[Adopted 12-27-1971 by L.L. No. 2-1971 as Ch. 125 of the 1971 Code]
Pursuant to the authority granted by § 6-640
of the Village Law of the State of New York,[1] a tax equal to 1% of its gross income from and after the
first day of January 1971 is hereby imposed upon every utility doing
business in the Village of Depew, New York, which is subject to the
supervision of the State Department of Public Service, which has a
gross income for 12 months ending May 31 in excess of $500, except
motor carriers or brokers subject to such supervision under Article
3-B of the Public Service Law,[2] and a tax equal to 1% of its gross operating income from
and after the first day of January 1971 is hereby imposed upon every
other utility doing business in the Village of Depew, New York, which
has a gross operating income for the 12 months ending May 31 in excess
of $500, which taxes shall have application only within the territorial
limits of the Village of Depew, New York, and shall be in addition
to any and all other taxes and fees imposed by any other provision
of law. Such taxes shall not be imposed on any transaction originating
or consummated outside of the territorial limits of the Village of
Depew, New York, 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 the 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 Depew, New York, 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 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 Depew, New
York, 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 Depew, New York,
whatsoever; provided, however, that 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 Depew, New York, and in the case
of a utility engaged in selling telephony or telephone service, only
receipts from transactions wholly consummated within the Village of
Depew, New York.
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, refrigeration, telephone or telegraph
service in the Village of Depew, New York, 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, 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, municipality,
and public districts.
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 or 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, 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, or as the Village Board may require, and such
records shall be preserved for a period of three years, except that
the Village Treasurer or the Village Board 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 September 25, December 25, March 25, and June 25,
a return for the three calendar months preceding each such return
date including any period for which the tax imposed hereby or by any
amendment hereof is effective. Every return shall state the gross
income or gross operating income for the period covered thereby. 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 he may require to be included therein. The Village Treasurer,
in order to insure 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 him, and he may require any utility doing
business in the Village of Depew, New York, 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 an affidavit of 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 the filing of a return as required
by this article, each utility shall pay to the Village of Depew 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 him, 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.
He 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 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 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. Such decision 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 90 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, 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 applicant will pay all costs and charges which may accrue in the
prosecution of such proceeding, or at the option of the application,
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. Except in the case
of willfully false or fraudulent return with intent to evade the tax,
no assessment of additional tax shall be made after the expiration
of more than three years from the date of the filing of a return;
provided, however, that where no return has been filed as required
by this article 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
persons 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 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,
for cause shown, may extend the time for filing any return, and 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 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 own motion, shall
have reduced the tax or penalty or if 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 shall give notice thereof
to the person interested, and he shall be entitled to an order to
review such determination under said Article 78 of the Civil Practice
Law and Rules of the State of New York, subject to the provision 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 costs 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 Board, 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 § 108, 6(a), of the Tax Law[1] is made a lien.
[1]
Editor's Note: So in original.
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 the attendance of
witnesses and the production of books, papers and documents.
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 Depew,
New York, 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 Depew, New York,
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 admit in evidence, as 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 duly authorized representative,
of a copy of any return filed by him, 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 representative of the Village
of Depew, New York, 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.
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 of Depew, New York, he shall be dismissed from office,
and shall be incapable of holding any office or employment for the
Village of Depew, New York for a period of five years thereafter.
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 such city or Village grants similar
privileges to the Village of Depew, New York, and provided 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 under this article shall be paid into the treasury of the
Village of Depew, New York, and shall be credited to and deposited
in the general fund of the Village.
