[Adopted 3-22-1983 by L.L. No. 2-1983]
Pursuant to the authority granted by § 5-530
of the Village of the State of New York, a tax equal to 1% of its
gross income from and after the 23rd day of March 1983 is hereby imposed
upon every utility doing business in the Village which is subject
to the supervision of the State Department of Public Service and which
has a gross income for the 12 months ending March 31 in excess of
$500, except motor carriers or brokers subject to such supervision
under Article 3-B of the Public Service Law;[1] and a tax equal to 1% of its gross operating income from
and after the 23rd day of March 1983 is hereby imposed upon every
other utility doing business in the Village which has a gross operating
income for the 12 months ending March 31 in excess of $500, which
taxes shall have application only within the territorial limits of
the Village 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, notwithstanding that some act be
necessarily performed with respect to such transaction within such
limits.
[1]
Editor's Note: Article 3-B of the Public Service
Law, Provisions Relating to Motor Carriers Transporting Property for
Compensation, was repealed effective 3-1-1971 by L. 1970, c. 267,
§ 5. See now Article 7 of the Transportation Law.
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, 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 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 profits 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 other
than those 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 Village whatsoever; provided,
however, that 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, and in the case of a utility engaged in selling telegraphy
or telegraph service, only receipts from transactions wholly consummated
within the Village.
Includes receipts 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, refrigeration, telephone or telegraph
service in the Village, 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, copartnerships, estates, assignees 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 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.
Treasurer of the Village of Rye Brook.
Includes every person subject to the supervision 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 sells gas, electricity, steam,
water, refrigeration, telephone or telegraphy, delivered through mains,
pipes or wires, or furnishes gas, electric, steam, water, refrigeration,
telephone or telegraphy 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 of whether use is made of
the public streets.
The Village of Rye Brook.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Treasurer may consent to their destruction
within that period or may require that they be kept longer.
A.
Every utility subject to tax hereunder shall file
on or before June 25, September 25, December 25 and March 25 of every
calendar year, commencing June 25, 1983, a return for the three calendar
months preceding 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.
B.
Every return shall state the gross income or gross
operating income for the period covered thereby. Returns shall be
filed with the 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 Treasurer, in order to
ensure 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 the Treasurer, and he may require any utility doing business in
the Village to file a 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 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 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 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 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 indexes 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 Treasurer for
a hearing or unless the Treasurer, of his own motion, shall reduce
the same. After such hearing, the 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 Law and Rules
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 penalties thereon, if any, shall
first be deposited with the Treasurer and an undertaking filed with
him, in such amount and with such securities as a Justice of the Supreme
Court shall approve, to the effect that if such proceeding is dismissed
or the tax confirmed, the applicant will pay all costs and changes
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, cost 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. Except in the case of a willfully false or fraudulent
return with intent to evade the 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 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 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 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 Treasurer or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected,
the Treasurer of such Village 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 Treasurer. However, no refund shall be made
of a tax or penalty paid pursuant to a determination of the Treasurer
as hereinbefore provided unless the 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 Law and Rules 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 Treasurer
may receive additional evidence with respect thereto. After making
his determination, the 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 of the Civil Practice Law
and Rules, subject to the provision hereinbefore contained relating
to the granting of such an order.
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Village Attorney shall, upon
the request of the 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 Treasurer of said Village. 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.
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 the administration of this article, the Treasurer
shall have the 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 ad 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 Treasurer,
or any agent, Clerk or employee of the Village, 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 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.
B.
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 person 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 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 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.
C.
Any offense against the foregoing secrecy provisions
of this article shall be punishable by a fine not exceeding $500 or
by imprisonment not exceeding three months or both, and if the offender
is an officer, agent, clerk or employee of the Village, he shall be
dismissed from office and shall be ineligible to hold any office or
employment in the Village for a period of two years thereafter.
D.
Notwithstanding any provisions of this article, the
Treasurer may exchange with the chief fiscal officer of any city or
any other Village in the State of New York information contained in
returns filed under this article, provided that such city or other
Village grants similar privileges to the Village and provided that
such information is to be used for tax purposes only. The Treasure
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the 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.