[Adopted 8-24-1937 by L.L. No. 1-1937 (Ch. 86 of the 1967 Code)]
[Amended 6-24-1941 by L.L. No. 1-1941]
A. By § 20-b of the General City Law, as added
by Chapter 321 of the Laws of 1937, cities were authorized to enact
local laws imposing a tax such as is imposed by § 186-a
of the Tax Law. Pursuant to such authority, this City enacted this
chapter, modeled upon § 186-a. Said section was enacted
upon the recommendation of the Governor of the state as an emergency
measure to aid in financing the extraordinary cost of relief. It was
intended thereby, and likewise by the local law enacted in this City
pursuant to the above-mentioned authority, to impose a tax on utility
services whether rendered by utilities in the strict sense or not,
and whether such services were in the main or incidental part of their
business and regardless of whether the public streets were used in
any manner. Accordingly, such a utility was defined for the purposes
of the tax, as including every person subject to the supervision of
the Department of Public Service and every other person furnishing
utility services. It was intended to include persons and corporations
which were directly in competition with ordinary utilities, such as
landlords and submeterers, who by their services from other utilities
and, in turn, resell such services. For that reason the tax was imposed
on receipts from sales to ultimate consumers. Receipts from the sale
of such utility services to submeterers were not taxed, but receipts
of submeterers from their own customers were intended to be taxed.
Any other construction would have resulted in a complete exemption
from taxation of utility services sold or furnished by this particular
method. Furthermore, these submeterers of landlords, prior to a decision
by the appellate courts § 186-a of the Tax Law, which decided
that submeterers were not subject to tax, considered themselves subject
to tax and took into consideration in computing their operating cost
the additional burden of the tax.
B. In view of the fact that these landlords or submeterers
have considered themselves as subject to tax, have based their charges
to their customers in consideration of the tax and are in competition
with ordinary utilities, this chapter, making it clear that they are
required to include in gross operating income receipts from sales
of services similar to those rendered by ordinary utilities, is made
retroactive to the original enactment of this tax.
C. Furthermore, it is believed that submeterers have
common characteristics that distinguish them from other business and
justify the conclusion that the method, character and nature of their
business, in this aspect, is substantially similar to the business
of an ordinary utility and requires similar treatment for purposes
of the tax. This conclusion is strongly fortified by the fact that
such landlords and submeterers are in direct competition with ordinary
utilities, and hence should bear similar tax burdens in order to avoid
inequality of treatment.
[Amended 6-27-1950 by L.L. No. 1-1950]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, a tax equal to 1%
of its gross income from and after July 1, 1937, is hereby imposed
upon every utility doing business in the City of Norwich which is
subject to the supervision of the State Department of Public Service,
which has a gross income for the 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, and a tax equal to 1% of its gross operating income is
hereby imposed from and after July 1, 1937, and each year thereafter
upon every other utility doing business in the City of Norwich 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 City of Norwich, 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 the territorial limits of the City
of Norwich, notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
[Amended 6-24-1941 by L.L. No. 1-1941]
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
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 City of Norwich, 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 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 City of Norwich
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 City of Norwich 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 such consumption or use of
gas, electric, steam, water, refrigerator, telephone or telegraph
service in the City of Norwich, 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 either
division of the State Department of Public Service, except 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 Chamberlain
of the City of Norwich may require, and such records shall be preserved
for a period of three years, except that the Chamberlain of the City
of Norwich may consent to their destruction within that period or
may require that they be kept longer.
[Amended 6-27-1950 by L.L. No. 1-1950]
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, 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 City Chamberlain
of the City of Norwich on a form to be furnished by him for such purpose
and shall contain such other data, information or matter as the City
Chamberlain may require to be included therein. Notwithstanding the
foregoing provisions of this article, any utility whose average gross
income or average gross operating income, as the case may be, for
the aforesaid three-month periods is less than $1,500, may file a
return annually on June 25 for the 12 preceding calendar months and
the City Chamberlain may require any utility doing business in the
City of Norwich to file an annual return, which shall contain any
data specified by the City Chamberlain, regardless of whether the
utility is subject to tax under this article. The City Chamberlain,
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 the City Chamberlain. Every return shall
have annexed thereto an affidavit of the head of the utility making
the same 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 Chamberlain of the City
of Norwich 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.
[Amended 6-10-1940 by L.L. No. 1-1940]
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the City Chamberlain and
if a corrected or insufficient return is not filed within 20 days
after same is required by notice from the City Chamberlain, or if
no return is made for any period, the City Chamberlain 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 City Chamberlain 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 City Chamberlain for a hearing, or unless
the City Chamberlain of his own motion shall reduce the same. After
such hearing the City Chamberlain shall give notice of his decision
to the person liable for the tax. The decision of the City Chamberlain
may be reviewed by a proceeding under Article 78 of the Civil Practice
Law and Rules of the State of New York if application thereof is made
within 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 City Chamberlain 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.
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 post-paid 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 Chamberlain,
if satisfied that the delay was excusable, may remit all or any portion
of such penalty.
[Amended 6-10-1940 by L.L. No. 1-1940]
If, within one year from the payment of any
tax or penalty, the payer thereof shall make application for a refund
thereof and the City Chamberlain or the court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected, the City Chamberlain 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 City Chamberlain. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
City Chamberlain as hereinbefore provided unless the City Chamberlain,
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 the 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 City Chamberlain may receive additional evidence
with respect thereto. After making this determination, the City Chamberlain
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 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 costs of such utility.
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Corporation Counsel shall,
upon the request of the Chamberlain, bring an action to enforce payment
of the same. The proceeds of any judgment obtained in any such action
shall be paid to the Chamberlain. 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 Chamberlain
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
and 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 the proper judicial order
or as otherwise provided by law, it shall be unlawful for the Chamberlain
or any agent, clerk or employee of the City of Norwich 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 City of Norwich 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, 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 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 or 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 Chamberlain, may
assist in the collection of such delinquent taxes, or the inspection
by the Corporation Counsel or other legal representatives of the City
of Norwich 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
not exceeding six months, or both, and if the offender be an officer,
agent, clerk or employee of the City of Norwich he shall be dismissed
from office and shall be incapable of holding any office or employment
in the City of Norwich for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the
Chamberlain may exchange with the chief fiscal officer of any other
City in the State of New York information contained in returns filed
under this article, provided such other City grants similar privileges
to the City of Norwich and provided such information is to be used
for tax purposes only, and the Chamberlain shall upon request furnish
the State Tax Commission with any information contained in such returns.
All taxes and penalties received by the Chamberlain
under this article shall be deposited by him in a separate bank account
or accounts, and shall be used solely and exclusively for the purpose
of granting relief from the hardships and suffering caused by unemployment
within the City of Norwich.