[Adopted 5-21-1968 by L.L. No. 1-1968]
A.
A tax equal to 1% of its gross income or of gross
operating income, as the case may be, from and after July 1, 1968,
is hereby imposed upon every utility doing business in the Village
of Carthage.
B.
This tax shall have application only within the territorial
limits of the Village of Carthage and shall be in addition to any
and all other taxes. Such tax shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the
Village of Carthage, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
As used in this article, the following terms
shall have the meanings indicated:
Includes receipts received in or by reason of
any sale, conditional or otherwise (except sales hereinafter referred
to with respect to which it is provided that profits from the sale
shall be included in gross income), made or service rendered for ultimate
consumption or use by the purchaser in the Village of Carthage, including
cash, credits and property of any kind or nature (whether or not such
sale is made or such service is rendered for profit), without any
deduction therefrom on account of the cost of the property sold, the
cost of materials used, labor or services or other costs, interest
or discount paid or any other expense whatsoever; also profits from
the sale of securities; also profits from the sale of real property
growing out of the ownership or use of or interest in such property;
also profit from the sale of personal property (other than property
of a kind which would properly be included in the inventory of the
taxpayer if on hand at the close of the period for which a return
is made); also receipts from interest, dividends and royalties, derived
from sources within the Village of Carthage other than such as are
received from a corporation, a majority of whose voting stock is owned
by the taxpaying utility, without any deduction therefrom for any
expenses whatsoever incurred in connection with the receipt thereof;
also profits from any transaction (except sales for resale and rentals)
within the Village of Carthage whatsoever.
Notwithstanding any other provisions of this
article or of § 186-a of the Tax Law of the State of New
York, the words, "gross income" shall include, in the case of a utility
engaged in selling telephony or telephone service, only receipts from
local exchange service wholly consummated within the Village of Carthage,
and, in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Carthage.
Includes receipts received in or by reason of any sale, conditional
or otherwise, made for ultimate consumption or use by the purchaser
of gas, electricity, steam, water, refrigeration, telephony or telegraphy,
or in or by reason of the furnishing for such consumption or use of
gas, electric, steam, water, refrigerator, telephone or telegraph
service in the Village of Carthage, including cash, credits and property
of any kind or nature, without any deduction therefrom on account
of the cost of the property sold, the cost of materials used, labor
or services or other costs, interest or discount paid or any other
expenses whatsoever.
Persons, corporations, companies, associations, joint-stock
associations, estates, assignee of rents, any person acting in a fiduciary
capacity or any other entity and persons, their assignees, lessees,
trustees or receivers appointed by any court whatsoever or by any
other means, except the state, municipalities, political and civil
subdivisions of the state or municipality, public districts and corporations
and associations organized and operated exclusively for religious,
charitable or educational purposes, no part of the net earnings of
which inures to the benefit of any private shareholder or individual.
Includes every person subject to the supervision of the State
Department of Public Service, except persons engaged in the business
of operating on the public highways of this state one or more omnibuses,
having a seating capacity of more than seven persons, and persons
engaged in the business of operating or leasing sleeping and parlor
railroad cars or of operating railroads other than street surface,
rapid transit, subway and elevated railroads, and also includes every
person (whether or not such person is subject to such supervision)
who sells gas, electricity, steam, water, refrigeration, telephony
or telegraphy, delivered through mains, pipes or wires, or who furnishes
gas, electric, steam, water, refrigerator, telephone or telegraph
service, by means of mains, pipes or wires, regardless of whether
such activities are the main business of such person or are only incidental
thereto or whether use is made of the public streets.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Village
Treasurer may require, and such records shall be preserved for a period
of three years, except that the Village Treasurer may consent to their
destruction within that period or may require that they be kept longer.
Every utility subject to tax hereunder shall
file annually, on or before the 25th day of February, a return for
the 12 consecutive months ending December 31 preceding such return
date or any portion thereof for which the tax imposed hereby is effective.
The return shall state the gross income or gross operating income
for the period covered. Returns shall be filed with the Village Treasurer
on a form to be furnished by him for such purpose and shall contain
such other date, information or matter as the Village Treasurer may
require to be included therein. Notwithstanding the foregoing provisions
of this subdivision, any utility whose average gross income or average
gross operating income, as the case may be, for the aforesaid three-month
period is less than $1,500 may file a return annually on June 25 for
the 12 preceding calendar months, and the Village Treasurer may require
any utility 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 a
certification by the head of the utility making the same, or of the
owner or of a co-partner 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 Village 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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the Village Treasurer, or
if no return is made for any period, the Village 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 indices
or otherwise. The Village Treasurer shall give notice of such determination
to the person liable for such tax. Such determination shall finally
and irrevocably fix such tax, unless the person against whom it is
assessed shall, within one year after the giving of notice of such
determination, apply to the Village Treasurer for a hearing or unless
the Village Treasurer, of his own motion, shall reduce the same. After
such hearing, the Village Treasurer shall give notice of his decision
to the person liable for the tax. Any final determination of the amount
of any tax payable hereunder shall be reviewable for error, illegality
or unconstitutionality or any other reason whatsoever by a proceeding
under Article 78 of the Civil Practice Law and Rules as provided by
§ 5-530 of the Village Law of the State of New York. Where
any tax imposed hereunder shall have been erroneously, illegally or
unconstitutionally collected and application for the refund thereof
duly made to the Village Treasurer and such officer 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
as provided by § 5-530 of the Village Law of the State of
New York.
Any notice authorized or required under the
provisions of this article may be given by mailing the same to the
person 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 section 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 Village Treasurer, if
satisfied that the delay was excusable, may remit all or any portion
of such penalty.
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 Village Treasurer or the court shall determine that such tax or
penalty or any portion thereof was erroneously or illegally collected,
the Village 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 Village Treasurer. However, no refund shall be made of a tax
or penalty paid pursuant to a determination of the Village Treasurer,
as hereinbefore provided, unless the Village 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
in the manner provided by § 5-530 of the Village Law of
the State of New York that such determination was erroneous or illegal.
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 Village Treasurer may receive additional evidence with
respect thereto. After making his determination, the Village Treasurer
shall give notice thereof to the person interested, and he shall be
entitled to commence a proceeding to review such determination as
provided by § 5-530 of the Village Law.
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.
Whenever any person shall fail to pay any tax
or penalty imposed under the provisions of this article, the Village
Attorney shall, upon the request of the Village 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 Village Treasurer.
In the administration of this article, the Village
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, records, papers and documents.
