[Adopted 4-7-1986 by L.L. No. 1-1986 (Ch. 79, Art. II, of
the 1985 Code)]
Pursuant to the authority granted by ยงย 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 May 1970, is hereby imposed
upon every utility doing business in the Village of Fort Edward 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 7 of the Transportation Law, 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 Fort Edward 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 Fort Edward,
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 Fort Edward, 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 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 Fort Edward, 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
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 Village of Fort Edward other than such as are received
from a corporation, a majority of whose voting stock is owned by the
taxpaying utilities, 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 Fort Edward whatsoever; provided, however, that
the words "gross income" 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 Fort Edward,
and in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated with the
Village of Fort Edward.
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 Village of Fort Edward, 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, municipalities,
political and civil subdivisions of the state or 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 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, telephone or telegraphy, delivered through mains,
pipes or wires, or furnishes gas, electric, 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 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 forms as the Village Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Village Treasurer 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 or March, a return for the 12 calendar months
preceding such return date or any portion thereof for which the tax
imposed hereby 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 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 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 Fort
Edward 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 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 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.ย
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 is 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.ย
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 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 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 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 determination, the Village Treasurer
shall give notice thereof to the person interested, and he shall be
entitled to any 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
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 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
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 ยงย 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
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.
A.ย
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 Fort Edward 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 Fort Edward, 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 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 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 Fort Edward, 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.
B.ย
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 is an officer, agent, Clerk or
employee of the Village of Fort Edward, he shall be dismissed from
office and shall be incapable of holding any office or employment
in the Village of Fort Edward, New York, for a period of five years
thereafter.
C.ย
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 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 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.