[Adopted 7-20-1971 by L.L. No. 1-1971]
A. It is hereby declared to be the policy of the Incorporated
Village of Oyster Bay Cove, (herein referred to as "the Village") to impose
a tax on gross income or gross operating income of utilities arising from
transactions originating and consummated within the territorial limits of
the Village, as authorized by § 5-530 of the Village Law of the
State of New York.
B. In connection with, and in furtherance of this policy,
this Village shall levy and collect a tax such as was, and is, imposed by,
and not inconsistent with, § 186-a of the Tax Law of the State of
New York as the same was in effect on January 1, 1959, except that the rate
thereof shall not exceed 1% of gross income or of gross operating income of
the utilities affected by this article.
It is the purpose of this article that the affected utility companies
providing essential services to residents of the Village on a noncompetitive
basis shall share in the burden of defraying governmental costs with the residents
of the Village from whom said companies acquire income and profits.
The definitions set forth in § 186-a of said Tax Law as modified
therein, and in § 5-530 of said Village Law in so far as the same
are applicable hereto shall apply, as appropriate, to this article, and in
addition the following terms shall have the meanings indicated:
VILLAGE
The incorporated Village of Oyster Bay Cove.
Except as hereinafter provided, all the provisions of § 186-a
of the Tax Law of the State of New York, so far as the same are made applicable,
with such limitations as are set forth in § 5-530 of said Village
Law, and such modifications as may be necessary in order to adapt such taxes
to local conditions, shall apply to the taxes authorized by and shall be a
part of this article.
Pursuant to the authority granted by § 5-530 of the Village
Law of the State of New York, from on and after June 1, 1971, or as soon thereafter
as this article shall become effective, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Village which is subject to the supervision of the New
York State Department of Public Service and which has an annual gross income
in excess of $500 except motor carriers or brokers subject to such supervision
under Article 3-B of the Public Service Law and except persons providing cable television service.
B. A tax equal to 1% of the gross operating income of every
other utility doing business in the Village which has an annual gross operating
income in excess of $500 except persons providing cable television service.
This law and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village;
B. Not apply and the tax shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the Village
notwithstanding that some act be necessarily performed with respect to such
transactions within such limits;
C. Be in addition to any and all other taxes; and
D. Apply to all subject income received on and after June
1, 1971, or on or after this article shall become effective, whichever is
later.
All revenues resulting from the imposition of the tax imposed by this
article shall be paid to the Treasurer of the Village, who is the chief fiscal
officer of the Village, and shall be credited to and deposited in the general
fund of the Village.
The Treasurer shall be the chief enforcement officer of this article
and shall make and be responsible for all collections hereunder. The Treasurer
shall also have the power and authority to make any rules or regulations or
directives, not inconsistent with law, which, in his discretion, are reasonably
necessary to facilitate the administration of this article and the collection
of the taxes imposed hereby. Copies of all such rules and regulations and
directives, as may from time to time be promulgated, shall be sent by registered
mail to all utilities subject to this article which register as such with
the Treasurer. All such rules, regulations and directives shall be deemed
a part of this article.
A. Time of filing. Every utility subject to a tax hereunder
shall file on or before December 25 and June 25 a return for the six calendar
months preceding each return date including any period for which the tax imposed
hereby or any amendment hereof is effective.
B. Returns. Returns shall be filed with the Treasurer in
such form as is used by the filing utility for other municipalities in Nassau
County, New York, or as the Treasurer shall otherwise require, and shall show
as a minimum, the gross taxable income or operating income, as the case may
be, for the period covered by the return and such other information or data
as the Treasurer may from time to time require. Every return shall be certified
as true by a duly authorized and qualified officer of the utility filing the
return with a statement that the certification is made as if under oath and
subject to penalties for perjury.
C. Time of payment. At the time of filing a return as required
by this article, each utility so required to file a return shall pay to the
Treasurer the tax imposed hereby for the period covered by such return. Such
tax shall be due and payable at the time of the filing of the return or, if
a return is not filed when due, on the last day on which the return is required
to be filed.
Any utility subject to the tax hereunder failing to file a return or
a 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 Treasurer, if satisfied that the delay was excusable,
may remit all or any portion of such penalty.
The tax imposed by this article shall be charged against and be paid
by the utility and shall not be added as a separate item to bills rendered
by the utility to customers or others but shall constitute a part of the operating
costs of such utility.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Treasurer, or if no return is made, or if no tax
is paid, the Treasurer shall proceed, and shall have the remedies, as set
forth in Subdivision 6 of § 186-a of said Tax Law in the same manner
as if the Treasurer were the "Tax Commission" in said Subdivision 6.
Any notice authorized or required under this article may be given in
the manner and with the effect set forth in Subdivision 8 of § 186-a
of said Tax Law.
If, within one year from the giving of notice of any determination or
assessment of any tax or penalty, the person liable for the tax shall make
application for a refund thereof and the Treasurer or the court shall determine
that such tax or penalty or any portion thereof was erroneously or illegally
collected, the 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
Treasurer. However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Treasurer as hereinbefore provided unless the Treasurer,
after a hearing as hereinabove provided, or of his own motion, shall have
reduced the tax or penalty or it shall have been established in a proceeding
in the manner provided in the Civil Practice Law and Rules that such determination
was erroneous or illegal. 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 Treasurer may receive additional evidence with respect
thereto. After making his determination the Treasurer shall give notice thereof
to the person interested, who shall be entitled to commence a proceeding to
review such determination, in accordance with the provisions of the following
section hereof.
Where any tax imposed hereunder shall have been erroneously, illegally
or unconstitutionally collected and application for the refund thereof duly
made to the Treasurer, and he shall have made a determination denying such
refund, such determination shall be reviewable by a proceeding under Article
78 of the Civil Practice Law and Rules; provided, however, that such proceeding
is instituted within 90 days after the giving of the notice of such denial,
that a final determination of tax due was not previously made and that an
undertaking is filed with the Treasurer in such amount and with such sureties
as a justice of the Supreme Court shall approve to the effect that if such
proceeding be dismissed or the tax confirmed, the petitioner will pay all
costs and charges which may accrue in the prosecution of such proceeding.
Except in the case of a wilfully false or fraudulent return with the
intent to evade the tax, no assessment or additional tax shall be made with
respect to taxes imposed under this article, after the expiration of more
than three years from the date of filing of a return, provided that, where
no return has been filed as required hereby, the tax may be assessed at any
time.
In addition to any other powers herein given the Treasurer, and in order
to further ensure payment of the tax imposed hereby, he shall have the power
to:
A. Prescribe the form of all reports and returns required
to be made hereunder;
B. Take testimony and proofs, under oath, with reference
to any matter hereby entrusted to him;
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
Whenever any person shall fail to pay any tax or penalty imposed by
this article, the Village Attorney shall, upon the request of the Treasurer,
bring an action to enforce payment of same. The proceeds of any judgment obtained
in any such action shall be paid to the 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 said Tax Law is made a lien.