[Adopted 4-23-1979 by L.L. No. 3-1979
as Chapter 25 of the 1979 Municipal Code]
Pursuant to the authority granted by Article
5, § 5-530 of the Village Law of the State of New York,
from on and after September 1, 1971, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the incorporated Village of Maybrook 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 Article 3 of
the Public Service Law.
B. A tax equal to 1% of the gross operating income of
every other utility doing business in the incorporated Village of
Maybrook 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
Includes:
A.
Receipts received from 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 the gross income made or service rendered for ultimate
consumption or use by the purchaser of the Village, including case,
credits and property of any kind or nature, whether or not such service
is rendered for profit) without any deduction therefrom on account
of the costs of the property sold, the cost of the maker used, labor
or services or other costs, interest or discount paid or any other
expense whatsoever, except the following:
B.
In the case of a utility engaged in selling
telephone or telegraph service, only receipts from a local exchange
service wholly consummated with the Village.
C.
In the case of a utility engaged in selling
telegraphy in telegraph service, only receipts from transactions wholly
consummated with the Village.
D.
Profits from the sale of securities.
E.
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
F.
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 the period
for which a return is made).
G.
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 utility), without any deductions therefrom for any expense
whatsoever incurred in connection with the receipt thereof.
H.
Profits from any transactions (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 the ultimate consumption or use by the purchaser
of gas, electric, steam, water, refrigerator, telephone or telegraph
service in the Village, including cash, credits 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 discounts paid or any other expense whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees of rents, any person
acting in a fiduciary capacity or any other entirety 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:
B.
Persons engaged in the business of operating
or leasing sleeping and parlor railroad cars.
C.
Persons engaged in the business of operating
or leasing railroads other than street surface, rapid transit, subway
and elevated railroads.
D.
Omnibus corporations subject to supervision
under Article 3-A of the Public Service Law.
E.
Every person who sells gas, electricity, steam,
water, refrigeration, telephone or telegraph delivered through mains,
pipes or wires, whether or not such person is subject to the supervision
of the State Department of Public Service.
F.
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 hereby shall:
A. Apply only within the territorial limits of the Village
of Maybrook.
B. Not imply and the tax shall not be imposed on any
transaction originating or consummated outside the territorial limits
of the Village of Maybrook, notwithstanding that some act shall be
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 or after September
1, 1971.
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 Treasurer shall be the chief enforcement
officer of this article and shall make and be responsible for all
collections hereunder. He shall also have the power and authority
to make any rules and regulations or directives, not inconsistent
with law, which, in his discretion, are reasonably necessary to facilitate
the administration of this article and the collection of taxes imposed
hereby. Copies of all such rules and regulations and directives, as
may from time to time be promulgated, shall be sent by certified mail
to all utilities subject to this law which register as such with the
Village 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 on or before the 25th day of the months of March, June,
September and December a return for the three calendar months immediately
preceding each return, including any lesser period for which the tax
imposed hereby or any amendment hereof is effective.
B. Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by him for such purpose and shall
show thereon the gross income or gross operating income for the period
covered by the return and such other information, date or matter as
the Village 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 of the copartner thereof or of
a principal corporate officer to the effect that the statements contained
therein are true.
At the time of filing as required by this article,
each utility shall pay to the Village 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 last day on which 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 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 Treasurer,
he may require at any time a further or supplemental return, which
shall contain any data that may be specified by him, 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 Treasurer shall determine the amount 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 utility liable for such tax. Such determination
shall finally and irrevocably fix such tax, unless the utility against
which it is assessed shall, within one year after the giving of such
determination, apply to him for a hearing or unless the Village Treasurer,
of his own motion, shall reduce the same. After such hearing, he shall
give notice of his decision 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 notice of such final
determination; provided, however, that any such proceeding under Article
78 shall be instituted unless the amount of tax sought to be reviewed,
with such interest and penalties thereon as may be provided for by
local law 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 proceedings are 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
provision 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 addressed. Any period of time, which is determined according
to the provisions of this section by the giving of notice, shall commence
to run from the date of mailing of such notice.
If from within one year of 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 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,
after a hearing as hereinbefore provided, or if his 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 erroneously or illegally formed.
An application for the revision of any tax or penalty complained of
may be submitted, and the Village Treasurer may receive additional
evidence with respect thereto. After making his determination, the
Village Treasurer shall give notice thereof to the person interested,
and he 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 Treasurer and he 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 Treasurer in such amounts
and with such sureties as a Justice of the Supreme Court shall approve
to the effect that if such proceedings are dismissed or the tax confirmed,
the petitioner will pay all costs and charges which may accrue in
the prosecution of the proceedings.
Except in the case of a willfully false or fradulent
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 the expiration of more than three years from the date of filing
a return; provided, however, that, where no return had been filed
as required hereby, the tax may be assessed at any time.
In addition to any other powers herein given
the Village Treasurer and in order to further ensure payment of the
tax imposed hereby, he 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.
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
Whenever a 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 process 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.