[Adopted 3-18-1968 by L.L. No. 1-1968]
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 for each and every
twelve-month period commencing from June 1, 1968, and thereafter,
is hereby imposed on every utility doing business in the Village of
Irvington, which is subject to the supervision of the State Department
of Public Service, except motor carriers, or brokers subject to such
supervision under Article 3-B of the Public Service Law,[2] which has a gross income for 12 months ending May 31 in
excess of $500 and a tax equal to 1% of its gross operating income
is hereby imposed for the same period upon every other utility doing
business in the Village of Irvington which has a gross operating income
for 12 months ending May 31 in excess of $500 which taxes shall have
application only within the territorial limits of the Village of Irvington,
and shall be in addition to any and all other taxes and fees imposed
by any other provision of law for the same period. Such taxes shall
not be imposed on any transaction originating or consummated, outside
of the territorial limits of the Village of Irvington, notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
As used in this article, the following terms
shall have the meanings indicated:
Includes receipts received in, or by, any reason of sale,
conditional or otherwise, (except sales hereinafter referred to with
respect to which it is provided that profits from sale shall be included
in gross income) made or service rendered for ultimate consumption
or use by the purchaser in the Village of Irvington, 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; 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 Irvington 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 Irvington whatsoever. Notwithstanding
any other provision of this section or of § 186-a of the
Tax Law, 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.
In the case of a utility selling telegraphy
or telegraph service, only receipts from transaction wholly consummated
within the Village.
The words "gross operating income" mean and
include 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 Irvington, 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.
Persons, corporation, companies, associations, joint-stock
associations, copartnership, 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 any division
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 Collector
Treasurer may require, and such records shall be preserved for a period
of three years, except that the Collector Treasurer may consent to
their destruction within that period or may require that they be kept
longer.
Every utility subject to tax hereunder shall
file on or before September 25, December 25, March 25 and June 25,
a return for the three calendar months preceding such return date,
including any period for which the tax imposed hereby or, by any amendment
hereof is effective, each of which returns shall state the gross income
or gross operating income for the period covered by each such return.
Returns shall be filed with the Collector Treasurer on a form to be
furnished by him for such purpose, and shall contain such other data,
information, or matter as the Collector Treasurer may require to be
included therein. Notwithstanding the foregoing provisions of this
article, any utility whose average gross income, or average gross
operating income as the case may be, for the aforesaid three months'
periods is less than $1,500 may file its returns for such periods
on June 25, 1969. The Collector Treasurer in order to insure payment
of the tax imposed, may require at any time a further or supplemental
return which shall contain any data that may be specified by the Collector
Treasurer. Every return shall have annexed thereto an affidavit of
the head of the utility making the same, or of the owner or of the
copartner thereof, or of the principal officer of the 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 Collector 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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Collector Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the Collector Treasurer,
or if no return is made for any period, 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 Collector 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 30 days after
the giving of notice of such determination, apply to the Collector
Treasurer, for a hearing, or unless the Collector Treasurer, of his
own motion shall reduce the same. After such hearing, the Collector
Treasurer shall give notice of his decision to the person liable for
the tax. The decision of the Collector Treasurer 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 30
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 Collector 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 order
is dismissed or the tax confirmed, the applicant for the order 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
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 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 after which the return
was required to be filed or such tax became due, but the Collector
Treasurer, if satisfied that the delay was excusable, may remit all
or any portion of such penalty.
If, within one year from the payment of any
tax or penalty, the payer thereof shall make application for a refund
thereof and the Collector Treasurer or the court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected the Collector 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 Collector Treasurer. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
Collector Treasurer as hereinbefore provided unless the Collector
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 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 Collector Treasurer may receive additional
evidence with respect thereto. After making his determination, the
Collector 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, subject to the provisions 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 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 cost 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 Collector 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 Collector 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 Collector
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.
A.
Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Collector
Treasurer, or any agent, clerk or employee of the Village of Irvington
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 Irvington 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 omit in evidence, so much of said returns or
of the facts shown thereby, as are 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 Collector 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
Irvington 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 six months, or both, and if the offender be an officer,
agent, clerk or employee of the Village of Irvington he shall be dismissed
from office, and shall be incapable of holding any office or employment
in the Village of Irvington for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the
Collector Treasurer may exchange with the chief fiscal officer of
any city or any first class village in the State of New York information
contained in returns filed under this article, provided that such
other city or village grants similar privileges to the Village of
Irvington, and provided such information is to be used for tax purposes
only, and the Collector Treasurer shall, upon request, furnish the
State Tax Commission with any information contained in such returns.
All taxes and penalties received by the Collector
Treasurer for taxes heretofore or hereafter imposed under this article
shall be credited and deposited by him in the general fund of the
Village.
