[Adopted 9-11-1972 by L.L. No. 1-1972 (Ch.
40, Art. I, of the 1979 Code)]
A tax equal to 1% of its gross income or of
its gross operating income, as the case may be, from and after October
1, 1972, is hereby imposed upon every utility doing business in the
Village of Delhi. This tax shall have application only within the
territorial limits of the Village of Delhi and shall be in addition
to any and all other taxes. Such tax shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the
Village of Delhi, notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
[Amended 4-18-1994 by L.L. No. 3-1994; 2-23-2009 by L.L. No.
3-2009]
The terms used in this article shall be defined
as provided in § 186-a of the Tax Law and Subdivision 4
of § 5-530 of the Village Law.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Village
Treasurer may require, and 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 January 25, April 25, July 25 and October 25, a
return for the three calendar months preceding each such return date
or any portion thereof for which the tax imposed hereby 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 to be furnished by him
for such purpose and shall contain such other data, information or
matter as the Village 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-month period is less than $1,500
may file a return annually on July 25 for the 12 preceding calendar
months, and the Village Treasurer may require any utility to file
an annual return which shall contain any data specified by him, regardless
of whether the utility is subject to tax under this article. Every
return shall have annexed thereto a certification by 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 article, each utility shall pay to the Village 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 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 one year after the giving of notice of such
determination, apply to the Village Treasurer for a hearing or unless
the Village Treasurer, of 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. 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 if the proceeding
is commenced within 90 days after the giving of the notice of such
final determination; provided, however, that any such proceeding under
said Article 78 shall not be instituted unless the amount of any tax
sought to be reviewed, with such interest and penalties thereon as
may be provided for by local law, ordinance or resolution, shall be
first deposited and an undertaking filed in such amount and with such
sureties as a Justice of the Supreme Court shall approve, to the effect
that, if such proceeding is dismissed or the tax confirmed, the petitioner
will pay all costs and charges which may accrue in the prosecution
of such proceeding.
Where any tax imposed hereunder shall have been
erroneously, illegally or unconstitutionally collected and application
for the refund thereof duly made to the Village Treasurer, and such
officer 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; provided, however, that such
proceeding is commenced within 90 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 proper fiscal officer
or officers in such amount and with such sureties as a Justice of
the Supreme Court shall approve, to the effect that if such proceeding
is dismissed or the tax confirmed, the petitioner will pay all costs
and charges which may accrue in the prosecution of such proceeding.
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 with respect to taxes imposed under this section after
the expiration of more than three years from the date of the filing
of a return, provided that where no return has been filed as provided
herein, 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
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 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 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.
[Amended 4-18-1994 by L.L. No. 3-1994]
If, within one year from the giving of notice
of any determination or assessment of any tax or penalty, the person
liable for the tax 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 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 and § 5-530
of the Village Law 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 commence a proceeding
to review such determination subject to the provisions of Article
78 of the Civil Practice Law and Rules and § 5-530 of the
Village Law of the State of New York.
The tax imposed by this article shall be charged
against and be paid by the utility and may be added as a separate
item to bills rendered by the utility to customers or others.
Whenever any person shall fail to pay any tax
or penalty imposed under the provisions of 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.
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 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 witness
and the production of books, records, papers and documents.
This article shall take effect on the first
day of October 1972.
