

(2) Any vendor making sales of Retail Marijuana at a Retail Marijuana Store shall file a Retail Marijuana Sales Tax Return for Retail Marijuana Sales Tax collected.

(a) The Retail Marijuana Sales Tax Return shall be filed electronically by all such vendors. The remittance of the Retail Marijuana Sales Tax shall be made in accordance with procedures prescribed on the Department’s website or on forms published by the Department.

(b) If any vendor making sales of Retail Marijuana is unable to file Retail Marijuana Sales Tax Returns electronically, such vendor may apply to the Department for a waiver of electronic filing requirements. The Department may grant such a waiver upon a showing of good cause.

SALES TAX ON RETAIL MARIJUANA AND RETAIL MARIJUANA PRODUCT 39-28.8-202 Retail Marijuana Sales Tax is imposed on the full purchase price of all Retail Marijuana and Retail Marijuana Product. The sale of any product that contains any amount of Retail Marijuana or any derivative thereof is subject to the Retail Marijuana Sales Tax on the full purchase price of such product. RETAIL MARIJUANA EXCISE TAX 39-28.8-302 (1) Incidence of Tax. The excise tax is imposed upon the Retail Marijuana Cultivation Facility, which shall pay the excise tax to the Department on the first sale or Transfer of Retail Marijuana to a Retail Marijuana Store or a Retail Marijuana Products Manufacturing Facility. No Colorado Retail Marijuana Excise Tax is imposed on the sale or Transfer of Retail Marijuana from one Retail Marijuana Cultivation Facility to another Retail Marijuana Cultivation Facility. In such case, the Colorado Retail Marijuana Excise Tax will be imposed on the subsequent sale or Transfer of the Retail Marijuana to a Retail Marijuana Store or a Retail Marijuana Products Manufacturing Facility.

(2) Local Incidence of Tax. See §§ 29-2-114 and 32-1-1004, C.R.S. and the applicable local ordinance or resolution for information about the application of any local excise taxes to retail marijuana sales and Transfers.

(3) Exempt Sales and Transfers. No excise tax is imposed on the sale or Transfer of unprocessed medical marijuana by a marijuana cultivation facility to a medical marijuana center. The Transfer of Retail Marijuana to a testing facility for testing purposes is exempt from Retail Marijuana Excise Tax so long as the marijuana is destroyed by the Retail Marijuana Testing Facility during or following the testing.

(4) Inventory Tracking System. When a sale or Transfer is entered into the Inventory Tracking System, all sales or Transfers between Unaffiliated Marijuana Business Licensees must be entered in a manner that allows the price to be recorded in such system. When entering the price, the actual price charged, exclusive of tax, must be recorded in such system.

(5) Calculation and Payment of Tax.

(a) The method for calculating Colorado excise tax depends upon whether the first sale or Transfer of Retail Marijuana from a Retail Marijuana Cultivation Facility to a Retail Marijuana Store or a Retail Marijuana Products Manufacturing Facility is between Unaffiliated Marijuana Business Licensees or Affiliated Marijuana Business Licensees.

1. (i) Unaffiliated Marijuana Business Licensees –
   1. (A) If the first sale or Transfer is between Unaffiliated Marijuana Business Licensees, the excise tax is calculated based on the contract price of the Retail Marijuana sold or Transferred.
   2. (B) If no contract price is established at the time of the first sale or Transfer the excise tax is calculated based on the Average Market Rate of the Retail Marijuana sold or Transferred. Examples of such sales or Transfers include:
      1. (I) a temporary Transfer, that does not constitute a sale, of Retail Marijuana from a Retail Marijuana Cultivation Facility to an unaffiliated Retail Marijuana Products Manufacturing Facility that will process or manufacture the Retail Marijuana before returning it to the Retail Marijuana Cultivation Facility or to a Retail Marijuana Store affiliated with the Retail Marijuana Cultivation Facility; or (II) a Transfer of Retail Marijuana from a Retail Marijuana Cultivation Facility to an unaffiliated Retail Marijuana Store for which a price is not established at the time of Transfer, but instead depends upon the revenue generated from the subsequent sale of the Retail Marijuana to the end consumer.
2. (ii) Affiliated Marijuana Business Licensees - If the first sale or Transfer is between Affiliated Marijuana Business Licensees, the excise tax is calculated based on the Average Market Rate of the Retail Marijuana sold or Transferred.

(b) Contract Price

1. (i) The contract price is the invoice price charged by a Retail Marijuana Cultivation Facility to each licensed purchaser for each sale or Transfer of Unprocessed Retail Marijuana, exclusive of any tax that is included in the written invoice price, and exclusive of any discount or other reduction. In the case of multiple invoices reflecting multiple prices for the same transaction, the contract price used to calculate the tax is the highest such price. For the purpose of this paragraph (4)(b)(i), the invoice price charged includes all consideration the seller receives from the buyer in whatever form and regardless of the time of receipt.

(c) Calculation of Average Market Rate.

1. (i) The Department will calculate the Average Market Rate using reported sales of each category during the Test Period. The Department will determine the best methodology to arrive at the Average Market Rate. The Department may, from time to time, change its method of calculating the Average Market Rate if, in the judgment of the Department, such change is necessary to arrive at the most accurate Average Market Rate given the market conditions.

(d) In the case of excise tax calculated using Average Market Rate, the tax shall be calculated based on the category of Retail Marijuana (i.e., Bud, Trim, Immature Plant, Wet Whole Plant, Seed, or Contaminated Product Allocated for Extraction) being sold or Transferred. The provisions of this paragraph (4)(d) apply only to excise tax calculated using Average Market Rate.

1. (i) The excise tax for Bud is computed on the total weight of all Bud that will be sold or Transferred. Notwithstanding this rule, the inadvertent inclusion of inconsequential amounts of Bud in a sale or Transfer that is otherwise Trim shall not be treated as the sale of Bud.
2. (ii) The excise tax for Trim is calculated on the total weight of all Trim that will be sold or Transferred. Notwithstanding this rule, the inadvertent inclusion of inconsequential amounts of Bud in a sale or Transfer that is otherwise Trim shall be treated as the sale of Trim.
3. (iii) The excise tax for Immature Plants is calculated on the total number of Immature Plants being sold or Transferred.
4. (iv) The excise tax for Wet Whole Plants is calculated on the total weight of the entire Retail Marijuana Wet Whole Plant. The weight of the entire plant is subject to tax because the Average Market Rate for Wet Whole Plant already reflects an allowance for water weight and waste. The Wet Whole Plant may not undergo any further processing (i.e., drying the plant and subsequently selling separately the Bud and Trim) prior to being weighed when using the Wet Whole Plant basis. The Wet Whole Plant must be harvested and packaged in the same day.
   1. (A) The Retail Marijuana Wet Whole Plant must be weighed within 2 hours of the plant being harvested and without any further processing, including any artificial drying such as increasing the ambient temperature of the room or any other form of drying, curing, or trimming. Tax must be calculated and paid on the total Wet Whole Plant weight. If the Wet Whole Plant is not weighed within 2 hours of being harvested or is subjected to further processing before being weighed, the excise tax on such plant cannot be calculated and paid on the Wet Whole Plant basis and must instead be calculated and paid at the Bud and Trim rates.
   2. (B) The Retail Marijuana Cultivation Facility must maintain records of the time each plant (identified by its RFID tag) was harvested and weighed and the weight of each plant. The records must be in writing and created contemporaneously with the harvesting and weighing.
5. (v) The excise tax for seeds is calculated on the total number of Seeds being sold or Transferred.
6. (vi) The excise tax for Contaminated Product Allocated for Extraction is computed on the total weight of all Contaminated Product Allocated for Extraction that will be sold or Transferred.
7. (vii) The excise tax for Retail Marijuana Concentrate created by a Retail Marijuana Cultivation Facility can be paid based on the amount of Bud and/or Trim used or can be paid on the Wet Whole Plant basis pursuant to paragraphs (4)(b)(i), (4)(b)(ii), and (4)(b)(iv) of this rule.
   1. (A) Example: A Retail Marijuana Cultivation Facility uses 100 grams of Bud and 348 grams of Trim to make 15 grams of concentrate on March 9, 2016. (Note: Average Markets Rates are based on the rates effective on January 1, 2016.) The following calculation will need to be performed: Bud:
      1. 100 grams /453.592 grams = 0.2205 lb. used to create the concentrate
      2. 0.2205 lb. x $1948/Ib. = $430 (Taxable Amount)

         $430 x 15% = $65 Trim:

         348 grams /453.592 grams = 0.7672 lb. used to create the concentrate

      3. 0.7672 lb. x $464/Ib. = $356 (Taxable Amount)

         $356 x 15% = $53 Total Due is $65 + $53 = $118 *448 grams per pound is acceptable to use in this calculation.

(6) Evidence of Payment of Tax.

(a) Both the Retail Marijuana Cultivation Facility and the first purchaser or transferee shall maintain documentation of the payment of the excise tax. Such evidence may be the purchase or Transfer invoice, so long as the invoice shows the name and license number of the Retail Marijuana Cultivation Facility, name and license number of first purchaser or transferee, the amount of excise tax paid or that will be paid by the Retail Marijuana Cultivation Facility when it files its next Retail Marijuana Excise Tax Return, the category of product being sold or Transferred, the date of sale or Transfer, and the weight of the product being sold or Transferred.

BOOKS AND RECORDS OF RETAIL MARIJUANA EXCISE TAX 39-28.8-303 Copies of all books and records required to be maintained pursuant to section 39-28.8-303, C.R.S., must be maintained at each Retail Marijuana Store, Retail Marijuana Products Manufacturing Facility, or Retail Marijuana Cultivation Facility for a period of at least four years. RETAIL MARIJUANA EXCISE TAX LICENSES AND RETURNS 39-28.8-304 (1) A Retail Marijuana Cultivation Facility shall file a Retail Marijuana Excise Tax Return monthly reporting the total amount of Retail Marijuana sold or Transferred and the excise tax due thereon.

(a) The Retail Marijuana Excise Tax Return shall be filed electronically by all such vendors. The remittance of the Retail Marijuana Excise Tax shall be made in accordance with procedures prescribed on the Department’s website or on forms published by the Department.

(b) If any vendor is unable to file Retail Marijuana Excise Tax Returns electronically, such vendor may apply to the Department for a waiver of electronic filing requirements. The Department may grant such a waiver upon a showing of good cause. RETAIL MARIJUANA EXCISE TAX PROCEDURES 39-28.8-308 The Department’s procedures governing Retail Sales Tax described in the rules promulgated under Articles 21 and 26 of Title 39 shall, to the extent not inconsistent with the provisions of Article 28.8 of Title 39, C.R.S. and the rules promulgated pursuant thereto, likewise govern the procedures with respect to the collection, reporting, and remittance of excise tax on Retail Marijuana. _________________________________________________________________________ Editor’s Notes History Entire rule emer. rule eff. 12/26/2013.

Rule 39-28.8-304 emer. rule eff. 02/14/2014.

Entire rule emer. rule eff. 04/22/2014.

Entire rule eff. 05/30/2014.

Rules 39-28.8-101, 39-28.8-302, 39-28.8-304 eff. 06/30/2016. Rules 39-28.8-101, 39-28.8-302 emer. rules eff. 08/08/2017. Rule 39-28.8-201 eff. 11/01/2017.