[HISTORY: Adopted by the Board of Trustees of the Village
of Brockport 5-15-1958. Amendments noted where applicable.]
Pursuant to the authority granted by Section 131 of the Village
Law of the State of New York, a tax equal to 1% of its gross income from and after the
first day of June 1958 is hereby imposed upon every utility doing
business in the Village of Brockport 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, 1958, 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 June 1958 is hereby imposed upon every
other utility doing business in the Village of Brockport which has
a gross operating income for the 12 months ending May 31 in excess
of $500, which taxes shall have application only within the territorial
limits of the Village of Brockport 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 Village of Brockport,
notwithstanding that some act be necessarily performed with respect
to such transaction within such limits.
As used in this chapter, the following terms shall have the
meanings indicated in this section:
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 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 Brockport, 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 cost of the period for which a return is made; also
receipts from interest, dividends and royalties derived from sources
within the Village of Brockport 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 Brockport 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 Village of Brockport, and in
the case of a utility engaged in selling telegraphy or telegraph service,
only receipts from transactions wholly consummated within the Village
of Brockport.
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 Brockport, 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 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, municipality and public
districts.
UTILITY
As used in this chapter, includes every person subject to
the supervision 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 chapter shall keep such
records of its business and in such form as the Treasurer may require,
and such records shall be preserved for a period of three years, except
that the 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 annually,
on or before the 31st day of January, a return for the calendar year
preceding the month of such return date or any portion thereof for
which the tax imposed hereby is effective; provided, however, that
in lieu of the annual return required by the foregoing provisions,
any utility may file quarterly, on or before March 31, June 30, September
30 and December 31, a return for the three calendar months preceding
the month of each such return date, and in the case of the first such
return, for all preceding calendar months during which the tax imposed
hereby was effective. Every return shall state the gross income or
gross operating income for the period covered thereby. Returns shall
be filed with the Treasurer on a form to be furnished by him for such
purpose and shall contain such other data, information or matter as
he may require to be included therein. The 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 him, and he may require any utility doing business in the Village
of Brockport to file an annual return, which shall contain any data
specified by him, regardless of whether the utility is subject to
tax under this chapter. 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 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 chapter,
each utility shall pay to the Treasurer the tax imposed by this chapter
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 chapter shall be insufficient
or unsatisfactory to the 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 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 Treasurer for a hearing or unless the
Treasurer of his own motion shall reduce the same. After such hearing,
the 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 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 a 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 chapter,
the tax may be assessed at any time.
Any notice authorized or required under the provisions of this
chapter 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 chapter
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 chapter 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
chapter 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 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 section.
If within one year from the payment of any tax or penalty the
payer thereof shall make application for a refund thereof, and the
Treasurer or the court shall determine that such tax or penalty or
any portion thereof was erroneously or illegally collected, the 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 Treasurer.
However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Treasurer as hereinbefore provided, unless
the 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 chapter. 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 Treasurer may receive additional
evidence with respect thereto. After making his determination, the
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 provision hereinbefore contained relating
to the granting of such an order.
The tax imposed by this chapter 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 chapter, the Village Attorney shall, upon the request of the
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 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 chapter, the 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 chapter
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 Treasurer or any agent, clerk
or employee of the Village of Brockport 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 chapter.
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 Brockport in an action or proceeding under the provisions
of this chapter, 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 chapter 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 chapter, together with any
relevant information which, in the opinion of the 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
Brockport 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 chapter.
B. 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 Village of Brockport, he shall be dismissed from office
and shall be incapable of holding any office or employment in the
Village of Brockport for a period of five years thereafter.
C. Notwithstanding any provisions of this chapter, the Treasurer may
exchange with the chief fiscal officer of any city or any other village
in the State of New York information contained in returns filed under
this chapter, provided such city or other village grants similar privileges
to the Village of Brockport, and provided such information is to be
used for tax purposes only; and the Treasurer shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Treasurer under this
chapter shall be paid into the treasury of the Village and shall be
credited to and deposited in the general fund of the Village.
This chapter shall take effect June 1, 1958.