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DEFERRALS

ARTICLE 3.5

TAX DEFERRAL FOR THE ELDERLY

39-3.5-101. Definitions

            As used in this article, unless the context otherwise requires:

 

            (1) "Homestead" means the owner-occupied residence of the taxpayer and includes owner-occupied units in a condominium, townhouse, or similar structure and an owner-occupied mobile home.

 

            (1.5) "Mobile home" means any wheeled vehicle, exceeding either eight feet in width or thirty-two feet in length, excluding towing gear and bumpers, without motive power, which is designed and commonly used for occupancy by persons for residential purposes, in either temporary or permanent locations, and which may be drawn over the public highways by a motor vehicle.

 

            (1.8) "Person called into military service" means a member of the army national guard of the United States, the army reserve, the naval reserve, the marine corps reserve, the air national guard of the United States, the air force reserve, or the coast guard reserve who has been ordered to active duty pursuant to 10 U.S.C. sec. 12301 (a) or 12302 for a period of more than thirty consecutive days in a time of war or national emergency declared by the congress or the president of the United States. "Active duty" includes any period during which a person called into military service is absent from duty on account of sickness, wounds, leave, or other lawful cause.

 

            (2) "Real property taxes" means all ad valorem taxes levied on a homestead, including special assessments and all other charges which are recoverable by law at the annual real estate tax sale, and includes special assessments and all other charges which are recoverable by law at the personal property tax sale of a mobile home, as provided in section 39-10-111.

 

            (3) "Tax-deferred property" means the property upon which real property taxes are deferred pursuant to this article.

 

            (4) "Taxpayer" means a person who has filed or whose guardian, conservator, or attorney-in-fact has filed a claim for deferral pursuant to this article or persons who have jointly filed a claim for deferral under this article.

39-3.5-102. Deferral of tax on homestead - qualifications - filing of claim

            (1) (a) Subject to the provisions of this article, a person who is sixty-five years of age or older or who is a person called into military service on January 1 of the year in which the person files a claim under this section may elect to defer the payment of real property taxes. To exercise this option, the taxpayer shall file a claim for deferral with the treasurer of the county in which the taxpayer's homestead is located. The claim shall be filed after January 1 and on or before April 1 of each year in which the taxpayer claims the deferral.

 

            (b) Notwithstanding paragraph (a) of this subsection (1), a person called into military service at any time between January 1, 2003, and June 30, 2003, may defer the payment of real property taxes for the property tax year 2002 by filing a claim pursuant to this section on or before June 30, 2003.

 

            (2) When a taxpayer who is sixty-five years of age or older or who is a person called into military service files a valid claim for deferral under subsection (1) of this section, it shall have the effect of:

 

            (a) Deferring the payment of his real property taxes for the calendar year previous to the year in which the claim is filed;

 

            (b) Continuing the deferral of taxes which have been deferred under this article for previous years which have not become delinquent pursuant to section 39-3.5-111;

 

            (c) Terminating and releasing the lien for the general taxes so deferred created by section 39-1-107 and substituting therefor the lien for said deferred taxes created by section 39-3.5-105.

 

            (2.5) A person called into military service may defer only the real property taxes payable in a year in which the person is a person called into military service. A person who is no longer a person called into military service may file a valid claim in a subsequent year to continue the deferral of taxes payable in a year in which the person was a person called into military service.

 

            (3) If a guardian, conservator, or attorney-in-fact has been appointed for a taxpayer otherwise qualified to claim deferral of taxes under this article, the guardian, conservator, or attorney-in-fact may act for such taxpayer in claiming the deferral.

39-3.5-103. Property entitled to deferral   

            (1) In order to qualify for real property tax deferral under this article, the property shall meet all of the following requirements at the time the claim is filed and so long thereafter as payment is deferred:

            (a) The property must be the homestead of the taxpayer claiming the deferral.

            (b) The taxpayer claiming the deferral must, by himself or jointly with another person residing in the homestead, own the fee simple estate or be purchasing the fee simple estate under a recorded instrument of sale or own the mobile home or be purchasing the mobile home under a recorded instrument of sale; except that nonresidence of the joint owner in the homestead because of ill health of the joint owner shall not prevent the taxpayer from meeting the requirement of this paragraph (b).

            (c) The property for which the deferral is claimed must not be income-producing.

            (d) The property may not be subject to the lien of a mortgage or deed of trust which has been of record for less than five years prior to the date on which a claim for deferral is submitted to the county treasurer; except that:

            (I) Prior to January 1, 2006, the property may not be subject to the lien of a mortgage or deed of trust which has been of record for less than five years prior to the date on which a claim for deferral is submitted to the county treasurer; except that:

            (A) If a certificate of tax deferral was issued for property prior to January 1, 1980, such deferral shall be valid and such property may continue to qualify for tax deferral in subsequent years even though a mortgage or deed of trust on the property before said date has not been of record for five years prior to the date on which a claim for deferral is submitted;

            (B) If there is of record a subordination agreement whereby the holder of a mortgage or deed of trust, which has not been of record for five years prior to the date on which a claim for deferral is submitted, agrees to subordinate such mortgage or deed of trust to the lien of the state for deferred taxes, the property may qualify for tax deferral.

            (II) This paragraph (d) is repealed, effective January 1, 2006.

            (d.5) (I) On or after January 1, 2006, either of the following applies to the property:

            (A) The owner of the property is a person who is sixty-five years of age or older, and the total value of all liens of mortgages and deeds of trust on the property, excluding any mortgage or deed of trust that the holder has agreed, on a form designated by the state treasurer, to subordinate to the lien of the state for deferred taxes, is less than or equal to seventy-five percent of the actual value of the property, as determined by the county assessor; or

            (B) The owner of the property is a person called into military service, and the total value of all liens of mortgages and deeds of trust on the property, excluding any mortgage or deed of trust that the holder has agreed, on a form designated by the state treasurer, to subordinate to the lien of the state for deferred taxes, is less than or equal to ninety percent of the actual value of the property, as determined by the county assessor.

            (II) For purposes of this paragraph (d.5), the actual value of the property shall be the most recent appraisal by the county assessor as of the time the claim for deferral is submitted to the county treasurer.

            (e) All real property taxes for years prior to the year for which the election is made must be paid.

            (f) The cumulative value of the deferral provided in this section plus the interest accrued on the deferral provided in section 39-3.5-105 (5) shall not exceed the market value of the property less the value of all mortgages which constitute liens upon the property and any other liens upon the property filed prior to the date of recordation of the certificate for deferral.

39-3.5-104. Claim form - contents

            (1) A taxpayer's claim for deferral shall be in writing on a form prescribed by the state treasurer and supplied by the county treasurer and shall:

            (a) Describe the property;

            (b) Recite facts which establish eligibility for deferral under the provisions of this article;

            (c) List all mortgages and deeds of trust which constitute liens upon the property, together with the book and page number of the county records at which each is recorded and the date of recordation;

            (d) List all mortgages which constitute liens upon a mobile home, together with the street address and county where the record of any such mortgage is on file with the authorized agent for the department of revenue;

            (d.5) On or after January 1, 2006, list the actual value of the property based on the most recent appraisal by the county assessor;

            (e) Demonstrate that the cumulative value of the deferral plus the interest accrued on the deferral does not exceed the market value of the property less the value of all mortgages which constitute liens upon the property and any other liens upon the property filed prior to the date of recordation of the certificate for deferral.

            (2) The form prescribed by the state treasurer shall contain a statement, in bold-faced type, that states substantially as follows:

"IMPORTANT NOTICE TO PROPERTY OWNER: YOU COULD LOSE YOUR PROPERTY IF THE CUMULATIVE AMOUNT OF THE DEFERRAL PLUS INTEREST EXCEEDS THE MARKET VALUE OF YOUR PROPERTY LESS THE VALUE OF ANY LIENS."

39-3.5-105. Listing of tax-deferred property - tax as lien - interest accrual

            (1) If eligibility for deferral of homestead property is established as provided in this article, the county treasurer shall:                          

            (a) Enter in his records a notation that the property is tax-deferred;                                               

            (b) (I) Promptly, upon designation of the property as tax-deferred, issue a certificate of deferral, which shall include the name of the taxpayer, the description of the property, the amount of tax deferred, and the year for which the deferral was granted. The certificate shall be recorded in the county records and thereafter sent to the state treasurer. One copy shall be given to the assessor, and one copy shall be retained in the county treasurer's office.                                 

            (II) Promptly, upon designation of a mobile home as tax-deferred, the owner of the mobile home shall surrender title to the property to the county clerk and recorder. The county clerk and recorder shall, pursuant to the provisions of article 29 of title 38, C.R.S., make application with the department of revenue for issuance of a new certificate of title with a record of the lien of the state treasurer. This procedure shall be followed for each subsequent year that the property is deferred. The county treasurer shall issue a certificate of deferral, which shall include the name of the taxpayer, the description of the property, the amount deferred, and the tax year for which the deferral was granted, and shall send such certificate to the state treasurer. One copy shall be given to the county assessor, and one copy shall be retained in the county treasurer's office. Upon satisfaction of said lien, the state treasurer shall release the lien from said title.                       

            (2) Notwithstanding the requirements of section 39-1-119 (1), if a person holding escrow funds for the payment of ad valorem taxes receives a copy of the certificate of deferral relating to any tax-deferred property, he shall, no later than thirty days after receiving said certificate, refund to the owner of said property all funds held in escrow for the payment of ad valorem taxes on said property which have been deferred.                                                                       

            (3) Until otherwise required by this article, the county treasurer shall, in subsequent years, continue to list the property as tax-deferred in the manner provided in subsection (1) of this section.                                     

            (4) (a) The lien for deferred taxes and interest shall attach on the date of recordation of the certificate for deferral, shall be junior to any mortgage or deed of trust recorded prior to the date of recording of such certificate, shall have priority over all liens attaching subsequent to the date of recording of such certificate, and shall not be foreclosed except as provided in sections 39-3.5-110 to 39-3.5-112.                                                                                                    

            (b) The lien for deferred taxes and interest for 1978 deferred taxes shall attach on the date of recordation of the certificate of deferral, shall be junior to any mortgage or deed of trust recorded prior to the date of recording of such certificate, shall have priority over all liens attaching subsequent to the date of recording of such certificate, and shall not be foreclosed except as provided in sections 39-3.5-110 to 39-3.5-112.                                                     

            (5) (a) Repealed.                       

            (b) On and after May 1, 1999, interest shall accrue on all taxes deferred pursuant to deferrals claimed prior to the 1999 calendar year at the rate of seven percent per annum until the date on which such taxes are paid. Interest shall accrue on all taxes deferred pursuant to deferrals claimed on and after January 1, 1999, but prior to January 1, 2001, at the rate of seven percent per annum, beginning May 1 of the calendar year in which the deferral is claimed, until the date on which such taxes are paid.                                                                                                                                        

            (c) Interest shall accrue on all taxes deferred pursuant to all deferrals claimed on and after January 1, 2001, at a rate equivalent to the rate per annum on the most recently issued ten-year United States treasury note, rounded to the nearest one-tenth of one percent, as reported by the "Wall Street Journal", as of February 1 of the calendar year in which such deferral is claimed. Interest shall accrue on taxes deferred at the rate specified in this paragraph beginning May 1 of the calendar year in which the deferral is claimed until the date on which such taxes are paid.                          

39-3.5-105.5. Loan of state moneys to taxpayers

            (1) Upon approval by the state treasurer of a taxpayer's application to participate in the property tax deferral program, the state treasurer shall make a loan to the taxpayer in the amount certified as deferred in the taxpayer's certificate of deferral. The loan shall be disbursed to a county treasurer on behalf of the taxpayer pursuant to section 39-3.5-106 and shall be made from the moneys on deposit in the state treasury that are not immediately required to be disbursed.                                                                                 

            (2) Interest on a loan for property tax deferral shall accrue at the rate specified in section 39-3.5-105 (5). The interest shall accrue beginning April 30 of the calendar year in which the deferral is claimed until the date on which such loan is repaid.                                                                                                                                                

39-3.5-105.7. Prior deferrals to be treated as loans

            All deferred real property tax paid by the state treasurer to a county treasurer prior to July 1, 2002, shall be reclassified as an investment in a loan to a taxpayer that was disbursed to a county treasurer on behalf of the taxpayer, and all provisions of this article shall apply to the loan              

39-3.5-106. State treasurer to pay county treasurer an amount equivalent to deferred taxes

            (1) Pursuant to section 39-3.5-105.5, the state treasurer shall loan the amount certified as deferred in the certificate of deferral to a taxpayer deferring property taxes under this article. By April 30, 2003, and by each April 30 thereafter, the state treasurer shall pay the amount of each taxpayer's loan to the county treasurer in which the taxpayer's homestead property is located. The total amount paid by the state treasurer shall be distributed by the county treasurer in the same manner the tax would have been if regularly paid.                                                                                                                   

            (2) The state treasurer shall maintain an account for each tax-deferred property and shall accrue interest, beginning May 1 of the calendar year in which the deferral was claimed, on the amount certified as deferred in the certificate of deferral. The state treasurer shall insure that each account for tax-deferred property complies with this article.

39-3.5-107. Repayment of loans - release of liens - disposition of payments

            (1) On and after the date of payment by the state treasurer to the county treasurer as provided in section 39-3.5-106, the right to receive repayment of a loan for deferred taxes and to enforce the lien created by deferral shall be vested in the state treasurer.

            (2) If repayment of a loan for deferred taxes is tendered to the county treasurer, he or she shall accept payment, give a receipt therefor, and forthwith transmit the money collected to the state treasurer.

            (3) Promptly upon receiving repayment of a loan for deferred taxes, the state treasurer shall issue a release of the deferred tax lien, which release shall be given or sent to the person making payment. Copies of the release shall be sent to the treasurer and the assessor.

            (4) All interest received in payment for a loan for deferred taxes shall be credited to the general fund by the state treasurer.

39-3.5-108. Notice to taxpayer regarding duty to claim deferral annually.

            At the time the treasurer sends the annual real property tax notice to any taxpayer who has claimed a deferral of property taxes in the previous calendar year, he shall enclose a deferral notice. The deferral notice shall be substantially in the following form:

To: (name of taxpayer)
If you want to defer the collection of ad valorem property taxes on your homestead for the assessment year ending on December 31, ____, you must file a claim for deferral not later than April 1,___ , in the office of the county treasurer. Forms for filing such claims are available at the county treasurer's office.
If you fail to file your claim for deferral on or before April 1,___, your real property taxes will be due and payable in accordance with the schedule set out in the enclosed tax notice.
If you change your permanent address at any time during the assessment year ending on December 31, ___, you must notify the county assessor promptly.

39-3.5-109. Failure to receive notices

            Failure to receive the notice provided for in this article is not a defense in any proceeding for the collection of taxes or for the foreclosure of a tax lien. The treasurer is not personally liable for failure to give such notices.

39-3.5-110. Events requiring repayment of loans - notice to state treasurer  

            (1) All loans for deferred real property taxes, including accrued interest, shall become payable subject to sections 39-3.5-111 and 39-3.5-112 when:

            (a) The taxpayer who claimed the tax deferral dies;

            (b) The property on which the taxes were deferred is sold or becomes subject to a contract of sale, or title to the property is transferred to someone other than the taxpayer who claimed the tax deferral;

            (c) The property is no longer the homestead of the taxpayer who claimed the deferral, except in the case of a taxpayer required to be absent from such tax-deferred property by reason of ill health;

(d) The tax-deferred property no longer meets the requirements of section 39-3.5-103 (1) (c) or (1) (f);

            (e) The location of the tax-deferred mobile home has changed either within the county or to another county.

            (2) When the assessor or treasurer has reason to believe any of the circumstances enumerated in this section has occurred, he shall promptly notify the state treasurer.

39-3.5-111. Time for payment - delinquencies

            (1) Whenever any of the circumstances listed in section 39-3.5-110 occurs:

            (a) No further tax deferrals may be claimed on the property until all loans for unpaid taxes, including previously deferred taxes and interest, have been paid.

            (b) All loans for deferred taxes and accrued interest shall be due and payable ninety days after the circumstance occurs, except as provided in subsection (2) of this section and in section 39-3.5-112.

            (2) Any provision of this section to the contrary notwithstanding, when the taxpayer dies a loan for deferred taxes and accrued interest shall be due and payable one year after the taxpayer's death.

            (3) If a loan for deferred taxes and accrued interest is not paid on the due date, such amounts are delinquent as of that date, and the state treasurer shall foreclose the deferred tax lien.

            (4) Foreclosure by the state treasurer of deferred tax liens shall be in the same manner as provided by law for the foreclosure of judgment liens. At the foreclosure sale, the state treasurer or his representative shall bid on behalf of the state of Colorado the amount of the deferred tax lien.

            (5) If the owner of the tax-deferred property elects to do so, he or she may convey the property to the state of Colorado in lieu of paying a loan for deferred taxes and accrued interest. Upon completion of such conveyance, all deferred tax liens upon the property shall be extinguished, and all liability for payment of a loan for deferred taxes and accrued interest shall be released.

            (6) The lien for deferred taxes shall be subject to and may be extinguished in a proper foreclosure of a mortgage or deed of trust recorded prior to the date of recording of the certificate of tax deferral. In any such foreclosure, any notice that is required to be sent to the state by reason of the state's holding of a lien for deferred taxes shall be sent to the state treasurer. All other procedural matters for such foreclosure, including notice and time limits, shall be as provided in the law pursuant to which the foreclosure is brought.

            (7) Whenever the state forecloses a lien for deferred taxes, the interest in the property obtained thereby shall be subject to foreclosure proceedings by the holder of a mortgage or deed of trust recorded prior to the date of recording of the certificate of tax deferral.

39-3.5-112. Election by spouse to continue tax deferral

            (1) Notwithstanding the provisions of section 39-3.5-110, when one of the circumstances listed in section 39-3.5-110 (1) (a) or (1) (c) occurs, the spouse of the taxpayer may elect to continue the property in its tax-deferred status if:

(a) The spouse of the taxpayer is or will be sixty years of age or older when the circumstance occurs; and

(b) The property is the homestead of the spouse of the taxpayer and meets the requirements of section 39-3.5-103 (1) (b) and (1) (c).

(1.5) (a) Notwithstanding the provisions of section 39-3.5-110 (1) (a), when a taxpayer who claimed a tax deferral pursuant to this article dies, the loan for deferred real property taxes, including accrued interest, shall not become payable if:

(I) The taxpayer was a person called into military service;

(II) The taxpayer is survived by a spouse; and

(III) The property is the homestead of the surviving spouse and meets the requirements of section 39-3.5-103 (1) (b) and (1) (c).

(b) If paragraph (a) of this subsection (1.5) applies, a loan for deferred real property taxes, including accrued interest, shall become payable when the spouse of the taxpayer dies, in addition to the events set forth in section 39-3.5-110.

(2) The election granted under subsection (1) of this section shall be filed in the same manner as a claim for deferral is filed under section 39-3.5-102, not later than ninety days from the date the circumstance occurs. Thereafter, the property shall continue to be treated as tax-deferred property, and the county treasurer and state treasurer shall withdraw any action taken under section 39-3.5-111. When the property has been continued in its tax-deferred status by the spouse of the taxpayer, the spouse may continue the property in its tax-deferred status in subsequent years by filing a claim, as provided in section 39-3.5-104, annually if the property continues to be eligible for tax-deferred status.

39-3.5-113. Voluntary repayment of loans for deferred tax

            (1) Subject to subsection (2) of this section, all or part of a loan for deferred taxes and accrued interest may, at any time, be paid by the taxpayer, his or her spouse, guardian, conservator, attorney-in-fact, personal representative, next of kin, heir-at-law, or child, or any person having or claiming a legal or equitable interest in the property. If the deferred tax lien is paid, in whole or in part, by a mortgagee or the beneficiary of a deed of trust or seller under contract, the amount paid may be added to the unpaid balance of the mortgage or deed of trust but shall be added to the last payment due under said mortgage or deed of trust or contract, without amortization.

            (2) Any payment made under this section shall be applied first to accrued interest and then to a loan for deferred taxes. Such payment does not affect the deferred tax status of the property. Voluntary payment does not give the person paying the taxes any interest in the property.

39-3.5-114. Deferred tax certificates not to be included in reserve or surplus. (Repealed)

39-3.5-115. Limitations on effect of article

            Nothing in this article is intended to or shall be construed to prevent the collection, by foreclosure or otherwise, of personal property or other taxes which become a lien against tax-deferred property.

39-3.5-116. Deed or contract clauses preventing application for deferral prohibited - clauses void. (Repealed)

39-3.5-117. Report. (Repealed)

39-3.5-118. Emergency property tax deferral for depositors of troubled industrial banks. (Repealed)

39-3.5-119. Release of information identifying individuals claiming deferral

            (1) Notwithstanding the provisions of part 2 of article 72 of title 24, C.R.S., or any other provision of law to the contrary, county treasurers and the state treasurer shall deny requests from individuals, corporations, or other private entities to inspect or produce the names, addresses, phone numbers, social security numbers, or other information identifying individuals who claim deferrals pursuant to this article.                                                                                                                                       

            (2) Nothing in this section shall be construed to prohibit individuals from examining records recorded in county records by the county clerk and recorder nor shall it be construed to prohibit the disclosure of information:        

            (a) Required in connection with granting or denying a claim for deferral;                                        

            (b) Required in connection with an administrative, judicial, or other legal proceeding;                    

            (c) Required in connection with the conveyance, sale, or encumbrance of a specific property;       

            (d) When the information is contained in a statistical compilation or other informational summary that does not disclose individual identifying information; or                                                                                            

            (e) When the individual claiming the exemption has agreed to the disclosure.

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