[Adopted 8-20-1973 as Subpart M
of Part I of the 1973 Code]
[Amended 12-21-1993 by L.L. No. 1-1993]
Pursuant to the authority granted by § 5-530
of the Village Law of the State of New York, a tax equal to 1% of
its gross income for each and every twelve-month period commencing
from April 1, 1969, and thereafter is hereby imposed on every utility
doing business in the Village of Johnson City which is subject to
the supervision of the State Department of Public Service, except
motor carriers or brokers subject to such supervision under Article
9 of the Transportation Law, which has a gross income for 12 months
ending May 31 in excess of $500, and a tax equal to 1% of its gross
operating income is hereby imposed for the same period upon every
other utility doing business in the Village of Johnson City which
has a gross operating income for 12 months ending May 31 in excess
of $500, which taxes shall have application only within the territorial
limits of the Village of Johnson City and shall be in addition to
any and all other taxes and fees imposed by any other provision of
law for the same period. Such taxes shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the
Village of Johnson City, 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:
GROSS INCOME
Includes receipts received in or by any reason of sale, conditional
or otherwise (except sales hereinafter referred to with respect to
which it is provided that profits from sale shall be included in gross
income), made or service rendered for ultimate consumption or use
by the purchaser in the Village of Johnson City, 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 profits 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
Johnson City 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 Johnson City whatsoever. Notwithstanding any other provision of
this section or of § 186-a of the Tax Law, the words "gross
income" shall include:
A.
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 Johnson City.
B.
In the case of a utility selling telegraphy
or telegraph service, only receipts from transactions wholly consummated
within the Village of Johnson City.
C.
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 Johnson City, 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 or municipality and
public districts.
UTILITY
Includes every person subject to the supervision of any division
of the State Department of Public Service, except persons engaged
in the business of operating on the public highways of this state
one (1) or more omnibuses having a seating capacity of more than seven
(7) 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, 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 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 (3) years, except that the Village Treasurer may consent
to their destruction within that period or may require that they be
kept longer.
A. Every utility subject to tax hereunder shall file
annually on or before March 25, June 25, September 25 and December
25 a return for the three (3) calendar months preceding such return
date, including any period for which the tax imposed hereby or by
any amendment hereof 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 or her for such purpose and shall
contain such other data, information or matter as the Village Treasurer
may require to be included therein.
B. Every utility subject to tax hereunder shall file
annually, on or before the 25th day of February, a return for twelve
(12) calendar months ending December 31 preceding such return date
or any portion thereof for which the tax imposed hereby is effective,
which 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 or her 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 is conducted by a corporation,
to the effect that the statements contained therein are true.
C. The Village 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 the Village
Treasurer. The Village Treasurer may require any utility doing business
within the confines of the Village of Johnson City to file an annual
return, which shall contain any data specified by him or her, regardless
of whether the utility is subject to tax under this Article. Every
return shall have annexed thereto an affidavit of the head of the
utility making the same or of the owner or of the copartner thereof
or of the principal officer of the 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 twenty (20)
days after the same is required by notice from the Village Treasurer
or if no return is made for any period, from such information as he
or she is able to obtain, and if necessary, the Village Treasurer
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 thirty (30) days after the giving of notice of such determination,
apply to the Village Treasurer for a hearing or unless the Village
Treasurer, of his or her own motion, shall reduce the same. After
such hearing, the Village Treasurer shall give notice of his or her
decision to the person liable for the tax. The decision of the Village
Treasurer 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 thirty (30) 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 Village
Treasurer and an undertaking filed with him or her, in such amount
and with such sureties as a Justice of the Supreme Court shall approve
to the effect that if such order is dismissed or the tax confirmed,
the applicant for the order 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.
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 or her in the last return
filed by him or her 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 corrected
return or to pay a tax or any portion thereof within the time required
by this Article shall be subject to a penalty of five per centum (5%)
of the amount of tax due, plus one per centum (1%) of such tax for
each month of delay or fraction thereof excepting the first month
after which the 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 the penalty fixed by the foregoing
provisions of this section.
If within one (1) year from the payment of any
tax or penalty the payer thereof 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 or her 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
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 or her determination, the Village
Treasurer shall give notice thereof to the person interested, and
he or she shall be entitled to an order to review such determination
under said Article 78, subject to the provisions hereinbefore contained
relating to the granting of such an order.
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 cost of such utility.
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 tax and penalty
imposed by § 186-a of the Tax Law is made a lien.
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 or her powers and the performance of his or her 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 or her official duty under this Article 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 Village
Treasurer or any agent, clerk or employee of the Village of Johnson
City 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 of Johnson City in an action or proceeding
under the provisions of this Article 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 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 omit 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 or her duly authorized representative of a copy
of any return filed by him or her, 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 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 Johnson City 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 provision
shall be punishable by a fine not exceeding one thousand dollars ($1,000.)
or by imprisonment not exceeding six (6) months, or both, and if the
offender is an officer, agent, clerk or employee of the Village of
Johnson City, he or she shall be dismissed from office and shall be
incapable of holding any office or employment in the Village of Johnson
City for a period of five (5) years thereafter.
C. Notwithstanding any provisions of this Article, the
Village Treasurer may exchange with the chief fiscal officer of any
city or any first class village in the State of New York information
contained in returns filed under this Article, provided that such
other city or village grants similar privileges to the Village of
Johnson City, 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.
All taxes and penalties received by the Village
Treasurer for taxes heretofore or hereafter imposed under this Article
shall be credited and deposited by him or her in the general fund
of the village.