[Adopted 5-14-1968 by L.L. No. 1-1968]
Pursuant to the authority granted by Article
5, § 5-530, 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 hereafter, commencing with June 1 in each year
in which it has a gross income in excess of $500, is hereby imposed
upon every utility doing business in the Village of Russell Gardens
which is subject to the supervision of the State Department of Public
Service, and a tax equal to 1% of its gross operating income is hereby
imposed for each and every such twelve-month period upon every other
utility doing business in the Village of Russell Gardens which has
a gross operating income for each twelve-month period in excess of
$500. Said taxes shall have application only within the territorial
limits of the Village of Russell Gardens and shall be in addition
to any and all other taxes and fees imposed by any other provision
of law for the same period, except that motor carriers, brokers and
omnibus corporations shall be excluded from such tax. Such taxes shall
not be imposed on any transaction originating or consummated outside
of the territorial limits of the Village of Russell Gardens, notwithstanding
that some act is necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: The former statutory reference
was to Article 6. § 6-640, of the former Village Law and
was updated during codification to refer to the current Village Law.
As used in this article, the following terms
shall have the meanings indicated:
Receipts received in or by reason of any sale
made, 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," or service rendered for ultimate
consumption or use by the purchaser in the Village of Russell Gardens,
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 cost, interest
or discount paid or any other expenses whatsoever.
Profits from the sale of securities.
Profits from the sale of real property growing
out of the ownership, use of or interest in such property.
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.
Receipts from interest, dividends and royalties
derived from sources within the Village of Russell Gardens, 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.
Profits from any transaction, except sales for
resale and rentals, within the Village of Russell Gardens 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 Village of Russell Gardens, 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.
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 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 shall engage
in the business of selling gas, electricity, steam, water, refrigeration,
telephony or telegraphy delivered through mains, pipes or wires, or
furnishing gas, electric, steam, water, refrigeration, telephone or
telegraph service by means of mains, pipes or wires.
Every utility subject to tax under this Article
shall keep such records of its business and in such form as were required
by the State Tax Commission under § 186-a of the Tax Law
in effect on January 1, 1959, unless such record and form shall be
otherwise prescribed by the Village Treasurer. 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.
Every utility subject to tax hereunder shall
file, on or before each September 25, December 25, March 25 and June
25 hereafter, 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 Village Treasurer
on a form in use by the State Tax Commission under § 186-a
of the Tax Law in effect on January 1, 1959, unless another form shall
be prescribed by the Village Treasurer, and said form shall contain
such other data, information or matter as the Village 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-month
period is less than $1,500 may file one return only each year, on
June 25 in each year, to cover the preceding twelve-month period ending
May 31. The Village Treasurer, in order to ensure 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 Village
Treasurer. Every return shall have annexed thereto an affidavit by
the head of the utility making the same, or the owner or a copartner
thereof, or a principal officer of the corporation, if such business
is 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 hereby 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 Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the 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. 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 Treasurer for a hearing, or unless
the Village Treasurer, on his own motion, shall reduce the same. After
such hearing, the Village Treasurer shall give notice of his decision
to the person liable for the tax. The decision of the Village 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 90 days after the giving of notice of such decision. A
judgment 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 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 (judgment) is dismissed or the tax confirmed, the
applicant for the judgment 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 hereunder, 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 a 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 the tax due, plus 1% of such tax for each month of delay, or fraction
thereof, except the first month, after such return was required to
be filed or such tax became due; but the Village 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 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.
For like cause and within the same period, a refund may be so made
on the initiative of the Village Treasurer. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
Village Treasurer, as hereinbefore provided, unless the Village Treasurer,
after a hearing as hereinbefore provided, or on 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 Village Treasurer may receive additional evidence
with respect thereto. After making his determination, the Village
Treasurer shall give notice thereof to the person interested, and
he shall be entitled to a judgment 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 costs 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 Village 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 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
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; 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 the proper judicial orders
or as otherwise provided by law, it shall be unlawful for the Village
Treasurer, or any agent, clerk or employee of the Village of Russell
Gardens, 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 Russell Gardens 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 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. 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 Russell Gardens 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.
Notwithstanding any provisions of this Article, the
Village Treasurer may exchange with the chief fiscal officer of any
other municipality in the State of New York information contained
in returns filed under this Article, provided that such other municipality
grants similar privileges to the Village of Russell Gardens, 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 for taxes heretofore or hereafter imposed under this Article
shall be credited and deposited by him in the general fund of the
Village of Russell Gardens.
