[Adopted 4-11-1938 (Ch. 106, Art. II of the 1971
Code)]
[Amended 2-27-1956 by L.L. No. 1-1956; 4-23-2007
by L.L. No. 1-2007]
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, 1938, is hereby imposed upon every utility doing business in the City of Middletown 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 omnibus corporations subject to the supervision of the State Department of Public Service under § 150 et seq. of the Transportation Law, motor carriers or brokers subject to such supervision under § 240 et seq. of the Transportation Law, and a tax equal to 1% of its gross operating income is hereby imposed from and after July 1, 1938, upon every other utility doing business in the City of Middletown 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 Middletown and shall be in addition to any and all other taxes and fees imposed by any other provision of law for the same period. Such taxes shall not be imposed on any transaction originating or consummated outside of the territorial limits of the City of Middletown, notwithstanding that some act is necessarily performed with respect to such transaction within such limits.
[Amended 6-13-1938 by L.L. No. 3-1938; 4-23-2007
by L.L. No. 1-2007]
The terms used in this article shall be defined as provided in § 186-a
of the Tax Law.
[Amended 1-7-2008]
Every utility subject to tax under this article shall keep such records
of its business and in such form as the Treasurer of the City of Middletown
may require, and such records shall be preserved for a period of three years,
except that the Treasurer may consent to their destruction within that period
or may require that they be kept longer.
[Amended 9-11-1950 by L.L. No. 1-1950; 1-7-2008]
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 Treasurer on a form to be
furnished by him for such purpose and shall contain such other data, information
or matter as the Treasurer may require to be included therein. Notwithstanding
the foregoing provisions of this article, any utility whose average gross
income or average gross operating income, as the case may be, for the aforesaid
three-month period is less than $1,500 may file a return annually on June
25 for the 12 preceding calendar months, and the Treasurer may require any
utility doing business in the City of Middletown to file an annual return,
which shall contain any data specified by the Treasurer, regardless of whether
the utility is subject to tax under this article. The 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 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 is conducted by a corporation,
to the effect that the statements contained therein are true.
[Amended 1-7-2008]
At the time of filing a return as required by this article, each utility
shall pay to the Treasurer of the City of Middletown 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.
[Amended 6-26-1939 by L.L. No. 3-1939; 1-7-2008]
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Treasurer, and if a corrected or sufficient return
is not filed within 20 days after the same is required by notice from the
Treasurer, or if no return is made for any period, the 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 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 Treasurer for a hearing,
or unless the Treasurer of his/her own motion shall reduce the same. After
such hearing, the Treasurer shall give notice of his/her decision to the person
liable for the tax. The decision of the Treasurer may be reviewed by a proceeding
under Article 78 of the Civil Practice Act of the State of New York (certiorari),
if application thereof is made within 30 days after the giving of notice of
such decision. An order to review such decision (of certiorari) 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
and an undertaking filed with him/her in such amount and with such sureties
as a Justice of the Supreme Court shall approve, to the effect that if such
proceeding (order) will pay all costs and charges which may accrue in the
prosecution of such (certiorari) 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 at 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.
[Amended 1-7-2008]
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 Treasurer
of the City of Middletown, if satisfied that the delay was excusable, may
remit all or any portion of such penalty.
[Amended 6-26-1939 by L.L. No. 3-1939; 1-7-2008]
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 or the
court shall determine that such tax or penalty or any portion thereof was
erroneously or illegally collected, the 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 Treasurer. However, no refund shall be made
of a tax or penalty paid pursuant to a determination of the Treasurer as hereinbefore
provided unless the 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 (certiorari) proceeding under Article 78 of the Civil
Practice Act 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
Treasurer may receive additional evidence with respect thereto. After making
this determination, the Treasurer shall give notice thereof to the person
interested, and he shall be entitled to an (a certiorari) order to review
such determination under said Article 78, subject to the provisions hereinbefore
contained relating to the granting of such an order.
[Amended 4-23-2007 by L.L. No. 1-2007]
The tax imposed by this article shall be charged against and be paid
by the utility and may be added as a separate item to bills rendered by the
utility to customers or others.
[Amended 1-7-2008]
Whenever any person shall fail to pay any tax or penalty imposed by
this article, the Corporation Counsel shall upon the request of the Treasurer
bring an action to enforce payment of the same. The procedures of any judgment
obtained in any such action shall be paid to the 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 1-7-2008]
In the administration of this article, the Treasurer of the City of
Middletown shall have power to make such reasonable rules and regulations,
not inconsistent with law, as may be necessary for the exercise of his/her
powers and the performance of his/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 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 the proper judicial order or
as otherwise provided by law, it shall be unlawful for the Treasurer of the
City of Middletown, or any agent, clerk or employee of the City of Middletown,
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 Middletown 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 any 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 Treasurer of the City of Middletown may assist
in the collection of such delinquent taxes; or the inspection by the Corporation
Counsel or other legal representatives of the City of Middletown 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.
[Amended 1-7-2008]
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 is an officer, agent, clerk
or employee of the City of Middletown, he shall be dismissed from office and
shall be incapable of holding any office or employment in the City of Middletown
for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the Treasurer
of the City of Middletown 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 Middletown and provided such information is to be used for tax
purposes only, and the Treasurer shall, upon request, furnish the State Tax
Commission with any information contained in such returns.
[Amended 1-7-2008]
[Amended 6-15-1942 by L.L. No. 8-1942; 1-7-2008]
All taxes and penalties by the Treasurer for taxes heretofore or hereafter
imposed under this article shall be credited and deposited by him/her in the
general fund of the City.
