[Adopted 3-16-2009 by L.L. No. 2-2009[1]]
[1]
Editor's Note: This local law was originally
adopted as Ch. 183 but was renumbered to maintain the organization
of the Code.
This article shall be known as the "Gross Utilities
Tax Law of the Village of Fishkill."
The Board of Trustees of the Village of Fishkill
realizes that the real estate tax burden on its residents is ever
increasing due to the imposition of taxes by all levels of government
in Dutchess County. In an effort to relieve some of that burden, the
Board believes that the tax base of the Village must be broadened
and that the adoption of this article will broaden its tax base.
Pursuant to the authority granted in § 5-530
of the Village Law of the State of New York, from and after the effective
date of this article, there is hereby imposed:
A.
A tax equal to 1% of the gross income of every utility
doing business in the territorial limits of the Village of Fishkill,
which is subject to the supervision of the New York State Public Service
Commission and which has an annual gross income in excess of $500,
except motor carriers or brokers subject to the provisions of Transportation
Law § 240.
B.
A tax equal to 1% of the gross operating income of
every other utility doing business in the territorial limits of the
Village of Fishkill, which has an annual gross operating income in
excess of $500.
As used in this article, the following terms
shall have the meanings indicated:
Includes:
In the case of a utility engaged in selling
telephony or telephone service, only receipts from local exchange
service wholly consummated within the Village.
In the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village.
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 a purchaser in the Village, including cash, credits and
property of any kind or nature (whether or not such sale is made or
service is rendered for profit), without any deductions 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;
Profits from the sale of securities;
Profits from the sale of real property growing
out of the ownership or use of or interest in such property;
Profits from the sale of personal property,
other than property of a kind which would properly be included in
the inventory of a taxpayer if on hand at the close of the period
for which a return is made;
Receipts from interest, dividends and royalties
derived from sources within the Village, 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 receipts thereof;
Profits from any transaction, except sales for
resale and rentals, within the Village 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, refrigeration, telephone or telegraph
service in the Village, including cash, credits and property of any
kind or nature, without deductions 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.
Includes persons, corporations, companies, associations,
joint-stock associations, copartnerships, estates, assignees 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. The word "person" shall
not include the state, 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 Public Service Commission, except omnibus corporations subject
to supervision under Article 7 of the Transportation Law.
Every person who sells gas, electricity, steam,
water, refrigeration, telephony or telegraph delivered through mains,
pipes or wires, whether or not such person is subject to the supervision
of the State Public Service Commission or any other regulatory agency.
Every person who furnishes gas, electricity,
steam, water, refrigeration, telephony or telegraph service by means
of mains, pipes or wires, regardless of whether such activities are
the main business of such persons or are only incidental thereto or
of whether use is made of the public streets.
This article and the tax imposed thereby:
A.
Shall apply only within the territorial limits of
the Village of Fishkill.
B.
Shall not apply and the tax shall not be imposed on
any transaction originating or consummated outside the territorial
limits of the Village of Fishkill, notwithstanding that some act be
necessarily performed with respect to such transaction within such
limits.
C.
Shall be in addition to any and all other taxes.
D.
Shall apply to all subject income received on and
after the effective date of this article.
All revenues resulting from the imposition of
the tax imposed by 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.
The Village Treasurer shall be the Chief Enforcement
Officer of this article and shall make and be responsible for all
collections hereunder. She shall also have the power and authority
to make any rules or regulations or directives, not inconsistent with
law, which, in the Village Treasurer's discretion, are reasonably
necessary to facilitate the administration of this article and the
collection of the taxes imposed hereby. Copies of all such rules and
regulations and directives, as may from time to time be promulgated,
shall be sent by registered mail to all utilities subject to this
article which register as such with the Village Treasurer. All such
rules, regulations and directives shall be deemed part of this article.
Every utility subject to tax pursuant to this
article shall keep such records of its business in such form as the
Village Treasurer may require, and such records shall be preserved
for a period of three years unless the Village Treasurer otherwise
directs.
A.
Time of filing. Every utility subject to a tax hereunder
shall file, on or before December 25 and June 25 of each year, a return
for the six calendar months preceding each return date, including
any period for which a tax imposed hereby or any amendment hereof
is effective. However, any utility whose average gross income or gross
operating income for the aforesaid six-month period is less than $3,000
may file a return annually on December 25 for the 12 calendar months
preceding such return date including any period for which the tax
imposed hereby or any amendment hereof is effective. Any utility,
whether subject to tax under this article or not, may be required
by the Village Treasurer to file an annual return.
B.
Contents. Returns shall be filed with the Village
Treasurer and shall show thereon the gross income or gross operating
income for the period covered by the return and such other information,
data or matter as the Village Treasurer may require to be included
therein. Every return shall have annexed thereto a certification by
the Chief Executive Officer of the utility making the same or of the
owner or a copartner thereof, or of a principal corporate officer,
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 hereby for the period covered by such return. Such tax
shall be due and payable at the time of the filing of the return or,
if a return is not filed when due, on the last day on which the return
is required to be filed.
Any utility failing to file a return or a 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; however, the Village Treasurer,
if satisfied that the delay was excusable, may remit all or any portion
of such penalty.
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.
In the event a return filed pursuant to this
article shall be insufficient or unsatisfactory to the Village Treasurer,
she may require a new or supplemental return, which shall contain
any data that may be specified by the Treasurer, and if a corrected
or new return is not filed within 20 days after the same is required
by notice, or if no return is made for a period, the Village Treasurer
shall determine the amount due from such information as is available
to her and may estimate the tax on the basis of external indices or
otherwise. She shall give notification of such determination to the
utility liable for such tax. Such determination shall finally and
irrevocably fix such tax unless the utility against which it is assessed
shall, within one year after the giving of notice of such determination,
apply to her for a hearing or unless the Village Treasurer, of her
own motion, shall reduce same. After such hearing, she shall give
notice of her decision to the utility liable for such 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 commenced within
90 days after the giving of notice of such final determination; provided,
however, that any such proceeding shall not be instituted unless the
amount of any tax sought to be reviewed, with such interest and penalties
thereon as may be provided, shall be first deposited and an undertaking
filed 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 petitioner will pay all costs and charges
which may accrue in the prosecution of such proceedings.
Any notice authorized or required pursuant to
this article may be given by mailing the same to the utility for which
it is intended, in a postpaid envelope, addressed to such utility
at the address given by it in the last return filed by it 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 same by the utility to which it is addressed. Any period of time
given for compliance with such notice shall commence to run from the
date of the mailing of such notice.
If, within one year from the giving of notice
of any determination of 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. However,
no refund shall be made of a tax or penalty paid pursuant to a determination
of the Village Treasurer unless the Village Treasurer, after a hearing
or on 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 that such determination was erroneous
or illegal. An application for a refund shall be deemed an application
for revision of any tax or penalty and the Village Treasurer may receive
additional evidence with respect thereto.
Except in the case of a willfully false or fraudulent
return, no assessment or additional tax shall be made with respect
to taxes imposed pursuant to this article after the expiration of
three years from the date of filing of a return; provided, however,
that if no return has been filed, the tax may be assessed at any time.
In addition to any other powers herein given
to the Village Treasurer and in order to further insure payment of
the tax imposed hereby, the Treasurer shall have the power to:
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Village Attorney shall, upon
request of the Board of Trustees, 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 as the tax imposed
on real property by the Real Property Tax Law.
In the event any section, subsection, provision
or part of this article or any rules or regulations adopted pursuant
hereto are declared invalid, illegal or unconstitutional by a court
of competent jurisdiction, such determination shall not affect the
validity of any other section, subsection, provision or part of this
article or the rules or regulations adopted pursuant hereto.
