[Adopted 4-19-1971 by L.L. No. 1-1971]
[Amended 4-21-1997 by L.L. No. 1-1997]
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 June 1971 is hereby
imposed upon every utility doing business in the Village of Owego,
New York, which is subject to the supervision of the State Department
of Public Service and which has a gross income for 12 months ending
May 31 in excess of $500, except motor carriers and brokers, and a
tax equal to 1% of its gross operating income from and after June
1, 1971, is hereby imposed upon every other utility doing business
in the Village of Owego, New York, 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 Owego, New York, 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 Owego, New York, notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
As used in this article, the following words
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 the 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 of Owego, New York, 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 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 interest, dividends and royalties, derived
from sources within the Village of Owego, New York, 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 Village of Owego, New York, 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 of Owego, New York, and in the case of a utility engaged in
selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village of Owego, New York.
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, 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 of Owego, New York, 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 rent, 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, 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.
Includes every person subject to the supervision of the State
Department of Public Service, except persons engaged in the business
of operating on the public highways of this state one or more omnibuses
or leasing sleeping and parlor railroad cars or 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,
telephony or telegraphy, delivered through mains, pipes or wires,
or furnishes gas, electricity, steam, water, refrigeration, 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.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Village
Clerk-Treasurer may require or as the Village Board may require, and
such records shall be preserved for a period of three years, except
that the Village Clerk-Treasurer or the Village Board 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 February 25 a return for the 12 calendar
months ending December 31 or on or before March 25 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 Clerk-Treasurer on a form to be furnished by
him for such purpose and shall contain such other date, information
or matter as he may require to be included therein. The Village Clerk-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 him, and he may require any utility doing
business in the Village of Owego, New York, 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 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 Village of Owego 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 Clerk-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 Clerk-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
Village Clerk-Treasurer for a hearing or unless the Village Clerk-Treasurer,
of his own motion, shall reduce the same. After such hearing, the
Village Clerk-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 be first deposited
with the Village Clerk-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 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
persons 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 Village Clerk-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 Clerk-Treasurer or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, 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 Village Clerk-Treasurer, after a hearing as hereinbefore
provided or of his own motion, shall have reduced the tax or penalty
or if 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 Village
Clerk-Treasurer may receive additional evidence with respect thereto.
After making his determination, the Village Clerk-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 of the State of New York, subject
to the provision 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 Village Attorney shall, upon
the request of the Village Board, 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.
In the administration of this article, the Village
Clerk-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 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
Clerk-Treasurer or any agent, clerk or employee of the Village of
Owego, New York, 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 Owego,
New York, 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
Clerk-Treasurer may assist in the collection of such delinquent taxes;
or the inspection by the Village Attorney or other legal representative
of the Village of Owego, New York, 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 Owego, New York, he shall
be dismissed from office and shall be incapable of holding any office
or employment for the Village of Owego, New York, for a period of
five years thereafter.
C.
Notwithstanding any provisions of this article, the
Village Clerk-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 of
Owego, New York, and provided that such information is to be used
for tax purposes only, and the Village Clerk-Treasurer shall, upon
request, furnish the State Tax Commission with any information contained
in such returns.
All taxes and penalties received by the Village
Clerk-Treasurer under this article shall be paid into the treasury
of the Village of Owego, New York, and shall be credited to and deposited
in the general fund of the Village.
