[Adopted 5-16-1960 by L.L. No. 2-1960]
Pursuant to the authority granted by § 131 of the Village Law[1] of the State of New York, a tax equal to 1% of its gross income from and after the date of adoption of this article is hereby imposed upon every utility doing business in the Village of Lynbrook which is subject to the supervision of the State Department of Public Service, which utility has a gross income for the 12 months ending December 31 in excess of $500, except motor carriers or brokers subject to such supervision under Article 3-B of the Public Service Law.[2] which taxes shall have application only within the territorial limits of the Village of Lynbrook 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 Lynbrook, notwithstanding that some act is necessarily performed with respect to such transaction within such limits.
[1]
Editor's Note: Section 131 of the Village Law was renumbered as § 6-640 by Chapter 767 of the Laws of 1967. Section 6-640 became § 5-530 pursuant to the comprehensive revision of the Village Law adopted as Chapter 892 of the Laws of 1972.
[2]
Editor's Note: Article 3-B of the Public Service Law was repealed by L. 1970, c. 267. § 5, effective 3-1-1971. See now Transportation Law § 240 et seq.
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 the Village of Lynbrook, 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 real property growing out of the ownership or use of or interests 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 Lynbrook 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 Lynbrook whatsoever; provided, however, that 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 and, in the case of a utility engaged in selling telegraphy or telegraph service, only receipts from transactions wholly consummated within the Village.
PERSON
Persons, corporations, companies, associations, joint-stock associations, copartnerships, their assignees, lessees, trustees or receivers, appointed by any court whatsoever, or by any other means.
UTILITY
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.
Every utility subject to tax under this article shall keep such records of its business in such form as the Village Treasurer may require, and such records shall be preserved for a period of three years, except that the Village Treasurer may consent to their destruction within that period or may require that they be kept longer.
A. 
Every utility subject to tax hereunder shall file annually, on or before the 25th day of February 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 and June 25, 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 for such purpose and shall contain such other data, information or matter as he may require to be included therein.
B. 
The Village Treasurer, in order to ensure payment of the tax imposed, may require at any time a further or supplemental return, which return shall contain any data that may be specified by him, and he may require any utility doing business in the Village of Lynbrook 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.
C. 
Every return shall have annexed thereto an affidavit of the head of the utility making same or of the owner or of a copartner thereof or of a principal officer of the corporation if such business be 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 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.
B. 
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 same. After such hearing the Village Treasurer shall give notice of his decision to the person liable for the tax.
C. 
Any final determination of the amount of any tax payable hereunder shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under Article 78 of the Civil Practice Act if application therefor is made to the Supreme Court within 90 days after the giving of the notice of such final determination; provided, however, that any such proceeding under said Article 78 shall not be instituted unless the amount of any tax sought to be reviewed, with such interest and penalties hereon as may be provided by local law, ordinance or resolution, shall be first deposited and an undertaking filed in such amount and with such sureties as a Justice of the Supreme Court shall approve, to the effect that if such proceeding is dismissed or the tax confirmed the petitioner shall pay all costs and charges which may accrue in the prosecution of such proceeding.
D. 
Except in the case of a willfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than three years from the date of filing of a return; provided, however, that, where no return has been filed as required by this chapter, the tax may be assessed at any time.
Any notice authorized or requested under the provisions of this article may be given by mailing 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 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 9-16-2013 by L.L. No. 10-2013]
Any person failing to file a return or corrected return, or to pay any tax or any portion thereof, within the time required by law shall be liable to the Village to pay the costs of such audit which revealed a failure to pay any part of a tax hereunder and shall be, in addition thereto, subject to a penalty of 5% of the amount due, plus 1% of such tax due for each month of delay or fraction thereof, except for the first month, 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 the penalty fixed by the foregoing provisions of this action.
A. 
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. Any refunds shall be made out of moneys collected under this article deposited to the credit of the Village Treasurer, with the approval of the Village Treasurer. Any 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 a public hearing and after making his determination, the Village Treasurer shall give notice thereof to the person interested.
B. 
Where any tax imposed hereunder shall have been erroneously, illegally or unconstitutionally collected and application for the refund thereof duly made to the proper officer or officers and such officer or officers shall have made a determination denying such refund, such determination shall be reviewable by a proceeding in the Supreme Court of this state; provided, however, that such proceeding is instituted within 90 days after the giving of the notice of such denial, that a final determination of tax due was not previously made and that an undertaking is filed with the proper fiscal officer or officers in such amount and with such sureties as a Justice of the Supreme Court shall approve, to the effect that if such proceedings are dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.
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.
[Amended 9-16-2013 by L.L. No. 10-2013]
Whenever a person shall fail to pay any tax or penalty imposed by this article, the Village Attorney shall, upon the request of the Village Treasurer, bring an action to enforce payment of same. The proceeds of a judgment obtained in such action shall be paid to the Village Treasurer. Each such tax and penalty and audit fees shall be a lien upon the real and personal property of the person liable to pay same and may be collected in the manner of real estate taxes upon the real estate owned by such person within the Village of Lynbrook.
In the administration of this article, the Village Treasurer shall have 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 forms of 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 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 Lynbrook, 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 Lynbrook 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 proceedings, 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 are pertinent to the action or proceeding, and no more.
B. 
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 representatives of the Village of Lynbrook 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.
C. 
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 is an officer, agent, clerk or employee of the Village of Lynbrook, he shall be dismissed from office, and he shall be incapable of holding any office or employment in the Village of Lynbrook for a period of five years thereafter.
D. 
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 Lynbrook 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 and shall be credited to and deposited in the general fund of the Village.
The remedy provided by this article for review of a decision of the Village Treasurer shall be the exclusive remedy available to any taxpayer to judicially determine the liability of such taxpayer for taxes under this article.