Pursuant to the authority granted by § 5-530 of the Village
Law of the State of New York, a tax equal to 1% of its gross income from and
after the first day of June 2002 is hereby imposed upon every utility doing
business in the Village of Waverly 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,
and a tax equal to 1% of its gross operating income from and after the first
day of June 2002 is hereby imposed upon every other utility doing business
in the Village of Waverly 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 Village of Waverly and shall be in addition
to any and all other taxes and fees imposed by any other provision of law.
Such taxes shall not be imposed on any transaction originating or consummated
outside of the territorial limits of the Village of Waverly, 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:
GROSS INCOME
Includes 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 this state, 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 materials used, labor or services or other costs, interest or
discount paid, or any other expense whatsoever; provided, however, that gross
income with respect to a provider of telecommunication services shall not
include receipts from the sale of telecommunication services as such services
are defined in § 186-e of the Tax Law. Gross income also includes
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
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); also receipts from interest,
dividends and royalties, derived from sources within this state other than
such as are received from a corporation, a majority of whose voting stock
is owned by the tax-paying utility, without any deduction there from for any
expenses whatsoever incurred in connection with the receipt thereof; also
profits from any transaction (except sales for resale and rentals) within
this state whatsoever.
GROSS OPERATING INCOME
Includes 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 (unless a public system) or refrigeration, or in
or by reason of the furnishing for such consumption or use of gas, electric,
steam, water (unless a public system) or refrigerator service in this state,
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.
PERSON
Persons, corporations, companies, associations, joint-stock companies
or associations, partnerships and limited-liability companies, estates, assignee
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, or public districts.
UTILITY
Includes every person (including every provider of telecommunication
services) subject to the supervision of the State Department of Public Service,
except persons engaged in the business of operating on the public highways
of this state one or more omnibuses having a seating capacity of more than
seven persons, and 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 (unless a public system) or refrigeration,
delivered through mains, pipes or wires, or furnishes gas, electric, steam,
water (unless a public system) or refrigeration 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 a tax under this article shall keep such records
of its business and in such form as the Treasurer 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.
At the time of filing a return as required by this article, each utility
shall pay to the 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.
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 or persons at the address given
in the last return filed by such person or persons under this article or,
if no return has been filed, then to such address as may be obtained from
existing directories or records. The mailing of such notice shall be presumptive
evidence of the receipt of the same by the person or persons 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 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,
for causes 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.
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 or her 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 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 his or her
determination, the Treasurer shall give notice thereof to the person interested,
and he or she 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
cost 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,
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. 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 shall have power
to make such reasonable rules and regulations, not inconsistent with law,
as may be necessary for the exercise of his or her powers and the performance
of his or 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 or her official duty under this article, and to subpoena and require
the attendance of witnesses and the production of books, papers and documents.
All taxes and penalties received by the Treasurer 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.