[Adopted 12-15-1997 by L.L. No. 12-1997]
This article shall be known as "Utility Tax."
Pursuant to the authority granted by Article
5, § 5-530, of the Village Law of the State of New York,
from and after January 1, 1998, there is hereby imposed:
A. A tax equal to one per centum of the gross income
of every utility doing business in the Incorporated Village of Tarrytown
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.
B. A tax equal to one per centum of the gross operating
income of every other utility doing business in the incorporated Village
of Tarrytown which has an annual gross operating income in excess
of $500.
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
Includes:
A.
In the case of a utility engaged in selling
telephone or telephone service, only receipts from local exchange
service wholly consummated within the Village.
B.
In the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village.
C.
In the case of any utility other than described in Subsections
A and
B hereof, includes:
(1)
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
for use by the purchaser in the Village, 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 material
used, labor or services or other costs, interest or discount paid,
or any other expenses whatsoever.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
(4)
Profits from the sale of personal property (other
than property of a kind which would properly be included in the inventory
of a taxpayer if on hand at the close of a period for which a return
is made).
(5)
Receipts from interest, dividends and royalties
derived from sources within the Village (other than such as are received
from a corporation, a majority of whose voting stock is owned by the
taxpaying utilities), without any deduction therefrom from any expenses
whatsoever incurred in connection with the receipt thereof.
(6)
Profits from any transaction (except sales for
resale and rentals) with the Village whatsoever.
GROSS OPERATING INCOME
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, telephone or telegraphy,
or in or by reason of the furnishing of such consumption or use of
gas, electric, steam water, refrigerator, telephone, telegraph service
in the Village, including cash, credit and property of any kind or
nature, without 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.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, co-partnerships, estates, assignee, or 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, 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 or benefits any private
shareholder or individual.
UTILITY
Includes:
A.
Every person subject to the supervision of the
State Department of Public Service, except:
(1)
Persons engaged in the business of operating
or leasing sleeping and parlor railroad cars.
(2)
Persons engaged in the business of operating
or leasing railroads other than street surface, rapid transit, subway
and elevated railroads.
(3)
Omnibus corporations subject to supervision
under Article 3-A of the Public Service Law.
B.
Every person 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 persons or are only incidental thereto, or of whether
use is made of the public streets.
This article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village
of Tarrytown.
B. Not apply and the tax shall not be imposed on any
transaction originating or consummated outside of the territorial
limits of the Village of Tarrytown, notwithstanding that some acts
be necessarily performed with respect to such transaction within such
limits.
C. Be in addition to any and all other taxes and fees
imposed by any other provisions of law.
D. Apply to all subject income received on and after
January 1, 1998.
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 shall be chief enforcement
officer of this article and shall make and be responsible for all
collections hereunder. He or she shall also have the power and authority
to make any rules or regulations or directives, not inconsistent with
law, which in his or her 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. All such rules, regulations and directives
shall be deemed a portion of this article.
A. Time of filing. Every utility subject to a tax hereunder
shall file on or before December 1 and June 1 a return for the six
calendar months preceding each return date, including any period for
which the tax imposed hereby or amendment thereof is effective. However,
any utility whose average gross income or gross average operating
income for the aforesaid six months period is less than $3,000 may
file a return annually on May 1 for the 12 calendar months preceding
each return date, including any period for which the tax imposed hereby
or any amendment thereof is effective. Any utility, whether subject
to tax under this law or not, may be required by the Village Treasurer
to file an annual return.
B. Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by the Treasurer for such purpose
and shall show thereon the gross income or gross operating income
for a period covered by the return and such other information, data
or matter as the Village 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 a co-partner 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 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 first day when the return
is required to be filed.
Any utility failing to file a return or a corrected
return, or to pay any tax or any portion thereof within the time required
by this law, shall be subject to a penalty of five per centum of the
amount of tax due, plus one per centum of such amount 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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
he or she may require at any time a further or supplemental return,
which shall contain any data that may be specified by him or her and,
if a corrected or sufficient return is not filed within 20 days after
the same is required by notice from the Treasurer, or, if no return
is made for any period, the Village Treasurer shall determine the
amount due from such information as he or she is able to obtain and,
if necessary, may estimate the tax on the basis of external indices
or otherwise. He or she shall give notice of such determination 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 such notice of such
final determination; provided, however, that any such proceeding under
this 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 by local law, ordinance or resolution, shall be first
deposited with the Village Treasurer 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, 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 utility
to which it is addressed. Any period of time which is determined according
to the provisions of this section by 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 the court shall determine that such tax or
penalty or any portion thereof was erroneously charged, 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 if the Village Treasurer
as hereinbefore provided, on his or her 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
may receive any additional evidence with respect thereto. After making
his or her determination, the Village Treasurer shall give notice
thereof to the person interested, and he or she 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, and he
or she 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 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 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,
and in order to further payment of the tax imposed hereby, the Village
Treasurer 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 or her.
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 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 law and penalty
imposed by § 186-a of the Tax Law is made a lien.
The invalidity of any provision of this article
shall not affect the validity of any other provision of this article
which can be given effect without such invalid provision.
This article shall take effect immediately upon
filing in the office of the Secretary of State.