[Adopted 8-25-1981 by L.L. No. 1-1981
as Ch. 125 of the 1981 Code]
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 from and after the first day of July 1937 is hereby
imposed upon every utility doing business in the City of Glen Cove,
New York, which is subject to the supervision of the State Department
of Public Service, which has a gross income for 12 months ending May
31 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 from
and after the first day of July 1937 is hereby imposed upon every
other utility doing business in the City of Glen Cove, New York, 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 City of Glen Cove 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 City of Glen Cove notwithstanding
that some acts be necessarily performed with respect to such transaction
within such limits.
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 City of Glen Cove, 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; 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 Glen Cove, New York, 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 Glen Cove, New York, 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
City of Glen Cove, New York, and in the case of a utility engaged
in selling telegraphy or telegraph service, only receipts from transactions
wholly consummated with the City of Glen Cove, New York.
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, refrigeration, telephone or telegraph
service in the City of Glen Cove, 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.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignee of rents, any person
acting in a fiduciary capacity or any other entity, and person, 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 earning of which inures to the benefit of any private shareholder
or individual and excepting a corporation organized and operated exclusively
for the purpose of leasing from the City in this state a waterworks
system designed to supply water at cost to users thereof for discharge,
either before or after industrial use, into a river within such City
in order to improve the flow and condition of such river and thereby
to provide a means to relieve such river from pollution.
UTILITY
Includes every person 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 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 Controller
may require, and such records shall be preserved for a period of three
years, except that the Controller 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 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 Controller on
a form to be furnished by him or her for such purpose, and shall contain
such other data, information or matter as the Controller 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'
period is less than $1,500 may file a return annually on June 25 for
the 12 preceding calendar months. The Controller may require any utility
doing business in the City of Glen Cove to file an annual return,
which shall contain any data specified by him or her regardless of
whether the utility is subject to tax under this section. The Controller
of the City of Glen Cove, 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 Controller. Every return
shall have annexed thereto an affidavit of the head of the utility
making the 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 the filing of a return as required
by this article, each utility shall pay to the Controller 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 Controller, and if
a corrected or sufficient return is not filed within 20 days after
the same is required by notice from him or her, or if no return is
made for any period, the Controller shall determine the amount of
tax due from such information as he or she is able to obtain, and
if necessary, may estimate the tax on the basis of external indices
or otherwise. He or she 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 Controller for a hearing, or unless the Controller, of
his or her own motion shall reduce the same. After such hearing, the
Controller shall give notice of his or her 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 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 Controller and an undertaking filed with him or her, 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 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 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 or her in the last return
filed by him or her 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 of
fraction thereof, excepting the first month, but the Controller, 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 Controller or the court shall determine that such
tax or penalty or any portion thereof was erroneously or illegally
collected, the Controller 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 Controller. However, no refund shall be made
of a tax or penalty paid pursuant to a determination of the Controller
as hereinbefore provided unless the Controller, after a hearing as
hereinbefore provided, or of his or her 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 Controller may receive additional evidence with respect
thereto. After making the determination, the Controller shall give
notice thereof to the person interested, and he or she 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 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 City Attorney shall, upon
the request of the Controller, bring an action to enforce payment
of the same. The proceeds of any judgment obtained in any such action
shall be paid to the Controller. Each such tax and penalty shall be
a lien on 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 Controller
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary for the exercise of his
or her powers and the performance of his or her 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 or her official
duty under this article, and to subpoena and require the attendance
of witnesses and the production of books, papers and documents.
Except in accordance with proper judicial order
or as otherwise provided by law, it shall be unlawful for the Controller,
or any agent, clerk or employee of the City of Glen Cove, New York,
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 City of Glen Cove, New York, 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 or her duly authorized representative, of a copy
of any return filed by him or her, nor to prohibit the publication
of statistics so classified as to prevent the identification of particular
returns and 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 Controller may
assist in the collection of such delinquent taxes; or the inspection
by the City Attorney or other legal representative of the City of
Glen Cove, New York, 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.
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 be an officer, agent, clerk or employee
of the City of Glen Cove, New York, he or she shall be dismissed from
office and shall be incapable of holding any office or employment
for the City of Glen Cove, New York, for a period of five years thereafter.
Notwithstanding any provisions of this article, the Controller may
exchange with the chief fiscal officer of any other City or any City
in the State of New York information contained in returns filed under
this article, provided that such City or any other City grants similar
privileges to the City of Glen Cove, New York, and provided that such
information is to be used for tax purposes only, and the Controller
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Controller
under this article shall be paid into the treasury of the City of
Glen Cove, New York, and shall be credited to and deposited in the
general fund of the City.