[Adopted 12-9-1991 by L.L. No. 1-1991]
This article shall be known as the "Utility Tax Law of the Village of
Newark Valley."
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, 1992,
there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Newark Valley 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 the Transportation Law.
[Amended 10-3-1994 by L.L. No. 1-1994]
B. A tax equal to 1% of the gross operating income of every
other utility doing business in the Incorporated Village of Newark Valley
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
A.
Includes:
(1)
In the case of a utility engaged in selling telephone or telephone service,
only receipts from local exchange service wholly consummated within the Village.
(2)
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within the Village.
B.
The words "gross income," in the case of any utility other than described in Subsection
A of this definition, shall include:
(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 uses 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
expense 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 for 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 such reason of the furnishing of such consumption or use of gas, electric,
steam, water, refrigerator, telephone, or 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,
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, 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 to the benefit of 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 the Transportation
Law.
[Amended 10-3-1994 by L.L. No. 1-1994]
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 person 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 Newark Valley.
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 Newark Valley, notwithstanding that some acts are 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, 1992.
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 Clerk-Treasurer shall be the 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 the 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 Clerk-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 a tax return for the three-month periods commencing and ending
as follows: April 1 through June 30, July 1 through September 30, October
1 through December 31, and January 1 through March 31, said requirement to
include 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 three-month periods is less than $1,000
may file a return semiannually for the following periods: July 1 through December
31 and January 1 through June 30, including any period for which the tax imposed
hereby or any amendment thereof is effective. Any utility, whether subject
to tax under this article or not, may be required by the Village Clerk-Treasurer
to file an annual return. All returns hereunder shall be filed on or before
the 25th day of the month following the last month of the taxing period.
B. Contents. Returns shall be filed with the Village Clerk-Treasurer
on a form to be furnished by the Clerk-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 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 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 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 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 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
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 Clerk-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 Clerk-Treasurer
or if no return is made for any period, the Village Clerk-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 indexes 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 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 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 is 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.
A. 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 Clerk-Treasurer or the Court
shall determine that such tax or penalty or any portion thereof was erroneously
charged, the 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 Clerk-Treasurer. However, no refund shall be made
of a tax or penalty paid pursuant to a determination of the Village Clerk-Treasurer
as hereinbefore provided unless the Clerk-Treasurer, after a hearing as hereinbefore
provided or of 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.
B. 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 Clerk-Treasurer may receive any additional evidence with
respect thereto. After making his or her determination, the Village Clerk-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 Clerk-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 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 is 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 Clerk-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
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 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.