[Adopted by L.L. No. 1-1941; printed as amended 7-21-1950 by L.L. No.
3-1950]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, a tax equal to 1%
of its gross income for an indefinite period from July 1, 1941, is
hereby imposed upon every utility doing business in the City of Canandaigua
which is subject to the supervision of the State Department of Public
Service, which has a gross income for the 12 months ending May 31
of each year in excess of $500, except motor carriers or brokers subject
to such supervision under Article 3-B of the Public Service Law, 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
City of Canandaigua which has a gross operating income for the 12
months ending May 31 of each year in excess of $500, which taxes shall
have application only within the territorial limits of the City of
Canandaigua, 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 transactions originating or consummated
outside of the territorial limits of the City of Canandaigua, 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 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 City of Canandaigua, 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 City of Canandaigua 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 City of Canandaigua whatsoever.
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 City of Canandaigua, 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, 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 either
division 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, 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 City
Treasurer may require. Such records shall be offered for inspection
and examination at any time upon demand by the City Treasurer or by
his duly authorized agent or employee and shall be preserved for a
period of three years, except that the City 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 each 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 City Treasurer on a form
to be furnished by him for such purpose and shall contain such other
data, information or matter as the City Treasurer may require to be
included therein. Notwithstanding the foregoing provisions of this
section, 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 a return annually on June 25 for the
12 preceding calendar months. The City 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
City 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 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 City 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 City Treasurer, and
if a corrected or sufficient return is not filed within 20 days after
the same is required by notice from the City Treasurer, or if no return
is made for any period, the City 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 City 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 City Treasurer for a hearing, or unless
the City Treasurer, of his own motion shall reduce the same. After
such hearing, the City Treasurer shall give notice of his decision
to the person liable for the tax. 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 Law and Rules of the State
of New York if application therefor is made to the Supreme Court within
30 days after the giving of the notice of such final determination;
provided, however, that any such proceeding under Article 78 of the
Civil Practice Law and Rules of the State of New York shall not be
instituted unless the amount of any tax sought to be reviewed, with
interest and penalties thereon, if any, shall be first deposited with
the City 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 petitioner will pay all costs and charges which may accrue in
the prosecution of such proceeding.
Whenever any person shall fail to pay any tax
or part thereof or penalty imposed by this article as in this article
provided, the City Attorney shall upon the request of the City Treasurer
bring an action in the name of the City of Canandaigua to recover
the same. The proceeds of the judgment obtained in such action shall
be paid to the City Treasury. As an additional or alternate remedy,
the City Treasurer may issue a warrant directed to the Sheriff of
Ontario County, commanding him to levy upon and sell the real and
personal property of the person from whom the tax is due which may
be found within his county for the payment of the amount thereof,
with any penalties and the cost of executing the warrant and to return
the warrant to the City Treasurer and to pay to him the money collected
by virtue thereof within 60 days after the receipt of such warrant.
The Sheriff shall within five days after the receipt of the warrant
file with the Clerk of his county a copy thereof and thereupon such
Clerk shall enter in his judgment docket the name of the person mentioned
in the warrant and the amount of the tax and penalties for which the
warrant is issued and the date that such copy is filed. Thereupon
the amount of such warrant so docketed shall become a lien upon the
title to and interest in real property and chattels real of the utility
against which the warrant is issued, in the same manner as a judgment
duly docketed in the office of such Clerk. The Sheriff shall then
proceed upon the warrant in the same manner and with like effect as
that provided by law in respect to executions issued against property
upon judgments of a court of record, and for his services in executing
the warrant he shall be entitled to the same fees, which he may collect
in the same manner. In the discretion of the City Treasurer a warrant
of like terms, force and effect may be issued and directed to any
police officer of the City of Canandaigua, and in the execution thereof
such police officer shall have all the powers conferred by law upon
sheriffs, but he shall be entitled to no fee or compensation in excess
of the actual expenses paid in the performance of such duty. If a
warrant is returned not satisfied in full, the City Treasurer may
from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the City of Canandaigua
had recovered judgment therefor and execution thereon had been returned
unsatisfied.
A.
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.
B.
The provisions of the Civil Practice Act relative
to the limitation of time for the enforcement of a civil remedy shall
not apply to any proceeding or action taken to levy, appraise, assess,
determine or enforce the collection of any tax or penalty provided
by this article.
A.
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 the amount of tax due plus
1% of such tax for each month of delay or fraction thereof, excepting
the first month after such return was required to be filed or such
tax became due, but the City Treasurer, if satisfied that the delay
was excusable, may remit all or any portion of such penalty. Such
penalty shall be paid to the City Treasurer and disposed of in the
same manner as other receipts under this article. Unpaid penalties
may be enforced in the same manner as the tax imposed by this article.
B.
Any person and any officer of a corporation or copartner
filing or causing to be filed any return, certificate, affidavit or
statement required or authorized by this article which is wilfully
false and any person who shall fail to file a return as required by
this article and the officers of any corporation who shall so fail
shall be guilty of a misdemeanor, punishment for which shall be a
fine of not more than $1,000 or imprisonment for not more than one
year, or both such fine and imprisonment.
C.
The certificate of the City Treasurer to the effect
that a tax or fee has not been paid, that a return has not been filed,
or that information has not been supplied pursuant to the provisions
of this article shall be prima facie evidence thereof.
If within one year from the payment of any tax or penalty, the payer thereof shall make application for a refund thereof and the City Treasurer or the court shall determine that such tax or penalty or any portion thereof was erroneously or illegally collected, the City 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 City Treasurer. However, no refund shall be made of a tax or penalty paid pursuant to a determination of the City Treasurer as provided by § 612-6 unless the City Treasurer, after a hearing as by said section 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 with the approval of the City Treasurer out of moneys collected under the provisions of this article, deposited to the credit of the special fund provided for by § 612-14 hereof. An application for a refund, made as herein provided, shall be deemed an application for a revision of any tax or penalty complained of and the City Treasurer may receive additional evidence with respect thereto. After making his determination, the City Treasurer shall give notice thereof to the person interested. Where any tax imposed hereunder shall have been erroneously, illegally or unconstitutionally collected and application for the refund thereof duly made to the City Treasurer and such City Treasurer shall have made a determination denying such refund, such determination shall be reviewable by a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York; provided, however, that such proceeding is instituted within 30 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 City Treasurer 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 petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.
In the administration of this article the City
Treasurer shall have power to:
A.
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 under this article, and prescribe the form
of blanks, reports and other records relating to the administration
and enforcement of this article;
B.
Assess, determine, revise, readjust and impose the
taxes authorized to be imposed under this article;
C.
To take testimony and proofs, under oath, with reference
to any matter within the line of his official duty under this article
or he may designate and duly authorize an employee to act in his place
for that purpose; and
D.
Request information from the Tax Commission of the
State of New York or the United States Collector of Internal Revenue
relative to any person and to accord information to such Tax Commission
or such Collector of Internal Revenue relative to any person, any
other provision in this article to the contrary notwithstanding.
A.
The City Treasurer or his employee duly designated
and authorized by the City Treasurer shall have power to administer
oaths and take affidavits in relation to any matter or proceeding
in the exercise of the powers and duties of the City Treasurer under
this article.
B.
The City Treasurer shall have power to subpoena and
require the attendance of witnesses and the production of books, papers
and documents pertinent to the investigations and inquiries which
he is authorized to conduct under this article and to examine them
in relation to any matter which he has power to investigate hereunder
and to issue commissions for the examination of witnesses who are
out of the state or unable to attend before him or excused from attendance.
C.
A justice of the Supreme Court either in court or
at chambers shall have power summarily to enforce by proper proceedings
the attendance and testimony of witnesses and the production and examination
of books, papers and documents called for by the subpoena of the City
Treasurer hereunder.
D.
Any person who shall testify falsely in any material
matter pending before the City Treasurer hereunder shall be guilty
of a misdemeanor, the punishment for which shall be a fine of not
more than $1,000 or imprisonment for not more than one year, or both
such fine and imprisonment.
E.
The officers who serve the City Treasurer's summons
or subpoenas hereunder and witnesses attending in response thereto
shall be entitled to the same fees as are allowed to officers and
witnesses in civil cases in courts of record.
Except in accordance with proper judicial order
or as otherwise provided by law, it shall be unlawful for the City
Treasurer or any officer or employee of the City of Canandaigua to
divulge or make known in any manner the receipts or any other information
relating to the business of a taxpayer contained in any return required
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 City of Canandaigua or of the City Treasurer,
or on behalf of any party to any action or proceeding under the provisions
of this article when the returns or fact shown thereby are directly
involved in such action or proceeding, 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 fact shown thereby as are pertinent to the
action or proceeding and no more. Nothing herein shall be construed
to prohibit the delivery to a taxpayer or his duly authorized representative
of a copy of any return filed in connection with his tax, nor to prohibit
the publication of statistics so classified as to prevent the identification
of particular returns and the items thereof, or the inspection by
the City Attorney of the City of Canandaigua or other legal representatives
of such City of the return of any taxpayer who shall bring action
or proceeding to set aside or review the tax based thereon or against
whom an action or proceeding has been instituted or is contemplated
for the collection of a tax or penalty.
The City Treasurer shall keep a record of all
taxes and other moneys received by him for taxes heretofore or hereafter
imposed and immediately upon receipt thereof shall credit and deposit
the same in the general fund of the City.
A.
If any provision of this article or the application
thereof to any person or circumstances is adjudged invalid or unconstitutional
by a court of competent jurisdiction, the remaining provisions of
this article or the application of this article to other persons and
circumstances shall not be affected thereby but such judgment shall
be confined in its operation to the fact directly involved in the
controversy in which such judgment shall have been rendered and the
City Council of the City of Canandaigua hereby declares that it would
have enacted this article or the remaining provisions of this article
without such invalid part had the invalid application or the invalid
provision, as the case may be, been apparent. this article shall be
construed in conformity with Chapter 26 of the Laws of 1909 as amended
by Chapter 321 of the Laws of 1937, and the amendments thereto, pursuant
to which it is enacted.
[Amended 6-19-2008 by Ord. No. 2008-014]
B.
This article shall not be deemed or construed to authorize
the imposition of a tax which the State of New York or the City of
Canandaigua is without power or authority to impose by virtue of the
provisions of the constitution of the United States.
