[Adopted 5-12-2005 by L.L. No. 1-2005]
The short title of this article is "Utility
Tax."
Pursuant to the authority granted by Article
5, § 5-530, of the Village Law of the State of New York,
from and after June 1, 2005, there is hereby imposed a tax such as
was imposed by New York State Tax Law § 186-a in effect
on January 1, 1959. Accordingly there is imposed:
A.
A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Horseheads which is
subject to the supervision of the New York State Department of Public
Service and which has an annual gross income for the year ending December
31 in excess of $500 except motor carriers or brokers subject to such
supervision under Article 3-B of the Public Service Law.
B.
A tax equal to 1% of the gross operating income of
every other utility doing business in the Incorporated Village of
Horseheads which has an annual gross operating income for the year
ending December 31 in excess of $500.
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 this state, 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
materials used, labor or services or other costs, interest or discount
paid, or any other expense whatsoever.
Provided, however, that all receipts from sales
of the transportation, transmission or distribution of gas or electricity
by means of conduits, mains, pipes, wires, lines, or the like, rendered
or performed in this state, shall be included in gross income.
Provided, further, receipts received from the
sale of the transportation, transmission or distribution of gas or
electricity shall mean the receipts received from customers representing
the noncommodity charges for gas or electric service.
Provided, further, gross income with respect
to a provider of telecommunications services shall not include receipts
from the sale of telecommunications services as such services are
defined in § 186-e of the Tax Law.
Provided, further, sales of gas, electricity,
steam, water or refrigeration or gas, electric, steam, water or refrigerator
service to a landlord that is a person as defined in this section
for resale by such landlord to a tenant for consumption by such tenant
as an incident to such landlord's activity of renting premises to
such tenant shall be subject to the tax imposed under this section
even though such sales are not for ultimate consumption by such landlord.
Provided, further, receipts derived by a landlord from the resale
for such gas, electricity, steam, water or refrigeration or furnishing
gas, electric, steam, water or refrigerator service to such tenant
shall be conclusively presumed to be equal to such landlord's cost
of the same, and, if the tax under Tax Law § 186-a was imposed
on the sale to such landlord, no additional tax under Tax Law § 186-a
shall be owing on the sale by such landlord to such tenant. If, however,
the tax under Tax Law § 186-a was not imposed on such sale
to the landlord, then such landlord on the sale to its tenant shall
file a return hereunder based on such landlord's cost (including any
associated transportation cost) of such gas, electricity, steam, water
or refrigeration or gas, electric, steam, water or refrigerator service.
"Gross income" also includes 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 this state 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; also profits from any transaction
(except sales for resale and rentals) within this state whatsoever.
Notwithstanding the above, the words "gross
income" shall include, in the case of a utility selling telephony
or telephone service, only receipts from local exchange service wholly
consummated within the Village, and, in the case of a utility engaged
in selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village.
Includes receipts received in or by reason of any sale, conditional
or otherwise, made for the ultimate consumption or use by the purchaser
of gas, electricity, steam, water or refrigeration, or in or by reason
of the furnishing for such consumption or use of gas, electricity,
steam, water or refrigeration service in this state, 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
the materials used, labor or services or other costs, interest or
discount paid, or any other expenses whatsoever; provided, however,
there shall be excluded from gross operating income receipts representing
the amount received from the resale of the transportation, transmission
or distribution of gas or electricity in this state where such transportation,
transmission or distribution being resold is provided by a utility
subject to tax under Tax Law § 186-a, Subdivision (1)(b);
the receipts representing the amount received from resale of such
transportation, transmission or distribution shall be the amount received
for such transportation, transmission or distribution by such utility
which initially provided such transportation, transmission or distributions;
provided, further, sales of gas, electricity, steam, water or refrigeration
or gas, electric, steam, water or refrigerator service to a landlord
that is a person as defined in this article for resale by such landlord
to a tenant, for consumption by such tenant as an incident to such
landlord's activity of renting premises to such tenant, shall be subject
to the tax imposed hereunder even though such sales are not for ultimate
consumption by such landlord; and provided, further, receipts derived
by a landlord from the resale of such gas, electricity, steam, water
or refrigeration or furnishing as, electric, steam, water or refrigerator
service to such tenant shall be conclusively presumed to be equal
to such landlord's cost of the same, and, if the tax hereunder was
imposed on the sale to such landlord, no additional tax hereunder
shall be owing on the sale by such landlord to such tenant. If the
tax hereunder was not imposed on such sale to the landlord, then such
landlord on the sale to its tenant shall file a return hereunder based
on such landlord's cost (including any associated transportation cost)
of such gas, electricity, steam, water or refrigeration or gas, electric,
steam, water or refrigerator service.
Persons, corporations, companies, associations, joint-stock
companies or associations, partnerships and limited-liability companies,
estates, assignees 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 [provided, however,
that with respect to gas, electricity and gas or electric service,
including the sale of the transportation, transmission or distribution
of gas or electricity, such municipalities, political and civil subdivisions
and public districts shall be excluded from the definition of "person"
if they own and operate facilities which are used to generate or distribute
electricity or distribute gas and they distribute and sell such gas
or electricity solely at retail, solely within their respective jurisdiction;
or provided, further, with respect to the sale of electricity or the
transportation, transmission or distribution of electricity, a municipality
shall be excluded from the definition of "person" if it sells electricity
at retail where all such electricity (excluding temporary substitution
power during outages or period of reduced output) has been generated
solely by and purchased solely from the state or a public authority
of the state]; corporations and associations which are organized and
operated exclusively for religious, charitable or educational purposes,
no part of the net earnings of which inures to the benefit of any
private shareholder or individual, and which are described in Paragraph
(4) of Subdivision (a) of § 1116 of the Tax Law where such
organization resells such gas or electricity or gas or electric service
as landlord to its tenants in buildings owned by such organization;
and excepting a corporation organized and operated exclusively for
the purpose of leasing from a 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.
Includes any real property or part thereof, and any structure
thereon or space therein.
The same meaning as such term is defined in § 186-e
of the Tax Law.
Includes a person paying, or required to pay, rent for premises
as a lessee, sublessee, licensee or concessionaire.
Includes every person (including every provider of telecommunications
services) 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 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 or refrigeration, delivered through mains, pipes or wires, or
furnishes gas, electric, steam, water or refrigerator 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.
The Village of Horseheads.
This article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Village
of Horseheads.
B.
Not apply and the tax shall not be imposed on any
transaction originating or consummated outside of the territorial
limits of the Village of Horseheads notwithstanding that some acts
be necessarily performed with respect to such transaction within such
limits;
C.
Be in addition to any and all other taxes and fees
imposed by any other provisions of law; and
D.
Apply to all subject income received on and after
June 1, 2005.
All revenues resulting from the imposition of
the tax imposed by this article shall be paid into the treasury of
the Village and shall be credited to and deposited in the general
fund of the Village.
A.
The Village Treasurer shall be the chief enforcement
officer of this article and shall make and be responsible for all
collections hereunder. He or she shall also have the power and authority
to make any rules or regulations or directives, not inconsistent with
law, which in his or her discretion are reasonably necessary to facilitate
the administration of this article and the collection of the taxes
imposed hereby. Copies of all such rules and regulations and directives,
as may from time to time be promulgated, shall be sent by registered
mail to all utilities subject to this article which register as such
with the Village Treasurer. All such rules, regulations and directives
shall be deemed a portion of this article.
B.
For the purpose of proper administration of this article
and to prevent evasion of the tax hereby imposed, it shall be presumed
that all amounts received by a utility are gross income or gross operating
income and are subject to tax until the contrary is established, and
the burden of proving that any such amount is not taxable hereunder
shall be upon the utility.
A.
Time of filing. Every utility subject to a tax hereunder
shall file, on or before August 1 a return for the three calendar
months ending on the preceding June 30, on or before November 1 a
return for the three calendar months ending on the preceding September
30, on or before February 1 a return for the three calendar months
ending on the preceding December 31, and on or before May 1 a return
for the three calendar months ending on the preceding March 31, including
any period for which the tax imposed hereby or amendment thereof is
effective. However, any utility whose average gross income or gross
average operating income for the aforesaid three-month periods is
less than $3,000 may file a return annually on or before February
1 for the preceding 12 calendar months ending December 31, including
any period for which the tax imposed hereby or any amendment thereof
is effective. Any utility, whether subject to tax under this article
or not, may be required by the Village Treasurer to file an annual
return.
B.
Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by the Treasurer for such purpose
and shall show thereon the gross income or gross operating income
for the period covered by the return and such other information, data,
or matter as the Village Treasurer may require to be included therein.
The Village Treasurer may require any utility doing business in the
Village to file at any time a further or supplemental return, containing
any data that the Village Treasurer may specify, and the Village Treasurer
may require any such utility to file an annual return, containing
any data so specified, 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 of a co-partner thereof, or of a principal corporate officer
to the effect that the statements contained therein are true.
C.
Every utility subject to this article shall keep 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. Such records
shall be available for inspection and examination at any time upon
demand of the Village Treasurer or designated agent.
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 the filing of the return or,
if a return is not filed when due, on the first day when the return
is required to be filed.
A.
Any utility 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, excepting 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.
B.
Any utility or person who, with intent to evade the
tax imposed by this article, fails to pay the tax when due shall pay
a penalty equal to the amount of tax due plus interest at the rate
of 1% of such tax for each full month from the due date of the tax
to the date of payment.
C.
Any utility willfully failing to file a return required
by this article, or filing or causing to be filed or making or giving
or causing to be given any return, certificate, affidavit, representation,
information, testimony or statement required or authorized by this
article which is willfully false, and any utility failing to keep
records required by this article 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.
D.
The certificate of the Village Treasurer to the effect
that a tax has not been paid or that information has not been supplied
pursuant to the provisions of this article shall be presumptive evidence
thereof.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
he or she may require at any time a further or supplemental return,
which shall contain any data that may be specified by him or her,
and, if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the Treasurer, or, if no
return is made for any period, the Village Treasurer shall determine
the amount 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 utility liable for such tax. Such determination shall finally
and irrevocably fix such tax, unless the utility 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, on his or her own motion, shall reduce the same. After
such hearing, the Treasurer shall give notice of his or her determination
to the utility 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 such notice of such
final determination; provided, however, that any such proceeding under
this 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 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 be dismissed or the tax confirmed, the petitioner
will pay all costs and charges which may accrue in the prosecution
of such proceeding.
Any notice authorized or required under the
provisions of this article may be given by mailing the same to the
utility for which it is intended, in a postpaid envelope, addressed
to such utility at the address given by it in the last return filed
by it 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 utility
to which addressed. Any period of time which is determined according
to the provisions of this article by giving of notice shall commence
to run from the date of mailing of such notice.
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 charged, 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, if the Village Treasurer
as hereinbefore provided, on his or her own motion, shall have reduced
the tax or penalty or it shall have been established in a proceeding
in the manner provided in the Civil Practice Law and Rules that such
determination was erroneous or illegal. 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 any additional evidence with respect thereto.
After making his or her determination, the Village Treasurer shall
give notice thereof to the person interested, and he or she shall
be entitled to commence a proceeding to review such determination
in accordance with the provisions of the following Section hereof.
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 he
or she 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
instituted 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 Village 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.
Except in the case of a willfully false or fraudulent
return with the intent to evade the tax, no assessment or additional
tax shall be made with respect to taxes imposed under this article
after expiration of more than three years from the date of filling
of a return; provided, however, that where no return has been filed
as required hereby, the tax may be assessed at any time.
In addition to any other powers herein given,
and in order to further payment of the tax imposed hereby, the Village
Treasurer shall have the power to:
All of the provisions of Tax Law § 186-a,
so far as same are or can be made applicable, with such limitations
as are set forth in Village Law § 5-530 and this article,
and such modifications as may be necessary in order to adapt such
taxes allowed by Tax Law § 186-a to local conditions, shall
apply to the taxes authorized by this article.
A.
Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Village
Treasurer, or any agent, clerk or employee of the Village, 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 in an action or proceeding under the provisions
of this article or on behalf of the State Tax Commission in any 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 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 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.
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, he or she may be dismissed
from office and shall be incapable of holding any office or employment
in the Village for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the
Village 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 article, provided that such city or other
village grants similar privileges to the Village, 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.
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 law and penalty
imposed by § 186-a of the Tax Law is made a lien.
[Amended 3-25-2010]
This article is extended indefinitely. This
article may be amended, added to or extended as deemed necessary by
the Village of Horseheads Board of Trustees by local law, resolution
or motion adopted in accordance with law.
