[Adopted 11-24-1969 by L.L. No. 1-1969]
Pursuant to the authority granted by § 6-640 of the Village
Law of the State of New York[1], a tax equal to 1% of its gross income from and after January
1, 1970, is hereby imposed upon every utility doing business in the Village
of West Carthage, New York, which is subject to the supervision of the State
Department of Public Service, which has a gross income for 12 months ending
December 31, 1969, in excess of $500, except motor carriers or brokers subject
to such supervision under Article 3-B of the Public Service Law,[2] and a tax equal to 1% of its gross operating income from and after
January 1, 1970, is hereby imposed upon every other utility doing business
in the Village of West Carthage, New York, which has a gross operating income
for the 12 months ending December 31, 1969, in excess of $500, which taxes
shall have application only within the territorial limits of the Village of
West Carthage, New York, and shall be in addition to any and all other taxes
and fees imposed by any other provision of law. Such tax shall not be imposed
on any transaction originating or consummated outside of the territorial limits
of the Village of West Carthage, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
For the purpose of this article, the terms used herein are defined as
follows:
Means and 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 the Village of West Carthage, New York, 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; also 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 the Village of West Carthage, New
York, 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;
also profits from any transaction (except sales for resale and rentals) within
the Village of West Carthage, New York, whatsoever.
Notwithstanding any other provisions of this article or of § 186-a
of the Tax Law of the State of New York, 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 West Carthage, New York.
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within the Village
of West Carthage, New York.
Means and 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, 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 West Carthage, New York, 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.
Means persons, corporations, companies, associations, joint-stock
associations, 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, 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.
Includes every person 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, refrigeration, telephony or telegraphy
delivered through mains, pipes or wires, or 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 Village Treasurer or the Village Board
may require, and such records shall be preserved for a period of three years,
except that the Village Treasurer or the Village Board may consent to their
destruction within that period or may require that they be kept longer.
Every utility subject to tax hereunder shall file annually on or before
the 25th day of February a return for the 12 calendar months ending December
31 preceding such return date, or on or before March 25 a return for the 12
calendar months preceding such return date or any portion thereof for which
the tax imposed hereby is effective; provided, however, that in lieu of the
annual return required by the foregoing provisions, any utility may file quarterly
on or before September 25, December 25, March 25 and June 25 a return for
the three calendar months preceding such return date, and in the case of the
first such return all preceding calendar months during which the tax imposed
was effective. Each return shall state the gross income or gross operating
income for the period covered thereby. Returns shall be filed with the Village
Treasurer on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the Village Treasurer 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 Village Treasurer 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 by the owner
or by a copartner thereof, or by a principal officer of the corporation, if
such business is 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 Village 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.
A.
In case any return filed pursuant to this article shall
be insufficient or unsatisfactory to the Village Treasurer, and if a corrected
or sufficient return is not filed within 20 days after the same is required
by notice from the Village Treasurer, or if no return is made for any period,
the Village 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 Village 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 one year after the giving of notice of such determination,
apply to the Village Treasurer for a hearing, or unless the Village Treasurer,
of his own motion, shall reduce the same. After such hearing, the Village
Treasurer shall give notice of his decision to the person liable for the tax.
Any final determination of the amount of any tax payable hereunder or the
amount actually collected shall be reviewable for error, illegality, unconstitutionality
or any other reason whatsoever by a proceeding under Article 78 of the Civil
Practice Law and Rules as provided by § 6-640 of the Village Law
of the State of New York[1] if the 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 Village Treasurer
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: Currently § 5-530 of the Village Law.
B.
Except in the case of willfully false or fraudulent returns
with intent to evade the tax, no assessment or 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 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, except the first months, after
such return was required to be filed or such tax became due; but the Village
Treasurer, 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
such penalty.
[Amended 9-13-1976 by L.L. No. 8-1976]
If, within one year from 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 as
hereinbefore provided unless the Village 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 proceeding in the manner provided by § 6-640
of the Village Law of the State of New York[1] 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 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
as provided by § 6-640 of the Village Law under Article 78 of the
Civil Practice Law and Rules, subject to the provisions hereinbefore contained
relating to the granting of such an order.
[1]
Editor's Note: Currently § 5-530 of the Village Law.
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 under
the provisions of this article, the Village Attorney shall, upon the request
of the Village 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 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.
In the administration of this article, the Village Treasurer 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 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, records, papers and documents.
A.
Except in accordance with proper judicial order or as
otherwise provided by law, it shall be unlawful for the Village Treasurer
or any agent, clerk or employee of the Village of West Carthage, New York,
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 Village
of West Carthage, New York, 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 is 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 Village Treasurer
may assist in the collection of such delinquent taxes, nor to prohibit the
inspection by the Village Attorney or other legal representative of the Village
of West Carthage, New York, 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.
B.
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 West Carthage, New York, he shall be dismissed
from office and shall be incapable of holding any office or employment for
the Village of West Carthage, New York, for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the Village
Treasurer 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 that such city or other Village grants similar privileges
to the Village of West Carthage, New York, and provided that such information
is to be used for tax purposes only, and the Village Treasurer shall, upon
request, furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Village Treasurer under this
article shall be paid into the treasury of the Village of West Carthage, New
York, and shall be credited to and deposited in the general fund of the Village.
