Pursuant to the authority granted by Article 6, § 6-640 of
the Village Law of the State of New York, from, on and after April 1, 1968,
there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Highland Falls which is subject
to the supervision of the New York State Department of Public Service and
which has an annual gross income 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 or every
other utility doing business in the Incorporated Village of Highland Falls
which has an annual gross operating income in excess of $500.
As used in this article, the following terms shall have the meanings
indicated:
GROSS INCOME
Includes, in the case of a utility engaged in selling telephony or
telephone service, only receipts from local exchange service wholly consummated
within the Village. In the case of a utility engaged in selling telegraphy
or telegraph service, only receipts from transactions wholly consummated within
the Village. 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, including cash, credits and property of any kind or nature (whether
or not such service is rendered for profit) without any deductions 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. Profits from the sale of securities; profits from the sale of
real property growing out of the ownership or use of or interest in such property;
profits from the sale of personal property (other than property of a kind
which would properly be included in the inventory of a 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 (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) with the Village
whatsoever.
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 the consumption or use of gas, electric, steam,
water, refrigerator, telephone or telegraph service in the Village, including
cash, credits and property of any kind or nature, without deduction therefrom
on account of the cost of the property sold, the cost of materials used, labor
or services or other costs, interest or discounts paid, or any other expense
whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock associations,
copartnerships, estates, assignees of rent, 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, municipality, public districts and corporations and associations
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.
UTILITY
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, and persons engaged in the business
of operating railroads other than street surface, rapid transit, subway and
elevated railroads or omnibus corporations subject to supervision under Article
3-A of the Public Service Law. Every person who sells gas, electricity, steam,
water, refrigeration, telephony or telegraphy delivered through mains, pipes
or wires, whether or not such person is subject to the supervision of the
State Department of Public Service; every person who 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.
This law and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village
of Highland Falls.
B. Not apply and the tax shall not be imposed on any transaction
originating or consummated outside the territorial limits of the Village of
Highland Falls, notwithstanding that some act 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.
D. Apply to all subject income received on and after July
1, 1968.
All revenues resulting from the imposition of the tax imposed by this
law shall be paid into the treasury of the Village and shall be credited to
and deposited in the general fund of the Village.
The Village Treasurer shall be the chief enforcement officer of this
law and shall make and be responsible for all collections hereunder. He shall
also have the power and authority to make any rules or regulations or directives,
not inconsistent with law, which, in his discretion, are reasonably necessary
to facilitate the administration of this law 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.
At the time of filing as required by this law, 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 last day on which
the return is required to be filed.
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.
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.
In case any return filed pursuant to this law shall be insufficient
or unsatisfactory to the Village Treasurer, he may require at any time a further
or supplemental return, which shall contain any data that may be specified
by him, 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 Village Treasurer shall determine the amount 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 utility liable for such tax. Such determination shall
finally and irrevocably fix such tax, unless the utility against which it
is assessed shall, within one year after the giving of such determination,
apply to him for a hearing, or unless the Village Treasurer, of his own motion,
shall reduce the same. After such hearing he shall give notice of his decision
to the utility liable for such 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 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 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 section by the giving of notice shall commence to run from
the date of mailing of such notice.
If, from 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 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 in the
manner provided in the Civil Practice Law and Rules that such determination
was erroneously or illegally formed. 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, 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 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 proceedings 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 law after the expiration of more than
three years from the date of filing 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 the Village Treasurer and
in order to further ensure payment of the tax imposed hereby, he shall have
the power to:
A. Prescribe the form of all reports and returns required
to be made hereunder.
B. Take testimony and proofs, under oath, with reference
to any matter hereby entrusted to him.
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
Whenever a 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 of the Tax Law is made a lien.
This article shall take effect March 1, 1969.