[Adopted 8-23-1972 by L.L. No. 1-1972]
[Amended 1-8-2002 by L.L. No. 1-2002]
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 from and after the first day of October 1972 is hereby
imposed upon every utility doing business in the Village of Shortsville
which is subject to the supervision of the State Department of Public
Service and which has a gross income for the 12 months ending May
31 in excess of $500, except motor carriers or brokers, and a tax
equal to 1% of its gross operating income from and after the first
day of May 1950 is hereby imposed upon every other utility doing business
in the Village of Shortsville 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 Shortsville
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 Shortsville, notwithstanding that some act
is necessarily performed with respect to such transaction within such
limits.
[Amended 1-8-2002 by L.L. No. 1-2002]
The terms used in this article shall be defined
as provided in § 186-a of the Tax Law.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Clerk/Treasurer
of the Village of Shortsville may require, and such records shall
be preserved for a period of three years, except that the Clerk/Treasurer
of the Village of Shortsville 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 March, a return for the
12 calendar months preceding such return date or any portion thereof
for which the tax hereby imposed is effective; provided, however,
that in lieu of the annual return required by the foregoing provisions,
any utility may file quarterly, on or before September 25, December
25, March 25 and June 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 hereby
was effective. Every return shall state the gross income or gross
operating income for the period covered thereby. Returns shall be
filed with the Clerk/Treasurer of the Village of Shortsville 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 Clerk/Treasurer of the Village of Shortsville, 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 him, and he may require any utility doing business in the Village
of Shortsville 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 filing a return as required by
this article, each utility shall pay to the Clerk/Treasurer of the
Village of Shortsville 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.
A. In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Clerk/Treasurer of
the Village of Shortsville, 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 Clerk/Treasurer of
the Village of Shortsville 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 the 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 Clerk/Treasurer
of the Village of Shortsville for a hearing or unless the Clerk/Treasurer
of the Village of Shortsville, of his own motion, shall reduce the
same. After such hearing, the Clerk/Treasurer of the Village of Shortsville
shall give notice of his decision to the person liable for such 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 Clerk/Treasurer
of the Village of Shortsville 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 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.
B. Except in the case of a 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 it was 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 the 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 the tax due, plus 1% of such tax for each month of delay
or fraction thereof, except the first month after such return was
required to be filed or such tax became due. The Clerk/Treasurer of
the Village of Shortsville, 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 Clerk/Treasurer of the Village of Shortsville or the
court shall determine that such tax or penalty or any portion thereof
was erroneously or illegally collected, the Clerk/Treasurer of the
Village of Shortsville 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 Clerk/Treasurer of the Village of Shortsville.
However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Clerk/Treasurer of the Village of Shortsville
as hereinbefore provided unless the Clerk/Treasurer of the Village
of Shortsville, 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 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 Clerk/Treasurer of the Village of
Shortsville may receive additional evidence with respect thereto.
After making his determination, the Clerk/Treasurer of the Village
of Shortsville shall give notice thereof to the persons interested,
and he shall be entitled to an order to review such determination
under said Article 78, 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 shall be paid by the utility, and said tax 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 Clerk/Treasurer of the Village of Shortsville,
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 Clerk/Treasurer
of the Village of Shortsville. 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 Clerk/Treasurer
of the Village of Shortsville shall have the 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;
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.
A. Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Clerk/Treasurer
of the Village of Shortsville or any agent, clerk or employee of the
Village of Shortsville 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 Shortsville in any action or proceeding under the provisions of
this article, 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 as the time and in the manner provided for by this article,
together with any relevant information which, in the opinion of the
Clerk/Treasurer of the Village of Shortsville, may assist in the collection
of such delinquent taxes; or the inspection by the Village Attorney
or other legal representatives of the Village of Shortsville 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
for a term not exceeding one year, or both; and if the offender is
an officer, agent, clerk or employee of the Village of Shortsville,
he shall be dismissed from office and shall be incapable of holding
any office or employment in the Village of Shortsville for a period
of five years thereafter.
C. Notwithstanding any provisions of this article, the
Clerk/Treasurer of the Village of Shortsville 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 of Shortsville, and provided further that such information
is to be used for tax purposes only, and the Clerk/Treasurer of the
Village of Shortsville shall, upon request, furnish the State Tax
Commission with any information contained in such returns.
All taxes and penalties received by the Clerk/Treasurer
of the Village of Shortsville under 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.