[Adopted 1-6-1976 as Art. II of Ch. 72 of the 1976 Code]
[Amended 11-10-1999 by L.L. No. 3-1999]
Pursuant to the authority granted by Article
5, § 5-530 of the Village Law of the State of New York,
from, on and after December 1, 1967, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Flower Hill, which utility
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
§ 150 et seq. of the Transportation Law.
B. A tax equal to 1% of the gross operating income of
every other utility doing business in the Incorporated Village of
Flower Hill, which utility has an annual gross operating income in
excess of $500.
[Amended 11-10-1999 by L.L. No. 3-1999]
Words and phrases as used in this article, unless
otherwise noted, shall have the same meaning as ascribed to them in
§ 186-a of the Tax Law.
This article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village
of Flower Hill.
B. Not apply to and the tax shall not be imposed on any
transaction originating or consummated outside of the territorial
limits of the Village of Flower Hill, notwithstanding that some act
be necessarily performed with respect to such transaction within such
limits.
C. Be in addition to any and all other taxes.
D. Apply to all subject income received on and after
November 1, 1967.
All revenues resulting from the imposition of
the tax imposed by this article shall be paid into the treasury of
the Village and shall be credited to and deposited in the general
fund of the Village.
The Village Treasurer or Village Clerk-Treasurer
shall be the chief enforcement officer of this article and shall make
and be responsible for all collections hereunder. He 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 Village Treasurer or Village
Clerk-Treasurer. All such rules, regulations and directives shall
be deemed a portion of this article.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Village
Treasurer or Village Clerk-Treasurer may require, and such records
shall be preserved for a period of three years unless the Village
Treasurer or Village Clerk-Treasurer directs otherwise.
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.
However, any utility whose average gross income or gross operating
income for the aforesaid six months' period is less than $3,000 may
file a return annually on June 25 for the 12 calendar months preceding
each return date, including any period for which the tax imposed hereby
or any amendment hereof is effective. Any utility, whether subject
to tax under this law or not, may be required by the Village Treasurer
or Village Clerk-Treasurer to file an annual return.
B. Contents. Returns shall be filed with the Village
Treasurer or Village Clerk-Treasurer on a form to be furnished by
him for such purpose and shall show thereon the gross income or gross
operating income for the period covered by the return and such other
information, data or matter as the Village Treasurer or Village Clerk-Treasurer
may require to be included therein. Every return shall have annexed
thereto a certification by the head of the utility making the same,
or of the owner or of a copartner thereof or of a principal corporate
officer 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 or
Village Clerk-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 falling 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, except the first month, after such return was required to
be filed or such tax became due; but the Village Treasurer or Village
Clerk-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 Village Treasurer or
Village Clerk-Treasurer, he may require, at any time, a further or
supplemental return which shall contain any data that may be specified
by him; 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 Village Treasurer or Village Clerk-Treasurer
shall determine the amount 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. He shall give notification of such
determination to the utility liable for such tax. Such determination
shall finally and irrevocably fix such tax unless the utility against
which it is assessed shall, within one year after the giving of notice
of such determination, apply to him for a hearing or unless the Village
Treasurer or Village Clerk-Treasurer, of his own motion, shall reduce
the same. After such hearing, he shall give notice of his decision
to the utility liable for such 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 if the proceeding
is commenced within 90 days after the giving of notice of such final
determination; provided, however, that any such proceeding under said
Article 78 shall not be instituted unless the amount of any tax sought
to be reviewed, with such interest and penalties thereon as may be
provided for by local law ordinance or resolution, shall be first
deposited and an undertaking filed, 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.
Any notice authorized or required under the
provisions of this article may be given by mailing the same to the
utility for which it is intended, in a postpaid envelope, addressed
to such utility at the address given by it in the last return filed
by it under this article or, if no return has been filed, to such
address as may be obtainable. The mailing of such notice shall be
presumptive evidence of the receipt of the same by the utility to
which addressed. Any period of time which is determined, according
to the provisions of this section, by the giving of notice shall commence
to run from the date of mailing of such notice.
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 Village Clerk-Treasurer or the court shall
determine that such tax or penalty or any portion thereof was erroneously
or illegally collected, the Village Treasurer or Village 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 Village
Treasurer or Village Clerk-Treasurer. However, no refund shall be
made of a tax or penalty paid pursuant to a determination of the Village
Treasurer or Village Clerk-Treasurer, as hereinbefore provided, unless
the Village Treasurer or Village 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
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 Village
Treasurer or Village Clerk-Treasurer may receive additional evidence
with respect thereto. After making his determination, the Village
Treasurer or Village Clerk-Treasurer shall give notice thereof to
the person interested, and he 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 Village Treasurer or Village
Clerk-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
Village Treasurer or Village Clerk-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 willfully 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, however, 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 Village Treasurer or Village Clerk-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.
[Amended 11-10-1999 by L.L. No. 3-1999]
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Village Attorney shall, upon
the request of the Village Treasurer or Village 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 Village Treasurer
or Village 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.