[Adopted 4-20-1998 by L.L. No. 4-1998]
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 1998 is hereby
imposed upon every utility with the exception of any Village-owned
utility doing business in the Village of Westfield, New York, which
is subject to the supervision of the State Department of Public Service
and which has a gross income for 12 months ending May 31 in excess
of $500, except motor carriers of brokers subject to such supervision
under Article 3-B of the Public Service Law,[1] and a tax equal to 1% of its gross operating income from
and after the first day of June 1998 is hereby imposed upon every
other utility doing business in the Village of Westfield, New York,
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 Westfield, notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: Article 3-B of the Public Service
Law was repealed by L.1970, c. 267, § 5, effective March
1, 1971. Similar provisions are now located in § 240 et
seq. of the Transportation Law.
As used in this article, the following terms
shall have the meanings indicated:
Includes receipts received in or by reasons of any sale,
conditional or otherwise (except sales hereinafter referred to with
respect to which it is provided that the 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 Westfield, 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 properly
sold, the cost of the materials used, labor or services or other costs,
interest or discount paid or any other expense whatsoever; also profits
from the sale of real property sold, the cost of the materials used,
labor or services or other costs, interest or discount paid or any
other expense whatsoever; 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 Westfield, 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; and also profits from any transaction (except sales for resale
and rentals) within the Village of Westfield, New York, whatsoever;
provided, however, that the words "gross income" shall include, in
the case of a utility engaged in selling telephone or telephone service,
only receipts from a local exchange service wholly consummated within
the Village of Westfield, New York, and in the case of a utility engaged
in selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village of Westfield, New York.
Includes receipts received in or by reason of any sale, conditional
or otherwise, made for ultimate consumption or use by the purchaser
of gas, steam, water, refrigeration, telephone or telegraphy or in
or by reason of the furnishing for such consumption or use of gas,
steam, water, refrigeration, telephone or telegraph service in the
Village of Westfield, New York, including cash, credits and property
of any kind or nature, without any deduction therefrom on account
of the cost of materials used, labor or services or other costs, interest
or discount paid or any other expenses whatsoever.
Persons, corporations. companies, associations, joint-stock
associations, copartnerships, 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 and public districts.
Includes every person subject to the supervision of the State
Department of Public Service, except 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, steam, refrigeration,
telephone or telegraphy delivered through mains, pipes or wires, or
furnishes gas, steam, refrigeration, 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 shall keep such
records of its business and in such form as the Village Treasurer
may require or as 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 the 31st day of December or, on or before
the 25th day of March, a return date of 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 1, December 1, March 1 and
June 1 a return for the three calendar months preceding each such
return date and, in the case of the first such return, for all preceding
calendar months during which the tax imposed hereby was effective.
Every 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/her for such purpose and
shall contain such other data, information or matter as he/she may
require to be included therein. The Village Treasurer, in order to
ensure payment of the tax imposed, may require a return at any time
that may be specified by him/her, and he/she may require any utility
doing business in the Village of Westfield, New York, to file an annual
return, which shall contain any data specified by him/her, regardless
of whether the utility is subject to tax under this article. Every
return shall have annexed thereto an affidavit of the head of the
utility making the same, or of the owner 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.
At the time of filing a return as required by
this article, each utility shall pay to the Village of Westfield 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 him/her or if no return
is made for any period, the Village Treasurer shall determine the
amount of tax due from such information as he/she is able to obtain
and, if necessary, may estimate the tax on the basis of external indices
or otherwise. He/she 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 Village Treasurer for a hearing, or unless the Village Treasurer,
of his/her own motion, shall reduce the same. After such hearing,
the Village Treasurer shall give notice of his/her decision to the
person liable for the tax.
B.
Such decision may be reviewed by a proceeding under
Article 78 of the Civil Practice Rules of the State of New York if
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/her 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.
Any notice authorized or required under the
provisions of this article may be given by mailing the same to the
persons for whom it is intended, in a postpaid envelope, addressed
to such person at the address given 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 it is 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 to pay
any tax or any portion thereof, within the time required by this article,
shall be subject to a penalty of 5% of such tax for each month after
such return was required to be filed or such tax became due, but the
Village Treasurer, for cause shown, 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.
A.
If, within one year from the payment of any tax or
penalty, the payer thereof 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.
B.
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
if the Village Treasurer, as hereinbefore provided, or of his/her
own motion, shall have reduced the tax or penalty or if it shall have
been established in a proceeding under Article 78 of the Civil Practice
Law and Rules 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 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 an order to review such determination
under said Article 78 of the Civil Practice Law and Rules of the State
of New York, subject to the provisions hereinbefore contained relating
to the granting of such order.
The tax imposed by this article shall be charged
against and shall 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 by this article, the Village Attorney shall, upon
the request of the Village Board, 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 of the Tax Law[1] is made a lien.
[1]
Editor's Note: Section 186 of the Tax Law
was repealed by L.2000, c. 63, pt. Y, § 3, effective May
15, 2000.
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/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/her official duty
under this article and to subpoena and require the attendance of witnesses
and the production of books, papers and documents.
A.
Disclosure prohibited; exceptions.
(1)
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 Westfield
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 officers 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 Westfield 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 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,
and no more.
(2)
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;
or the inspection by the Village Attorney or other legal representative
of the Village of Westfield 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,
clerk or employee of the Village of Westfield, he shall be dismissed
from office and shall be incapable of holding any office or employment
for the Village of Westfield 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 Westfield 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 Westfield and shall be credited to and deposited in the
general fund of the Village.
If any part or provision of this article or
the application thereof to any person or circumstance be adjudged
invalid by any court of competent jurisdiction, such judgment shall
be confined in its operation to the part or provision or application
directly involved in the controversy in which said judgment shall
have been rendered and shall not affect or impair the validity of
the remainder of this article or the application thereof to other
persons or circumstances, and the Village of Westfield hereby declares
that it would have passed this article or the remainder thereof had
such invalid application or invalid provision been apparent.
This article shall take effect immediately upon
filing in the office of the Secretary of State in accordance with
§ 27 of the Municipal Home Rule Law.
