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 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 Orchard Park, 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 the materials used, labor or services or other costs,
interest or discount paid, or any other expense 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, 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 Orchard Park, 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; provided, however, there shall
be excluded from gross operating income receipts representing the
amount received from the resale of the transportation, transmission
or distribution of gas or electricity in this state where such transportation,
transmission or distribution being resold is provided by a utility
subject to tax under this article; the receipts representing the amount
received from resale of such transportation, transmission or distribution
shall be the amount received for such transportation, transmission
or distribution by such utility which initially provided such transportation,
transmission or distributions; provided, further, sales of gas, electricity,
steam, water or refrigeration or gas, electric, steam, water or refrigerator
service to a landlord that is a person, as defined below, for resale
by such landlord to a tenant, for consumption by such tenant as an
incident to such landlord's activity of renting premises to such tenant,
shall be subject to the tax imposed under this article even though
such sales are not for ultimate consumption by such landlord; provided,
further, receipts derived by a landlord from the resale of such gas,
electricity, steam, water or refrigeration or furnishing gas, electric,
steam, water or refrigerator service to such tenant shall be conclusively
presumed to be equal to such landlord's cost of the same, and, if
the tax under this article was imposed on the sale to such landlord,
no additional tax under this article shall be owing on the sale by
such landlord to such tenant. If the tax under this article was not
imposed on such sale to the landlord, then such landlord on the sale
to its tenant shall file a return hereunder based on such landlord's
cost (including any associated transportation cost) of such gas, electricity,
steam, water or refrigeration or gas, electric, steam, water or refrigerator
service.
PERSON
Persons, corporations, companies, associations, joint stock
companies or 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 and
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.
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 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 or refrigeration delivered through mains, pipes, or wires, or
furnishes gas, electric, steam, water, or refrigeration 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
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
Clerk-Treasurer may require, or as the Board of Trustees may require,
and such records shall be preserved for a period of three years, except
that the Village Clerk-Treasurer or the Board of Trustees may consent
to their destruction within that period or may require that they be
kept longer.
At the time of the filing of a return as required
by this article, each utility shall pay to the Village of Orchard
Park 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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Clerk-Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from him, or if no return is
made for any period, the Village Clerk-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. He 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 Clerk-Treasurer for a hearing, or unless the Village
Clerk-Treasurer, of his own motion, shall reduce the same. After such
hearing, the Village Clerk-Treasurer shall give notice of his decision
to the person liable for the tax. Such decision may be reviewed by
a proceeding under Article 78 of the Civil Practice Law and 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 Clerk-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. Except in the case of wilfully 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 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
persons 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 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, but the Village Clerk-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 article.
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 Clerk-Treasurer or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the Village Clerk-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 Clerk-Treasurer.
However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Village Clerk-Treasurer as hereinbefore
provided unless the Village Clerk-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 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 monies 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
Clerk-Treasurer may receive additional evidence with respect thereto.
After making the determination, the Village Clerk-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 provision 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 may 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. Upon request,
the utility shall furnish a statement of the amount of tax imposed
by this article to its customers.
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 Clerk-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 Clerk-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
Clerk-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 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, papers and documents.
All taxes and penalties received by the Village
Clerk-Treasurer under this article shall be paid into the treasury
of the Village of Orchard Park, New York, and shall be credited to
and deposited in the general fund of the Village.