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 June 1, 1958, is hereby imposed upon every utility
doing business in the Village of Pleasantville, New York, which is
subject to the supervision of the State Department of Public Service,
which has a gross income for 12 months ending May 31 in excess of
$500, except motor carriers or brokers subject to such supervision
under Article 3-B of the Public Service Law, and a tax equal to 1% of its gross operating income is
hereby imposed from June 1, 1958, upon every other utility doing business
in the Village of Pleasantville, New York, which has a gross operating
income for 12 months ending May 31 in excess of $500, which taxes
shall have application only within the territorial limits of the Village
of Pleasantville 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 Pleasantville, notwithstanding
that some acts be necessarily performed with respect to such transaction
within such limits.
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
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 Pleasantville, 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 Pleasantville, 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 Pleasantville, 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 Pleasantville, 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 Pleasantville,
New York.
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, telephony or telegraphy
or in or by reason of the furnishing for such consumption or use of
gas, electricity, steam, water, refrigeration, telephony or telegraph
service in the Village of Pleasantville, 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.
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, municipalities,
political and civil subdivisions of the state or municipality and
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 and excepting a corporation organized and
operated exclusively for the purpose of leasing from a city in this
state a waterworks system designed to supply water at cost to users
thereof for discharge, either before or after industrial use, into
a river within such city in order to improve the flow and condition
of such river and thereby to provide a means to relieve such river
from pollution.
UTILITY
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
having a seating capacity of more than seven persons and 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, telephony or telegraphy,
delivered through mains, pipes or wires, or 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.
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 of February, a return for the
12 calendar months ending December 31 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, including any
period for which the tax imposed hereby or by any amendment hereof
is effective each of which returns shall state the gross income or
gross operating income for the period covered by each such return.
Returns shall be filed with the Village Treasurer on a form to be
furnished by him or her for such purpose and shall contain such other
data, information or matter as he or she may require to be included
therein. Notwithstanding the foregoing provisions of this section,
any utility whose average gross income or average operating income,
as the case may be, for the aforesaid three-month period is less than
$1,500 may file its return for such period on February 25. The Village
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 Village Treasurer. Every return
shall have annexed thereto an affidavit of the head of the utility
making the same or of the owner or of the copartner thereof or of
the principal officer of the corporation to the effect that the statements
contained therein are true.
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 her or if no return
is made for any period, the Village Treasurer shall determine the
amount of tax 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 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 or her own motion, shall reduce the same. After
such hearing, the Village Treasurer shall give notice of his or her
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 Treasurer and an undertaking filed
with him or her, 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
or, at the option of the petitioner, such undertaking may be in a
sum sufficient to cover the tax, interest, penalties, costs and charges
aforesaid, in which event the petitioner 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 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 or her in the last return
filed by him or her 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 such
penalty.
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 or her 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 Village Treasurer may receive additional evidence
with respect thereto. After making the determination, the Village
Treasurer shall give notice thereof to the person interested, and
he or she 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 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.
[Amended 4-9-2001 by L.L. No. 3-2001]
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 or her powers and the performance of his or her 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 or her official duty under this article and to subpoena and require
the attendance of witnesses and the production of books, papers and
documents. The Village Treasurer need not reside within the incorporated
limits of the Village of Pleasantville, but must reside within the
State of New York.
All taxes and penalties received by the Village
Treasurer under this article shall be paid into the treasury of the
Village of Pleasantville, New York, and shall be credited to and deposited
in the general fund of the Village.