[Adopted by L.L. No. 1-1968]
A.
Pursuant to the authority granted by § 6-640
of the Village Law of the State of New York:[1]
(1)
A tax equal to 1% of its gross income from and after
the first day of July 1968 is hereby imposed upon every utility doing
business in the Village of Port Washington North which is subject
to the supervision of the State Department of Public Service and 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;[2] and
[2]
Editor's Note: Article 3-B of the Public Service
Law was repealed by L. 1970, c. 267, § 5, effective 3-1-1971.
See now Transportation Law § 240 et seq.
(2)
A tax equal to 1% of its gross operating income from
and after the first day of July 1968 is hereby imposed upon every
other utility doing business in the Village of Port Washington North
which has a gross operating income for the 12 months ending May 31
in excess of $500.
[1]
Editor's Note: See now § 5-530 of
the Village Law.
B.
Such taxes shall have application only within the
territorial limits of the Village of Port Washington North and shall
be in addition to any and all other taxes and fees imposed by any
other provision of law.
C.
Such taxes shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the
Village of Port Washington North, notwithstanding that some act be
necessarily performed with respect to such transaction within such
limits.
As used in this article, the following terms
shall have the meanings indicated:
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 of Port Washington North, 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;
Profits from the sale of securities;
Profits from the sale of real property growing
out of the ownership or use of or interest in such property;
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);
Receipts from interest, dividends and royalties,
derived from sources within the Village of Port Washington North 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
Profits from any transaction (except sales for
resale and rentals) within the Village of Port Washington North 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 Port Washington North, and, in the case of a utility
engaged in selling telegraphy or telegraph service, only receipts
from transactions wholly consummated within the Village of Port Washington
North.
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 Village of Port Washington North, including cash, credits
and property of any kind or nature, without any deductions 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 means, except the state, municipalities,
political and civil subdivisions of the state or municipality, and
public districts.
Every person subject to the supervision of the
State Department of Public Service, except persons engaged in:
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.
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.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Treasurer
of the Village may require, and such records shall be preserved for
a period of three years, except that the Treasurer of the Village
may consent to their destruction within that period or may require
that they be kept longer.
A.
Time of filing. 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 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.
B.
Contents. Returns shall be filed with the Treasurer
of the Village on a form to be furnished by him for such purpose and
shall contain such other data, information or matter as the Treasurer
of the Village may require to be included therein. Notwithstanding
the foregoing provisions of this section, any utility whose average
gross income or average gross operating income, as the case may be,
for the aforesaid three months' period is less than $1,500 may file
a return annually on June 25 for the 12 preceding calendar months,
and the Treasurer of the Village may require any utility 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 a certification by the head of the
utility making the same, or of the owner or of the 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 Treasurer of the Village
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 Treasurer of the Village,
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 of the Village 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. He shall give notice of such determination to the person
liable for such tax.
(1)
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 of the Village for a hearing, or unless the Treasurer
of the Village on his own motion shall reduce the same. After such
hearing, the Treasurer of the Village shall give notice of his decision
to the person liable for the tax.
(2)
Such decision may be reviewed by a proceeding under
Article 78 of the Civil Practice Act of the State of New York[1] 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 Treasurer of the Village 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.
[1]
Editor's Note: The Civil Practice Act was
repealed by L. 1962, c. 308. See now the New York State Civil Practice
Law and Rules.
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
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 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 become due; but the Treasurer
of the Village, 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.
A.
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 of the Village or the Court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected, the Treasurer of the 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 of the Village.
B.
No refund shall be made of a tax or penalty paid pursuant
to a determination of the Treasurer of the Village after a hearing
as hereinbefore provided or on 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 Act of the State of New York[1] that such determination was erroneous or illegal.
[1]
Editor's Note: The Civil Practice Act was
repealed by L. 1962, c. 308. See now the New York State Civil Practice
Law and Rules.
C.
All refunds shall be made out of moneys collected
under this article.
D.
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 of the Village may receive
additional evidence with respect thereto.
E.
After making his determination, the Treasurer of the
Village 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 Village Attorney shall, upon
the request of the Treasurer of the Village, 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 the 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.
In the administration of this article, the Treasurer
of the Village 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 and to
prescribe the form of blanks, reports and other records relating to
the administration and enforcement of the tax, to take testimony and
proof, 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
of the Village or any agent, clerk or employee of the Village of Port
Washington North to divulge or make known in any manner the 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 Port Washington North
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 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 Treasurer
of the Village may assist in the collection of such delinquent taxes,
or the inspection by the Village Attorney or other legal representatives
of the Village of Port Washington North 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
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 Port Washington North,
he shall be dismissed from office and shall be incapable of holding
any office or employment in the Village of Port Washington North for
a period of five years thereafter.
D.
Notwithstanding any provisions of this article, the
Treasurer of the Village 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 such city
or other village grants similar privileges to the Village of Port
Washington North and provided such information is to be used for tax
purposes only, and the Treasurer of the Village shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Treasurer
of the Village 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.
This article shall be known as "Local Law No.
1-1968."