dissenting.
Like the majority, I would reject the court of appeals' determination that letters from the Towns' lawyers constituted final decisions denying the taxpayer's claims for refund, but I would nevertheless affirm the judgment of that court for the reason that I believe the taxpayer failed to exhaust its local remedies within the meaning of section 29-2-106.1 of the revised statutes. In my view, the majority substantially misconstrues both the statute and our holding in Walgreen, leading it to declare "legally inoperative" the hearing provisions of the Towns' codes-a conclusion we expressly rejected in that case. The only question properly raised by the circumstances of this case is whether the taxpayer ever submitted itself to a decision by the Finance Directors of the Towns, a precondition for the exhaustion of its local remedies permitting a new hearing by the state, and I believe the record demonstrates that it did not. I therefore respectfully dissent.
In Walgreen Co. v. Charnes, we held that "the appellate process governing locally imposed sales and use taxes is a matter of state *723concern and is thus subject to regulation by the General Assembly." 819 P.2d 1039, 1047 (Colo.1991). Although we rejected Denver's claim to provide for the exclusive method of reviewing its own sales and use tax decisions, we acknowledged that the applicable state statute contemplates the continued viability of local sales and use tax decision-making procedures and merely permits taxpayers to choose an alternate statutory method of challenging local decisions. See § 29-2-106.1(9), C.R.S. (2009) ("In lieu of electing a hearing pursuant to this section on a notice of deficiency or claim for refund, a taxpayer may pursue judicial review of a local government's final decision thereon as otherwise provided in such local government's ordinance."). We therefore also rejected Walgreen's contention that the sales and use tax articles of Denver's municipal code were null, void, and unconstitutional. Walgreen, 819 P.2d at 1042, 1049 n. 19.
The statutory scheme provides for "review" of a local government's denial of a taxpayer's claim for a refund of sales or use tax by a de novo hearing before the Executive Director of the Department of Revenue or, in some cireumstances, directly in the district court. § 29-2-106.1(3), (8).1 The taxpayer may only request such a de novo hearing after it has exhausted its local remedies, see subsection (2)(c), and the exhaustion of those remedies is statutorily defined to require a written request for a hearing before the local government and either a final decision or failure of that government to make a final decision within ninety days of the request, see subsections (Z2)(c)(D), (IN). The statute, however, does not purport to pre-seribe the particular incidents of such a local hearing, indicating instead (as is perfectly consistent for a hearing the outcome of which is subject to challenge by a de novo hearing rather than appellate review) merely that it is to be informal, without requiring a tran-seript of the proceedings, application of the rules of evidence, or the filing of briefs. See subsection (2)(c)(I).
Although I think it clear that the majority errs by interpreting the statute's enumeration of characteristies not "required" of such a hearing as a statutory bar to their inclusion,2 the real question should be whether the taxpayer ever requested, or was willing to subject itself to, a local hearing at all. Whatever else the statute contemplates by the term "hearing," it surely intends a proceeding (however informal and however chal-lengeable by the presentation of new evidence and arguments at a de novo hearing) at which evidence can be taken and a decision-maker can resolve the issue, one way or the other. The record demonstrates that the taxpayer in this case steadfastly refused to subject itself to a hearing at which the Towns' Finance Directors would have authority to deny its claim; and instead, it expressly offered to participate only in the "informal hearing" permitted by the local codes, which in their lexicon and according to their explicit definitions was nothing more than a settlement conference at which the parties could attempt to reach agreement and thereby avoid an actual decision-making hearing.3
After Walgreen, it was clearly within the discretion of the taxpayer to challenge any adverse rulings by the local governments, at its choice, according to either statutory or locally-prescribed procedures. The taxpayer therefore could not, under any cireum-*724stances, have been limited to the abuse of discretion review prescribed by C.R.C.P. 106, regardless of any provisions of the local ordinances to the contrary. By the same token, however, the taxpayer should not be permitted to simply bypass a ruling by the local governments and proceed in the first instance directly to a state decision-maker, by mixing and matching isolated provisions of the local and state codifications, which have meaning only in the comprehensive scheme of one or the other code. Regardless of any superficial similarities in nomenclature, the taxpayer not only failed, but in fact refused, to request a "hearing" within the meaning of section 29-2-106.1(2)(c)(II) and therefore failed to comply with the statutory requirement for "exhaustion of local remedies."
I do not believe the taxpayer's statutory right to a de novo hearing by the Department of Revenue was ever threatened. MDC simply refused to submit itself to a local decision from which it would then have a choice of review procedures. Unlike the majority, I would not permit the taxpayer to game the system in this manner and thereby defeat the constitutional and statutory right of the Towns to make the initial decision whether to grant or deny its claims for refund.
I therefore respectfully dissent.
I am authorized to state that Chief Justice MULLARKEY and Justice EID join in this dissent.. The statute does not appear to use the term "review" at all. Rather, it expressly permits the taxpayer to "elect" or "request" a hearing to be conducted by the Executive Director of the Department of Revenue or his delegate, "in the same manner as set forth in section 39-21-103, C.R.S.," and to be conducted "de novo, without regard to the decision of the local government." § 29-2-106.1(2), (3). In Walgreen, we somewhat confusingly referred to this de novo hearing process as a "de novo review," see, eg., Walgreen, 819 P.2d at 1049, and the majority continually refers (perhaps even more confusingly) to the statute as providing for a "de novo standard of review."
. It seems particularly unpersuasive to construe this language as barring a local government from recording the hearing, as the majority appears to do.
. Unlike the majority, I would not treat as a finding of fact, entitled to deference by this court, any determination by either the Executive Director or the district court that the taxpayer's limited request for the "informal hearing" of fered by the local codes amounted to a request for a hearing that could satisfy the statutory requirement to exhaust local remedies.