[Adopted 6-28-1940 by L.L. No. 4-1940;
amended by L.L. No. 2-1949]
[Last amended by L.L. No. 1-1950]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, an annual tax equal
to 1% of its gross income for the period from July 1, 1950, to June
30, 1951, and to continue thereafter for a similar period each year
until otherwise changed by law, is hereby imposed upon every utility
doing business in the City of Geneva which is subject to the supervision
of the State Department of Public Service which has a gross income
for the 12 months ending May 31 in excess of $500, except motor carriers
or brokers subject to such supervision under Article 3-b of the Public
Service Law, and a tax equal to 1% of its gross operating income is
hereby imposed for the same period upon every other utility doing
business in the City of Geneva which has a gross income for the 12
months ending May 31 in excess of $500, which taxes shall have application
only within the territorial limits of the City of Geneva, and shall
be in addition to any and all other taxes and fees imposed by any
other provision of the law for the same period. Such taxes shall not
be imposed on any transaction originating or consummated outside of
the territorial limits of the City of Geneva, notwithstanding that
some acts be necessarily performed with respect to such transactions
within such limits.
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
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 to any person or persons
for ultimate consumption or use by them or the purchaser in the City
of Geneva, 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 the materials used, labor or services
or other cost, 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 interests, dividends and royalties,
derived from sources within the City of Geneva, 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,
and also profits from any transaction (except sales for resale and
rentals) within the City of Geneva whatsoever.
GROSS OPERATING INCOME
Receipts received in or by reason of any sale, conditional
or otherwise, made to any person or persons for ultimate consumption
or used by them or the purchaser of gas, electricity, steam, water,
refrigeration, telephony or telegraphy, or in or by reason of the
furnishing to such person or persons for such consumption or use of
gas, electric, steam, water, refrigeration, telephone or telegraph
service in the City of Geneva, 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, interests or discount paid, or any other
expenses whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, 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 and
public districts.
UTILITY
Includes every person subject to the supervision of either
division of the State Department of Public Service, except 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 shall engage in the business of selling gas, electricity, steam,
water, refrigeration, telephony or telegraphy, delivered through mains,
pipes or wires, or of furnishing gas, electric, steam, water, refrigerator,
telephone or telegraph service, by means of mains, pipes or wires.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the City
Comptroller may require, and such records shall be preserved for a
period of three years, except that the City Comptroller may consent
to their destruction within that period or may require that they be
kept longer.
[Last amended by L.L. No. 1-1950]
Every utility subject to tax hereunder shall
file, on or before September 25, December 25, March 25 and June 25,
a return for the three calendar months preceding each such return
date, including any period for which the tax imposed hereby or by
any amendment hereof is effective, each of which returns shall state
the gross income or gross operating income for the period covered
by each such return. Returns shall be filed with the City Comptroller
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the City Comptroller shall
require to be included therein. Notwithstanding the foregoing provisions
of this section, any utility whose average gross income or average
gross operating income, as the case may be, for the aforesaid three
months' period is less than $1,500 may file its return for such periods
on June 25 of each year. The City Comptroller may require at any time
a further or supplemental return, which shall contain any data that
may be specified by the City Comptroller. 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 be 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 City Comptroller 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
be insufficient or unsatisfactory to the City Comptroller and if a
corrected or sufficient return is not filed within 20 days after the
same is required by notice from the City Comptroller, or if no return
is made for any period, the City Comptroller 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 City Comptroller 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 30 days after the giving of notice of such
determination, apply to the City Comptroller for a hearing or unless
the City Comptroller of his own motion shall reduce the same. After
such hearing, the City Comptroller shall give notice of his decision
to the person liable for the tax. The decision of the City Comptroller
may be reviewed by certiorari, if application therefor is made within
30 days after giving of notice of such decision. An order of certiorari
shall not be granted unless the amount of any tax sought to be reviewed,
with penalties thereon, if any, shall be first deposited with the
City Comptroller 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 order be dismissed or the tax confirmed,
the applicant for the order will pay all costs and charges which may
accrue in the prosecution of the certiorari proceeding, or at the
option of the applicant, such undertaking may be in a sum sufficient
to cover the tax penalties, costs and charges aforesaid, in which
event the applicant shall not be required to pay such tax and penalties
as a condition precedent to the granting of such order.
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 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 City Comptroller, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
If, within one year from the payment of any
tax or penalty, the payer thereof shall make application for a refund
thereof and the City Comptroller or the court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected, the City Comptroller 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 City Comptroller. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
City Comptroller as hereinbefore provided unless the City Comptroller
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 certiorari proceeding that such determination was erroneous or
illegal. All refunds shall be made out of moneys collected under this
article. Any 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 City Comptroller may receive additional evidence
with respect thereto. After making his determination, the City Comptroller
shall give notice thereof to the person interested, and shall be entitled
to a certiorari order to review such determination, subject to the
provisions hereinbefore contained relating to the granting of such
an order.
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 by this article, the City Attorney shall, upon
the request of the City Comptroller, bring an action to enforce payment
of the same. The proceeds of any judgment obtained in any such action
shall be paid to the City Comptroller. 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 City
Comptroller 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 the proper judicial order
or as otherwise provided by law, it shall be unlawful for the City
Comptroller or any agent, clerk or employee of the City of Geneva
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. 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 City of Geneva 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. 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, or 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 City Comptroller
may assist in the collection of such delinquent taxes; or the inspection
by the City Attorney, or other legal representatives, of the City
of Geneva 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 action.
B. Any offense against the foregoing secrecy provisions
shall be punishable by a fine not exceeding $1,000 or by imprisonment
not exceeding six months, or both, and if the offender be an officer,
agent, clerk or employee of the City of Geneva, he shall be dismissed
from office and shall be incapable of holding any office or employment
in the City of Geneva for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the
City Comptroller may exchange with the chief fiscal officer of any
other city in the State of New York information contained in returns
filed under this article, provided that such other city grants similar
privileges to the City of Geneva and provided that such information
is to be used for tax purposes only and the City Comptroller shall,
upon request, furnish the State Tax Commission with any information
contained in such returns.
[Last amended by L.L. No. 2-1949]
All taxes and penalties received by the City
Comptroller for taxes heretofore or hereinafter imposed under this
article shall be credited to and deposited by him in the general city
fund.