[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.