No.

Opinion

Mr. Joseph Dolan Executive Director Department of Revenue State Capitol Annex 1375 Sherman Street Denver, Colorado 80203

Dear Mr. Dolan:

QUESTIONS PRESENTED AND CONCLUSIONS

You have requested my opinion as to the following questions:

1. Whether the gross proceeds collected by the Department of Revenue from sources listed in C.R.S. 1973, 43-4-203(1) are to be entirely credited to the Highway Users Tax Fund (HUTF), or whether the costs of collection and administration are to be deducted and credited to the General Fund?

2. Whether moneys coming from HUTF sources are restricted to HUTF uses?

Only net revenues collected by the Department of Revenue from highway related excise taxes and fees are to be paid into the highway users tax fund, however funds attributable to collection costs and administrative expenses are available only for Highway User Tax Fund related expenditures.

ANALYSIS

The first issue relates to the proper procedures to be used when the Department collects HUTF moneys: should the Department credit to the HUTF "gross proceeds" to the costs of collection and administrative expenses?

Currently, the Department credits "gross proceeds" to the HUTF, and the legislature then appropriates money out of the HUTF to cover collection costs and administrative expenses.

However, the statutory scheme requires a different procedure.

The Highway Users Tax Fund is established in C.R.S. 1973,43-4-201 et seq. Of the revenue collected under these statutory provisions, C.R.S. 1973, 42-4-203(1) states:

All net revenue from the following sources shall be paid into and credited to the highway users tax fund as soon as received:

(Emphasis added.)

"Net revenue" is defined as follows by C.R.S. 1973, 43-4-202(1):

"Net revenue" means the amount derived from a tax or fee after paying refunds, costs of collection, and expenses of administration.

It is interesting to note that the precursor of C.R.S. 1973,43-4-203, as found in Section 1410 of the Compiled Laws of 1921, reads:

All receipts from the following sources shall be paid into and credited to the State Highway Fund as soon as received.

In light of the above conclusion, you have asked whether the funds attributed to collection costs and administrative expenses should be credited to the General Fund pursuant to C.R.S. 1973,24-75-201. Regardless of what fund the money is placed in for accounting purposes, it is clear that the money would be restricted to HUTF related expenditures.

Colo. Const. art. X, § 18, adopted in 1934, removed certain excise taxes and fees from availability for general state purposes:

On and after July 1, 1935, the proceeds from the imposition of any license, registration fee or other charge with respect to the operation of any motor vehicle upon any public highway of this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel shall, except costs of administration, be used exclusively for the construction, maintenance and supervision of the public highways of this state.

In Johnson v. McDonald, 97 Colo. 324, 346 (1935), the court stated:

In our opinion the amendment of 1934 (art. X, § 18) declared the object to which the funds arising from the excise taxes therein mentioned should be applied, namely for road purposes, as distinguished from other governmental purposes . . . .

Also see Trinidad v. Haxby, 136 Colo. 168 (1957).

SUMMARY

The funds in question here are not all-purpose funds, and the Department should spend such funds only for HUTF related purposes. Thus, if in a given year the Department has an excess of these funds, they could not be spent for other purposes such as income tax enforcement or unrelated office expenses.

Very truly yours,

J.D. MacFARLANE Attorney General

PUBLIC FUNDS TAXATION AND REVENUE

C.R.S. 1973, 43-4-203(1) C.R.S. 1973, 43-4-201(1) C.R.S. 1973, 24-75-201

Colo. Const. art. X, § 18

REVENUE, DEPT. OF

Only net revenues collected by the Department of Revenue from highway related excise taxes and fees are to be paid into the highway users tax fund, however funds attributable to collection costs and administrative expenses are available only for Highway User Tax Fund related expenditures.