AGO 88-6.

Case Date:November 03, 1988
Colorado Attorney General Opinions 1988. AGO 88-6. November 3, 1988Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 88-6 AG Alpha No. RV AD AGAQW Amelie A. Buchanan Deputy Director Department of Revenue 1375 Sherman Street, No. 404 Denver, Colorado 80261 RE: Waiver of Amount applied to Underpayment of Estimated TaxDear Ms. Buchanan: This opinion letter is in response to your letter of October 17, 1988 wherein you ask whether the Executive Director of the Department of Revenue may waive the amount required by Section 39-22-605(5), C.R.S. (1988 Supp.) to be added to the underestimated tax. QUESTION PRESENTED AND CONCLUSION You ask the following specific question: May the Executive Director of the Department of Revenue waive the charge provided in Section 39-22-605(5), C.R.S. (1988 Supp.)? My conclusion is "No." ANALYSIS Section 39-22-605(5), C.R.S. (1988 Supp.) provides that in the event of underpayment of estimated tax due the State of Colorado, as computed pursuant to Section 39-22-605(4), C.R.S. (1988 Supp.), there "shall be added" to the tax due "an amount determined at the rate imposed under section 39-21-110.5 on the amount of underpayment in excess of one thousand dollars...." When used in a statute, the word "shall" "involves a 'mandatory connotation' and hence is the antithesis of discretion or choice." People v. Guenther, 740 P.2d 971, 975 (Colo. 1987); and, is construed to be imperative rather than permissive in nature. Swift v. Smith, 119 Colo. 126, 201 P.2d 609, 614 (Colo. 1948). Moreover, there is an absence of statutory authority for the executive director to waive the added amount imposed under Section 39-22-605(5), C.R.S. (1988 Supp.) at the Section 39-21-110.5, C.R.S. (1982) rate of interest. It is noted that Section 39-26-118(9), C.R.S. (1982), which authorizes the executive director to waive certain penalties and excess interest, is applicable only to articles 21 and 26 of title 39 and not to article 22 wherein the authority for the imposition in issue falls. Likewise, Section 39-22-621(2)(j), C.R.S. (1988 Supp.) does not apply to estimated tax since Section 39-22-621(2)(k), C.R.S. (1982) specifically states that the "provisions of this section shall not apply to any estimated tax required to be paid by or under the provisions of Sections 39-22-605...

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