[Adopted 6-17-1968 by L.L. No. 1-1968]
A tax equal to 1% of its gross income or of gross operating income,
as the case may be, from and after June 1, 1968, is hereby imposed upon every
utility doing business in the Village of Middleport. This tax shall have application
only within the territorial limits of the Village of Middleport and shall
be in addition to any and all other taxes. Such tax shall not be imposed on
any transaction originating or consummated outside the territorial limits
of the Village of Middleport, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
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 the Village of Middleport, 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; 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 Village of Middleport 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
the Village of Middleport whatsoever.
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 Middleport, 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.
Persons, corporations, companies, associations, joint-stock associations,
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,
municipalities, political and civil subdivisions of the state or 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.
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 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
provision) 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.
Notwithstanding any other provisions of this article or of § 186-a
of the Tax Law of the State of New York, 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 Middleport; and in the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly consummated
within the Village of Middleport.
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 annually, on or before
the 25th day of February, a return for the 12 consecutive months ending December
31 preceding 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 May 25, August 25, November 25 and February 25, a return for the three
calendar months preceding each such return date, and in the case of the first
such return, for all preceding calendar months during which the tax imposed
was effective. Every return shall state the gross income or gross operating
income for the period covered. 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. 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 be 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 as provided
by § 5-530 of the Village Law of the State of New York. 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 as provided by § 5-530 of the Village
Law of the State of New York.
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 section, or, if no return has been
filed, then to such address as may be obtainable. The mailing of such notice
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 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.
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 in the manner provided by § 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 as provided by § 5-530 of the Village
Law.
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 under
the provisions of this article, the Village Attorney shall, upon the request
of the Village Treasurer, bring an action to enforce the 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 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 article, and to subpoena and require of witnesses
and the production of books, records, papers and documents.
