[Adopted 4-25-1951 by L.L. No. 2-1951 (Ch. 46 of the 1968 Code)]
[Amended 4-2-1971[1]]
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 May 1950 is hereby
imposed upon every utility doing business in the Village of Fairport
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 Transportation Law § 240, and a tax equal
to 1% of its gross operating income from and after the first day of
May 1950 is hereby imposed upon every other utility doing business
in the Village of Fairport which has a gross operating income for
the 12 months ending May 31 in excess of $500, which taxes shall have
application only within the territorial limits of the Village of Fairport
and shall be in addition to any and all other taxes and fees imposed
by any other provision of law. Such taxes shall not be imposed on
any transaction originating or consummated outside of the territorial
limits of the Village of Fairport, notwithstanding that some act be
necessarily performed with respect to such transaction within such
limits.
The terms used in this article shall be defined as provided
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 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 March, a return for the
12 calendar months preceding such return date or any portion thereof
for which the tax imposed hereby is effective; provided, however,
that in lieu of the annual return required by the foregoing provisions,
any utility may file quarterly, on or before September 25, December
25, March 25 and June 25, a return for the three calendar months preceding
each such return date, and in the case of the first such return, for
all preceding calendar months during which the tax imposed hereby
was effective. Every return shall state the gross income or gross
operating income for the period covered thereby. Returns shall be
filed with the Village 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 Village Treasurer,
in order to insure 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 Village of Fairport 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 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 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.
A.
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 him, or if no return is
made for any period, the Village of Fairport 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. He 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 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. Such decision may be reviewed by a proceeding under Article
78 of the Civil Practice Act of the State of New York if application
therefor is made within 90 days after the giving of notice of such
decision. An order to review such decision shall not be granted unless
the amount of any tax sought to be reviewed, with interest and penalty
thereon, if any, shall be first deposited with the Village 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 be 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 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
person for whom it is intended, in a post-paid 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 Village 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.
If, within one year from the payment of any
tax or penalty, the payer thereof 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 under Article 78 of the Civil Practice Act 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 an order to review such determination under said Article
78, 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 may 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 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. 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 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, papers and documents.
A.
Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Village
Treasurer or any agent, clerk or employee of the Village of Fairport
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 Village of Fairport 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 Village Treasurer
may assist in the collection of such delinquent taxes; or the inspection
by the Village Attorney or other legal representatives of the Village
of Fairport 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 be an officer,
agent, clerk or employee of the Village of Fairport he shall be dismissed
from office and shall be incapable of holding any office or employment
in the Village of Fairport for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the
Village Treasurer may exchange with the chief fiscal officer of any
city or any village in the State of New York information contained
in returns filed under this article, provided such city or other village
grants similar privileges to the Village of Fairport, and provided
such information is to be used for tax purposes only, and the Village
Treasurer shall, upon request, furnish the State Tax Commission with
any information contained in such returns.
All taxes and penalties received by the Village
Treasurer under 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.
