[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Law was repealed by L. 1970, c. 267.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:
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.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, their assignees, lessees, trustees or
receivers, appointed by any court whatsoever, or by any other means.
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.
The same remedies shall be available for the
recovery of any tax or penalty imposed by this article as are available
for the other taxes and penalties imposed by law.
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.
