[Adopted 1-18-2000 by L.L. No. 1-2000 as Ch. 14 of the 2000
Code]
Pursuant to the authority granted by Article 5, § 5-530
of the Village Law of the State of New York, there is hereby imposed:
A.
A tax equal to 1% of the gross income of every utility doing business
in the Village (hereinafter referred to as "Village") which is subject
to the supervision of the New York State Department of Public Service
and which has an annual gross income in excess of $500.
B.
A tax equal to 1% of the gross operating income of every other utility
doing business in said Village 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 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 Roslyn, 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 securities; also profits from the sale of real property
growing out of the ownership or use of or interest in such property;
also profits 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 Roslyn, 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 Roslyn, 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 Roslyn, New York, and, in the case of a utility engaged
in selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village of Roslyn, 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 Roslyn, 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 service or other costs, interest, or discount paid,
or any other expenses whatsoever.
A person, corporation, company, association, joint-stock
association, copartnership, limited liability company, estate, assignee
of rents, any person acting in a fiduciary capacity, or any other
entity, including 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 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
Department of Public Service, except persons engaged in the business
of operating on the public highways of this state one or more omnibuses,
having a seating capacity of more than seven persons, and 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.
A.
This article shall apply only within the territorial limits of the
Village and not on any transaction originating or consummated outside
of the territorial limits of the Village, notwithstanding that some
act is necessarily performed with respect to a transaction within
said limits, and shall be in addition to any and all other taxes.
B.
The tax imposed by this article shall apply to all such subject income
received on and after the effective date hereof.
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 Clerk/Treasurer shall be the chief enforcement officer
of this article and shall make and be responsible for all collections
hereunder. He or she shall also have the power and authority to make
any rules, regulations and directives, not inconsistent with law and
subject to the approval of the Board of Trustees of the Village, which,
in his or her discretion, are reasonably necessary to facilitate the
administration of this article and the collection of the taxes imposed
hereby. Copies of all such rules, regulations and directives as may
from time to time be promulgated shall be sent by registered or certified
mail to all utilities by the Village Clerk/Treasurer subject to this
article which register as such with the Village Clerk/Treasurer. All
such rules, regulations and directives shall be deemed a part of this
article.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Village Clerk/Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Village Clerk/Treasurer may consent to their
destruction within that period or may require that they be kept longer.
A.
Time of filing. Every utility subject to a tax hereunder shall file
on or before January 25 and July 25 a return for the six calendar
months next preceding each return date, including any period for which
the tax imposed hereby or any amendment hereof is effective. However,
any utility whose gross income or gross operating income for the aforesaid
six-month period is less than $3,000 may file a return annually on
July 25 for the 12 calendar months next preceding each 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 Clerk/Treasurer to
file an annual return.
B.
Contents. Returns shall be filed with the Village Clerk/Treasurer
on a form to be furnished for such purpose and shall contain such
other data, information or matter as he or she may require to be included
therein. The Village Clerk/Treasurer, in order to ensure payment of
the tax imposed, may require at any time a further or supplemental
return which contains any data that may be specified by him or her,
and he or she may require any utility doing business in the Village
of Roslyn to file a biannual return, which shall contain any data
specified by him or her, irrespective of whether the utility is subject
to tax under this article. Every return shall have annexed thereto
an affidavit of the chief officer 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 Clerk/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.
Any utility failing to file a return or a corrected return or
failing 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 Clerk/Treasurer,
if satisfied that the delay was excusable, may, subject to the approval
of the Board of Trustees, waive all or any portion of such penalty.
The tax imposed by this article shall be charged against and
be paid by the utility and may be added as a separate item to bills
rendered by the utility to customers.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Village Clerk/Treasurer, and if a corrected
or sufficient return is not filed within 20 days after the same is
required by notice from him or her, or if no return is made for any
period, the Village Clerk/Treasurer shall determine the amount of
tax due from such information as he or she is able to obtain and,
if necessary, may estimate the tax on the basis of external indices
or otherwise. He or she shall give notice of such determination to
the person liable for such tax. Such determination shall finally and
irrevocable fix such tax, unless the person against whom it is assessed
shall, within 90 days after the giving of notice of such determination,
apply to the Village Clerk/Treasurer for a hearing or unless the Village
Clerk/Treasurer, of his or her own motion, shall reduce the same.
After such hearing, the Village Clerk/Treasurer shall give notice
of his or her 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 Clerk/Treasurer
or an undertaking filed with him or her in such amount and with such
sureties as a Justice of the Supreme Court of the State of New York
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. Except in the case of wilfully 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 person for whom it
is intended in a postpaid envelope, addressed to such person at the
address given by him or her in the last return filed by him or her
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.
If, within one year from the giving of notice of any determination
or assessment of any tax or penalty, the person liable for the tax
shall make application for a refund thereof and the Village Clerk/Treasurer
or the court shall determine that such tax or penalty or any portion
thereof was erroneously or illegally collected, the Village Clerk/Treasurer
shall refund the amount so determined. For like cause and within the
same period, a refund may be made on the initiative of the Village
Clerk/Treasurer. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Village Clerk/Treasurer as
hereinbefore provided unless the Village Clerk/Treasurer, after a
hearing as hereinbefore provided or on his own motion, shall have
reduced or amended 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, made as hereinbefore provided, shall be deemed an application
for the revision of any tax or penalty complained of, and the Village
Clerk/Treasurer shall give notice thereof to the person interested
and he shall be entitled to commence a proceeding to review such determination,
in accordance with the provisions of the following section hereof.
Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the
refund thereof duly made to the Village Clerk/Treasurer and he or
she has denied such refund, such determination shall be reviewable
by a proceeding under Article 78 of the Civil Practice Law and Rules;
provided, however, that such proceeding is instituted within 90 days
after the giving of the notice of such denial, that a final determination
of tax due was not previously made and that an undertaking is filed
with the Village Clerk/Treasurer 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 petitioner
will pay all costs and charges which may accrue in the prosecution
of such proceeding.
Whenever any person shall fail to pay any tax or penalty imposed
by this article, the Village shall, upon the request of the Village
Clerk/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 Clerk/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 § 186-a of the Tax Law are made a lien.
In the administration of this article, the Village Clerk/Treasurer
shall have power to make such reasonable rules and regulations, not
inconsistent with law and with the approval of the Board of Trustees,
as may be necessary for the exercise of his or her powers and the
performance of his or her 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 or her 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 Clerk/Treasurer
or any agent, clerk or employee of the Village 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, 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 or her duly authorized
representative, of a copy of any return filed by him or her, or 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 Clerk/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 the return of any
person who shall bring an 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. Notwithstanding any provisions
of this article, the Village Clerk/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 city or other village grants similar privileges
to the Village, and provided that such information is to be used for
tax purposes only, and the Village Clerk/Treasurer shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
