[Adopted 2-9-1983 by L.L. No. 2-1983 as
Ch. 170, Art. I, of the 1983 Code]
A. Pursuant to the authority granted by § 5-530
of the Village Law of the State of New York, a tax equal to 1% of
its gross income from and after the first day of January 1952 is hereby
imposed upon every utility doing business in the Town/Village of East
Rochester which is subject to the supervision of the State Department
of Public Service and which has a gross income for the 12 months ending
December 31 in excess of $500, except motor carriers or brokers subject
to supervision under § 150 et seq. of the Transportation
Law, and a tax equal to 1% of its gross operating income from and
after the first day of January 1952 is hereby imposed upon every other
utility doing business in the Town/Village of East Rochester which
has a gross operating income for the 12 months ending December 31
in excess of $500, which taxes shall have application only within
the territorial limits of the Town/Village of East Rochester and shall
be in addition to any and all other taxes and fees imposed by any
other provision of law.
[Amended 3-8-1999 by L.L. No. 1-1999]
B. Such taxes shall not be imposed on any transaction
originating or consummated outside the territorial limits of the Town/Village
of East Rochester, notwithstanding that some act is necessarily performed
with respect to such transaction within such limits.
[Amended 3-8-1999 by L.L. No. 1-1999;
at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
Words and phrases used in this article, unless
otherwise noted, shall have the same meanings ascribed to them in § 186-a
of the Tax Law.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Clerk-Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Clerk-Treasurer may consent to their destruction
within that period or may require that they be kept longer.
A. Every utility subject to tax hereunder shall file
annually, on or before April 15 of each year, a return for the 12
calendar months preceding such return date or any portion thereof
for which the tax imposed hereby is effective.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B. Every return shall state the gross income or gross
operating income for the period covered thereby. Returns shall be
filed with the Clerk-Treasurer on a form to be furnished by him for
such purpose and shall contain such other data, information or matter
as he may require to be included therein. The Clerk-Treasurer, in
order to ensure payment of the tax imposed, may require at any time
a further or supplemental return, which shall contain any data that
may be specified by him, and he may require any utility doing business
in the Town/Village of East Rochester to file an annual return, which
shall contain any data specified by him, regardless of whether the
utility is subject to tax under this article. Every return shall have
annexed thereto an affidavit of the head of the utility making the
same, or of the owner or of a copartner thereof, or of a principal
officer of the corporation if such business is conducted by a corporation,
to the effect that the statements contained therein are true.
At the time of filing a return as required by
this article, each utility shall pay to the Clerk-Treasurer the tax
imposed by this article for the period covered by such return. Such
tax shall be due and payable at the time of filing the return or,
if a return is not filed when due, on the last day on which the return
is required to be filed.
A. In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Clerk-Treasurer and
if a corrected or sufficient return is not filed within 20 days after
the same is required by notice from him or if no return is made for
any period, the Clerk-Treasurer shall determine the amount of tax
due from such information as he is able to obtain and, if necessary,
may estimate the tax on the basis of external indexes or otherwise.
He shall give notice of such determination to the person liable for
such tax.
(1) Such determination shall finally and irrevocably fix
such tax, unless the person against whom it is assessed shall, within
30 days after the giving of notice of such determination, apply to
the Clerk-Treasurer for a hearing or unless the Clerk-Treasurer of
his own motion shall reduce the same. After such hearing, the Clerk-Treasurer
shall give notice of his decision to the person liable for the tax.
Such decision may be reviewed by a proceeding under Article 78 of
the Civil Practice Law and Rules of the State of New York if application
therefor is made within 90 days after the giving of notice of such
decision.
(2) An order to review such decision shall not be granted
unless the amount of any tax sought to be reviewed, with interest
and penalties thereon, if any, shall be first deposited with the Clerk-Treasurer
and an undertaking filed with him, in such amount and with such sureties
as a Justice of the Supreme Court shall approve, to the effect that,
if such proceeding is dismissed or the tax confirmed, the applicant
will pay all costs and charges which may accrue in the prosecution
of such proceeding or, at the option of the applicant, such undertaking
may be in a sum sufficient to cover the tax, interest, penalties,
costs and charges aforesaid, in which event the applicant shall not
be required to pay such tax, interest and penalties as a condition
precedent to the granting of such order.
B. Except in the case of a willfully false or fraudulent
return with intent to evade the tax, no assessment of additional tax
shall be made after the expiration of more than three years from the
date of the filing of a return; provided, however, that where no return
has been filed as required by this article, the tax may be assessed
at any time.
Any notice authorized or required under the
provisions of this article may be given by mailing the same to the
persons for whom it is intended, in a postpaid envelope, addressed
to such person at the address given by him in the last return filed
by him under this article or, if no return has been filed, then to
such address as may be obtainable. The mailing of such notice shall
be presumptive evidence of the receipt of the same by the person to
whom addressed. Any period of time, which is determined according
to the provisions of this article by the giving of notice, shall commence
to run from the date of mailing of such notice.
Any person failing to file a return or corrected
return, or to pay any tax or any portion thereof, within the time
required by this article shall be subject to a penalty of 5% of the
amount of tax due, plus 1% of such tax for each month of delay or
fraction thereof, excepting the first month, after such return was
required to be filed or such tax became due, but the Clerk-Treasurer,
for cause shown, may extend the time for filing any return and, if
satisfied that the delay was excusable, may remit all or any portion
of the penalty fixed by the foregoing provisions of this section.
A. If within one year from the payment of any tax or
penalty the payer thereof shall make application for a refund thereof
and the Clerk-Treasurer or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected,
the Clerk-Treasurer shall refund the amount so determined. For like
cause and within the same period, a refund may be so made on the initiative
of the Clerk-Treasurer. However, no refund shall be made of a tax
or penalty paid pursuant to a determination of the Clerk-Treasurer
as hereinbefore provided unless the Clerk-Treasurer, after a hearing
as hereinbefore provided, or of his own motion, shall have reduced
the tax or penalty or it shall have been established in a proceeding
under Article 78 of the Civil Practice Law and Rules of the State
of New York that such determination was erroneous or illegal.
B. All refunds shall be made out of moneys collected
under this article. An application for a refund, made as hereinbefore
provided, shall be deemed an application for the revision of any tax
or penalty complained of, and the Clerk-Treasurer may receive additional
evidence with respect thereto. After making his determination, the
Clerk-Treasurer shall give notice thereof to the person interested,
and he shall be entitled to an order to review such determination
under said Article 78, subject to the provision hereinbefore contained
relating to the granting of such an order.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The tax imposed by this article shall be charged
against and be paid by the utility and may be added as a separate
item to bills rendered by the utility to customers or others. Upon
request, the utility shall furnish a statement of the amount of tax
imposed by this article to its customers.
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Town/Village Attorney shall,
upon the request of the Clerk-Treasurer, bring an action to enforce
payment of the same. The proceeds of any judgment obtained in any
such action shall be paid to the Clerk-Treasurer. Each such tax and
penalty shall be a lien upon the property of the person liable to
pay the same, in the same manner and to the same extent that the tax
and penalty imposed by § 186-a of the Tax Law is made a
lien.
In the administration of this article, the Clerk-Treasurer
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary for the exercise of his
powers and the performance of his duties and to prescribe the form
of blanks, reports and other records relating to the administration
and enforcement of the tax, to take testimony and proofs, under oath,
with reference to any matter within the line of his official duty
under this article and to subpoena and require the attendance of witnesses
and the production of books, papers and documents.
A. Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Clerk-Treasurer
or any agent, clerk or employee of the Town/Village of East Rochester
to divulge or make known in any manner the amount of gross income
or gross operating income or any particulars set forth or disclosed
in any return under this article.
(1) The officer charged with the custody of such returns
shall not be required to produce any of them or evidence of anything
contained in them in any action or proceeding in any court, except
on behalf of the Town/Village of East Rochester in an action or proceeding
under the provisions of this article or on behalf of the State Tax
Commission in an action or proceeding under the provisions of the
Tax Law of the State of New York or on behalf of any party to any
action or proceeding under the provisions of this article, when the
returns or facts shown thereby are directly involved in such action
or proceeding, in either of which events the court may require the
production of and may admit in evidence so much of said returns or
of the facts shown thereby as are pertinent to the action or proceeding,
and no more.
(2) Nothing herein shall be construed to prohibit the
delivery to a person or his duly authorized representative of a copy
of any return filed by him, nor to prohibit the publication of statistics
so classified as to prevent the identification of particular returns
and the items thereof, nor the publication of delinquent lists showing
the names of persons who have failed to pay their taxes at the time
and in the manner provided for by this article, together with any
relevant information which, in the opinion of the Clerk-Treasurer,
may assist in the collection of such delinquent taxes, nor the inspection
by the Town/Village Attorney or other legal representatives of the
Town/Village of East Rochester of the return of any person who shall
bring action to set aside or review the tax based thereon or against
whom an action has been instituted in accordance with the provisions
of this article.
B. Any offense against the foregoing secrecy provisions
shall be punishable by a fine not exceeding $1,000 or by imprisonment
not exceeding one year, or both, and if the offender is an officer,
agent, clerk or employee of the Town/Village of East Rochester, he
shall be dismissed from office and shall be incapable of holding any
office or employment in the Town/Village of East Rochester for a period
of five years thereafter.
C. Notwithstanding any provisions of this article, the
Clerk-Treasurer may exchange with the chief fiscal officer of any
city or any other Town/Village in the State of New York information
contained in returns filed under this article, provided that such
city or other Town/Village grants similar privileges to the Town/Village
of East Rochester and provided that such information is to be used
for tax purposes only, and the Clerk-Treasurer shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Clerk-Treasurer
under this article shall be paid into the treasury of the Town/Village
and shall be credited to and deposited in the general fund of the
Town/Village.