[Adopted 6-15-1942 by L.L. No. 4-1942 (Ch.
142, Art. III of the 1981 Code)]
[Amended 6-23-1944 by L.L. No. 3-1944; 6-19-1945 by L.L. No.
1-1945; 6-10-1946 by L.L. No. 2-1946; 6-24-1947 by L.L. No.
3-1947; 5-24-1948 by L.L. No. 4-1948; 6-28-1949 by L.L. No.
1-1949]
By § 20-b of the General City Law, as added by Chapter 321 of the Laws of 1937 and as last amended by Chapter
479 of the Laws of 1945, cities are authorized to enact local laws imposing a tax such as is imposed by § 186-a of the Tax Law. Pursuant to such authority, this article is modeled upon said § 186-a. It is intended thereby and likewise by this article, enacted pursuant to the above-mentioned authority, to impose a tax on utility services whether rendered by utilities in the strict sense or not, and whether such services are in the main or incidental part of their business and regardless of whether the public streets are used in any manner. Accordingly, such a utility is defined for the purpose of the tax as including every person subject to the supervision of the Department of Public Service and every other person furnishing utility services. It is intended to include persons and corporations which are directly in competition with ordinary utilities, such as landlords and submeterers, who buy their services from other utilities and in turn resell such services. For that reason the tax is imposed on receipts from sales to ultimate consumers. Receipts from the sale of such utility services to submeterers are not taxed, but receipts of submeterers from their own customers are intended to be taxed. Any other construction would result in a complete exemption from taxation of utility services sold or furnished by this particular method. Furthermore, it is believed that submeterers have common characteristics that distinguish them from other businesses and justify the conclusion that the method, character and nature of their business, in this aspect, is substantially similar to the business of an ordinary utility and requires similar treatment for purposes of the tax. This conclusion is strongly fortified by the fact that such landlords and submeterers are in direct competition with ordinary utilities and hence should bear similar tax burdens in order to avoid inequality of treatment.
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
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 City of Port Jervis, 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 City of Port Jervis, 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 City of Port Jervis whatsoever.
GROSS OPERATING INCOME
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, refrigerator, telephone or telegraph
service in the City of Port Jervis, 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
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 means, except the state, municipalities, political
and civil subdivisions of the state or municipality, and public districts.
UTILITY
Includes every person subject to the supervision of either
division 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, 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 whether use is made of the public streets.
[Amended 6-23-1944 by L.L. No. 3-1944; 6-19-1945 by L.L. No.
1-1945; 6-10-1946 by L.L. No. 2-1946; 6-24-1947 by L.L. No.
3-1947; 5-24-1948 by L.L. No. 4-1948; 6-28-1949 by L.L. No.
1-1949; 6-27-1950 by L.L. No. 4-1950]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, a tax equal to 1%
of its gross income from and after July 1, 1937, is hereby imposed
upon every utility doing business in the City of Port Jervis which
is subject to the supervision of the State Department of Public Service,
which has a gross income for the 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 upon every other utility
doing business in the City of Port Jervis 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 City
of Port Jervis and shall be in addition to any and all other taxes
and fees imposed by any other provisions of law for the same period.
Such taxes shall not be imposed on any transaction originating or
consummated outside the territorial limits of the City of Port Jervis,
notwithstanding that some act be necessarily performed with respect
to such transaction within such limits.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the City
Clerk-Treasurer may require, and such records shall be preserved for
a period of three years, except that the City Clerk-Treasurer may
consent to their destruction within that period or may require that
they be kept longer.
[Amended 6-23-1944 by L.L. No. 3-1944; 6-19-1945 by L.L. No.
1-1945; 6-10-1946 by L.L. No. 2-1946; 6-24-1947 by L.L. No.
3-1947; 5-24-1948 by L.L. No. 4-1948; 6-28-1949 by L.L. No.
1-1949; 6-27-1950 by L.L. No. 4-1950]
Every utility subject to tax hereunder shall
file, 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 City Clerk-Treasurer
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the City Clerk-Treasurer
may require to be included therein. Notwithstanding the foregoing
provision of this section, any utility whose average gross income
or average gross operating income, as the case may be, for the aforesaid
three months' periods is less than one $1,500, may file a return annually
on June 25 for the 12 preceding calendar months, and the City Clerk-Treasurer
may require any utility doing business in the City of Port Jervis
to file an annual return, which shall contain any data specified by
the City Clerk-Treasurer, regardless of whether the utility is subject
to tax under this article. The City 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 the
City Clerk-Treasurer. Every return shall have annexed thereto an affidavit
of the head of the utility making the same, or of a copartner thereof,
or of a principal officer of the corporation, if such business be
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 City Clerk-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 City Clerk-Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the City Clerk-Treasurer,
or if no return is made for any period, the City 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 indices or otherwise. The City Clerk-Treasurer 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 City Clerk-Treasurer
for a hearing, or unless the City Clerk-Treasurer, of his own motion,
shall reduce the same. After such hearing, the City Clerk-Treasurer
shall give notice of his decision to the person liable for the tax.
The decision of the City Clerk-Treasurer 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 30 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 City 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.
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 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 the 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 City Clerk-Treasurer,
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 City Clerk-Treasurer or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the City 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 City Clerk-Treasurer. However,
no refund shall be made of a tax or penalty paid pursuant to a determination
of the City Clerk-Treasurer as hereinbefore provided unless the City
Clerk-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 City Clerk-Treasurer may receive
additional evidence with respect thereto. After making his determination,
the City 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, subject to the provisions 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 Corporation Counsel shall,
upon the request of the City 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 City 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 City
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 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 City Clerk-Treasurer
or any agent, clerk or employee of the City of Port Jervis 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 City of Port Jervis 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 City Clerk-Treasurer may assist in the
collection of such delinquent taxes, nor to prohibit the inspection
by the Corporation Counsel or other legal representatives of the City
of Port Jervis 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 six months, or both, and if the offender be an officer,
agent, clerk or employee of the City of Port Jervis, he shall be dismissed
from office and shall be incapable of holding any office or employment
in the City of Port Jervis for a period of five years thereafter.
C. Notwithstanding any provisions of this section, the
City Clerk-Treasurer may exchange with the chief fiscal officer of
any other City in the State of New York information contained in returns
filed under this article, provided such other City grants similar
privileges to the City of Port Jervis, and provided such information
is to be used for tax purposes only, and the City Clerk-Treasurer
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the City
Clerk-Treasurer under this article shall be credited to and deposited
by him in the general fund of the City.