[Adopted 9-17-2009 by L.L. No. 3-2009]
When used in this article, the following terms shall have the
following meaning unless the context otherwise requires:
EFFECTIVE DATE
The date on which the Secretary of State files this article.
EXEMPT OCCUPANT
Any occupant of any room or rooms in a hotel whose rent is
paid from public assistance from the County of Westchester shall be
deemed an "exempt occupant" with respect to the period of such occupancy,
regardless of the length thereof.
HOTEL
A building, or portion thereof, which is regularly used and
kept open for the lodging of guests. For the purposes of this article,
the term "hotel" includes apartment hotels, hotels, motels, boardinghouses,
tourist homes, motel courts, clubs or similar facilities with at least
four rentable rooms for lodging, whether or not meals are served to
guests or residents thereof.
OCCUPANCY
The use or possession or the right to the use or possession
of any room in a hotel.
OCCUPANT
A person who, for a consideration, uses, possesses or has
the right to use or possess any room in a hotel under any lease, concession,
permit, right of access, license to use or other agreement or otherwise.
OPERATOR
Any person operating a hotel in the City of New Rochelle,
including, but not limited to, an owner or proprietor of such premises,
lessee, sublessee, mortgagee in possession, licensee or any other
person otherwise operating such hotel.
PERMANENT RESIDENT
Any occupant of any room or rooms in a hotel at least 90
consecutive days shall be considered a permanent resident with regard
to the period of such occupancy.
PERSON
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
and any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, and any combination of
the foregoing.
RENT
The consideration received for occupancy valued in money,
whether received in money or otherwise, for the occupancy of a room
in a hotel for any period of time.
RETURN
Any return filed or required to be filed as herein provided.
ROOM
Any room or rooms or suite of rooms with sleeping accommodations,
whether or not such accommodations are used, of any kind in any part
of portion of a hotel which is available for or let out for any purpose.
On and after the first day of October 2009, there is hereby
imposed and there shall be paid a tax of 3% upon the rent for every
occupancy of a room or rooms in a hotel in this City, except that
the tax shall not be imposed upon a permanent resident or an exempt
occupant.
The tax imposed by this article shall be paid upon any occupancy
on and after the first day of October 2009, even if such occupancy
is pursuant to a prior contract, lease or other arrangement. Where
rent is paid on a weekly, monthly or other term basis, the rent shall
be subject to the tax imposed by this article to the extent that it
covers any period on and after the first day of October 2009.
Except as otherwise provided in this section, any use or occupancy
by any of the following shall not be subject to the tax imposed by
this article.
A. The State of New York, or any of its agencies or instrumentalities,
public corporations (including a public corporation created pursuant
to agreement or compact with another state or Canada), improvement
districts or political subdivisions of the state.
B. The United States of America, or any of its agencies and instrumentalities,
insofar as it is immune from taxation.
C. Any corporation, association, trust or community chest, fund or foundation,
organized and operated exclusively for religious, charitable or education
purposes or for the prevention of cruelty to children or animals,
and no part of the net earnings of which inures to the benefit of
any private shareholder or individual and no substantial part of the
activities of which is carrying on propaganda or otherwise attempting
to influence legislation; provided, however, that nothing in this
subsection shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or
not all of its profits are payable to one or more organizations described
in this subsection. Where any organization described in this subsection
carries on its activities in furtherance of the purposes for which
it was organized in which, as part of said activities, it operates
a hotel, occupancy of rooms in the premises and rents therefrom received
by such corporation or association shall not be subject to tax hereunder.
D. A hotel, as defined in this article, having fewer than four rentable
rooms.
The tax imposed by this article shall apply only within the
territorial limits of the City of New Rochelle.
A. Within 10 days after the effective date of this article or, in the
case of operators commencing business after such effective date, within
three days after such commencement or opening, every operator shall
file with the City Commissioner of Finance a certificate of registration
in a form prescribed by the City Commissioner of Finance.
B. The City Commissioner of Finance shall, within five days after such
registration, issue without charge to each operator a certificate
of authority empowering such operator to collect the tax from the
occupant and a duplicate thereof for each additional hotel of such
operator. Each certificate or duplicate shall state the hotel to which
it is applicable. Such certificate of authority shall be prominently
displayed by the operator in such manner that it may be seen and come
to the notice of all occupants and persons seeking occupancy. Such
certificate shall be nonassignable and nontransferable and shall be
surrendered immediately to the City Commissioner of Finance upon the
cessation of business at the hotel named or upon its sale or transfer.
A. The tax imposed by this article shall be administered and collected
by the City Commissioner of Finance or such other City employee as
he/she may designate by such means and in such manner as are other
taxes which are now collected and administered or as otherwise provided
by this article.
B. The tax to be collected shall be stated and charged separately from
the rent and shown separately on any record thereof, at the time when
the occupancy is arranged or contracted for and charged for, and upon
every evidence of occupancy or any bill or statement of charges made
for said occupancy issued or delivered by the operator, and the tax
shall be paid by the occupant to the operator as trustee for and on
account of the City, and the operator shall be liable for the collection
thereof and for the tax. The operator and any officer of any corporate
operator shall be personally liable for the tax collected or required
to be collected under this article, and the operator shall have the
same right in respect to collecting the tax from the occupant, or
in respect to nonpayment of the tax by the occupant, as if the tax
were part of the rent for the occupancy payable at the time such tax
shall become due and owing, including all rights of eviction, dispossession,
repossession and enforcement of any innkeeper's lien that he/she may
have in the event of nonpayment of rent by the occupant; provided,
however, that the City Commissioner of Finance or employees or agents
duly designated by him/her shall be joined as a party in any action
or proceeding brought by the operator to collect or enforce collection
of the tax.
C. The City Commissioner of Finance may, wherever he/she deems it necessary
for the proper enforcement of this article, provide by regulation
that the occupant shall file returns and pay directly to the City
Commissioner of Finance the tax imposed at such times as returns are
required to be filed and payment over made by the operator.
D. The tax imposed by this article shall be paid upon any occupancy on and after October 1, 2009, even if such occupancy is had pursuant to a contract, lease or other arrangement made prior to such date. Where rent is paid or charged or billed or falls due on either a weekly, monthly or other term basis, the rent so paid, charged, billed or falling due shall be subject to the tax herein imposed to the extent that it covers any portion of the period on and after October 1, 2009. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the City Commissioner of Finance may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefor as provided in §
288-45 of this article.
E. For the purpose of the proper administration of this article and to prevent evasion of the tax hereby imposed, it shall be presumed that all rents are subject to tax until the contrary is established, and the burden of proving that a rent for occupancy is not taxable hereunder shall be upon the operator or occupant. Where an occupant claims exemption from the tax under the provisions of Subsection
C of §
288-36 of this article, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a copy of a New York State sales tax exemption certificate.
Every operator shall keep records of every occupancy and of
all rent paid, charged or due thereon and of the tax payable thereon,
in such form as the City Commissioner of Finance may by regulation
require. Such records shall be available for inspection and examination
at any time upon demand by the City Commissioner of Finance or his/her
duly authorized agent or employee and shall be preserved for a period
of three years, except that the City Commissioner of Finance may consent
to their destruction within that period or may require that they be
kept longer.
A. Every operator shall file with the City Commissioner of Finance a
return of occupancy and of rents and of the taxes payable thereon
for the three-month periods ending the last day of March, June, September,
and December on and after October 1, 2009. Such returns shall be filed
within 20 days from the expiration of the period covered thereby.
The City Commissioner of Finance may permit or require returns to
be made by other periods and upon such dates as he/she may specify.
If the City Commissioner of Finance deems it necessary in order to
ensure the payment of the tax imposed by this article, he/she may
require returns to be made for shorter periods than those prescribed
pursuant to the foregoing provisions of this section and upon such
dates as he/she may specify.
B. The forms of return shall be prescribed by the City Commissioner
of Finance and shall contain such information as he/she may deem necessary
for the proper administration of this article. The City Commissioner
of Finance may require amended returns to be filed within 20 days
after notice and to contain the information specified in the notice.
C. If a return required by this article is not filed, or if a return
is incorrectly filed or is insufficient on its face, the City Commissioner
of Finance shall take such steps as he/she deems necessary to enforce
the filing of such return or of a corrected return.
At the time of filing a return of occupancy and of rents, each
operator shall pay to the City Commissioner of Finance the taxes imposed
by this article upon the rents required to be included in such return,
as well as all other monies collected by the operator acting or purporting
to act under the provisions of this article; even though it be judicially
determined that the tax collected is invalidly required to be filed,
shall be due from the operator and payable to the City Commissioner
of Finance on the date prescribed herein for the filing of the return
for such period, without regard to whether a return is filed or whether
the return which is filed correctly shows the amount of rents and
taxes due thereon. Where the City Commissioner of Finance in his/her
discretion deems it necessary to protect revenues to be obtained under
this article, he/she may require any operator required to collect
the tax imposed by this article to file with him/her a bond, issued
by a surety company authorized to transact business in this state
and approved by the Superintendent of Insurance of this state as to
solvency and responsibility, in such amount as the City Commissioner
of Finance may find to secure the payment of any tax and/or penalties
and interest due or which may become due from such operator. In the
event that the City Commissioner of Finance determines that an operator
is to file such bonds, he/she shall give notice to such operator to
that effect, specifying the amount of the bond required. The operator
shall file such bond within five days after the giving of such notice
unless, within such five days, the operator shall request in writing
a hearing before the City Commissioner of Finance at which the necessity,
propriety and amount of the bond shall be determined by the City Commissioner
of Finance. Such determination shall be final and shall be complied
with within 15 days after the giving of notices thereof. In lieu of
such bond, securities approved by the City Commissioner of Finance
or cash in such amount as he/she may prescribe may be deposited with
him/her, which shall be kept in the custody of the City Commissioner
of Finance, who may at any time, without notice to the depositor,
apply them to any tax and/or interest or penalties due, and for that
purpose the securities may be sold by him/her at public or private
sale without notice to the depositor thereof.
If a return required by this article is not filed or if a return,
when filed, is incorrect or insufficient, the amount of tax due shall
be determined by the City Commissioner of Finance from such information
as may be obtainable, and, if necessary, the tax may be estimated
on the basis of external indices, such as number of rooms, locations,
scale of rents, comparable rents, type of accommodations and service,
number of employees and/or other factors. Notice of such determination
shall be given to the person liable for the collection and/or payment
of the tax. Such determination shall finally and irrevocably fix the
tax unless the person against whom it is assessed, within 30 days
after giving notice of such determination, shall apply to the City
Commissioner of Finance for a hearing or unless the City Commissioner
of Finance on his/her own motion shall redetermine the same. After
such hearing, the City Commissioner of Finance shall give notice of
his/her determination to the person against whom the tax is assessed.
The determination of the City Commissioner of Finance shall be reviewable
for error, illegality, unconstitutionality or any other recognizable
basis whatsoever by proceeding under Article 78 of the Civil Practice
Law and Rules if application therefor is made to the Supreme Court
within 30 days after the giving of the notice of such determination.
A proceeding under Article 78 of the Civil Practice Law and Rules
shall not be instituted unless the amount of any tax sought to be
reviewed, with penalties and interest thereon, if any, shall be first
deposited with the City Commissioner of Finance and there shall be
filed with the City Commissioner of Finance an undertaking, issued
by a surety company authorized to transact business in this state
and approved by the Superintendent of Insurance of this state as to
solvency and responsibility, in such amount as a Justice of the Supreme
Court shall approve to the effect that, if such proceedings be dismissed
or the tax confirmed, the petitioner will pay all costs and charges
which may accrue, including reasonable counsel fees, in the prosecution
of the proceeding, or, at the option of the applicant, such undertaking
filed with the City Commissioner of Finance may be in a sum sufficient
to cover the taxes, penalties and interest thereon stated in such
determination plus the costs and charges, including reasonable counsel
fees, which may accrue against it in the prosecution of the proceedings,
in which event the applicant shall not be required to deposit such
taxes, penalties and interest as a condition precedent to the application.
All revenue resulting from the imposition of the tax under this
article shall be paid into the treasury of the City and shall be credited
to and deposited in the general fund of the City.
A. In the manner provided in this section, the City Commissioner of
Finance shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected
or paid if application to the City Commissioner of Finance for such
refund shall be made within one year from the payment thereof. Whenever
a refund is made by the City Commissioner of Finance, he/she shall
state his/her reason therefor in writing. Such application may be
made by the occupant, operator or other person who has actually paid
the tax. Such application may also be made by an operator who has
collected and paid over such tax to the City Commissioner of Finance,
provided that the application is made within one year of the payment
by the occupant to the operator, but no actual refund of monies shall
be made to such operator until he/she shall first establish to the
satisfaction of the City Commissioner of Finance, under such regulations
as the City Commissioner of Finance may prescribe, that he/she has
repaid to the occupant the amount for which the application for refund
is made. The City Commissioner of Finance may, in lieu of any refund
required to be made, allow credit therefor on payments due or to become
due from the applicant.
B. An application for a refund or credit made as herein provided shall
be deemed an application for a revision of any tax, penalty or interest
complained of, and the City Commissioner of Finance may receive evidence
with respect thereto. After making his/her determination, the City
Commissioner of Finance shall give notice thereof to the applicant,
who shall be entitled to review such determination by a proceeding
pursuant to Article 78 of the Civil Practice Law and Rules, provided
that such proceeding is instituted within 30 days after the giving
of the notice of such determination, and provided that a final determination
of tax due was not previously made. Such a proceeding shall not be
instituted unless an undertaking is filed with the City Commissioner
of Finance in such amount and with such sureties as a Justice of the
Supreme Court shall approve to the effect that, if such proceedings
be dismissed or the tax confirmed, the petitioner will pay costs and
charges which may accrue in the prosecution of such proceeding.
C. A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of §
288-43 of this article where he/she has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the City Commissioner of Finance made pursuant to §
288-43 of this article unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the City Commissioner of Finance after a hearing or on his/her own motion or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
In cases where the occupant or operator has applied for a refund
and has instituted a proceeding under Article 78 of the Civil Practice
Law and Rules to review a determination adverse to him/her on his/her
application for refund, the City Commissioner of Finance shall have
the option of crediting future tax payments to meet the cost of any
settlements or judgments or, at his/her option, may, in the first
instance, set up appropriate reserves to meet any decision adverse
to the City.
The remedies provided by §§
288-43 and
288-45 of this article shall be the exclusive remedies available to any person for the review of tax liability imposed by this article, and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than a proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he/she institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the City Commissioner of Finance prior to the institution of such suit and posts a bond for costs as provided in §
288-43 of this article.
A. Whenever any operator or any officer of a corporate operator or any
occupant or other person shall fail to collect and pay over any tax
and/or to pay any tax, penalty or interest imposed by this article
as therein provided, the City Corporation Counsel shall, upon the
request of the City Commissioner of Finance, bring or cause to be
brought an action to enforce the payment of the same on behalf of
the City of New Rochelle in any court of the State of New York or
of any other state or of the United States. If, however, the City
Commissioner of Finance in his/her discretion believes that any such
operator, officer, occupant or other person is about to cease business,
leave the state or remove or dissipate the assets out of which the
tax or penalties might be satisfied, and that any such tax or penalty
will not be paid when due, he/she may declare such tax or penalty
to be immediately due and payable and may issue a warrant immediately.
B. As an additional or alternate remedy, the City Commissioner of Finance
may direct that the amount of such tax or penalty upon the property
occupied by the hotel giving rise to such tax or penalty shall be
levied, collected and enforced in the same manner as taxes upon said
property for City purposes are levied, collected and enforced.
C. Whenever an operator shall make a sale, transfer or assignment in
bulk of any part of the whole of his/her hotel or its assets or his/her
lease, license or other agreement or right to possess or operate such
facility or of the equipment, furnishings, fixtures, supplies or stock
of merchandise of said premises or lease, license or other agreement
or right to possess or operate such hotel and the equipment, furnishings,
fixtures, supplies and stock or merchandise pertaining to the conduct
or operation of said hotel otherwise than in the ordinary and regular
prosecution of business, the purchaser, transferee or assignee shall,
at least 10 days before taking possession of the subject of said sale,
transfer or assignment or paying therefor, notify the City Commissioner
of Finance by registered mail of the proposed sale and of the price,
terms and conditions thereof, whether or not the seller, transferor
or assignor has represented to or informed the purchaser, transferee
or assignee that it owes any tax pursuant to this article and whether
or not the purchaser, transferee or assignee has knowledge that such
taxes are owing and whether any such taxes are in fact owing.
D. Whenever the purchaser, transferee or assignee shall fail to give
notice to the City Commissioner of Finance as required by the preceding
subsection or whenever the City Commissioner of Finance shall inform
the purchaser, transferee or assignee that a possible claim for such
tax or taxes exists, any sums of money, property or choses in action,
or other consideration, which the purchaser, transferee or assignee
is required to transfer over, the seller, transferor or assignor shall
be subject to a first priority right and lien for any such taxes theretofore
or thereafter determined to be due from the seller, transferor or
assignor to the City, and the purchaser, transferee or assignee is
forbidden to transfer to the seller, transferor or assignor any such
sums of money, property or choses in action to the extent of the amount
of the City's claim. For failure to comply with the provisions of
this subsection, the purchaser, transferee or assignee, in addition
to being subject to the liabilities and remedies imposed under the
provisions of the Uniform Commercial Code, shall be personally liable
for the payment to the City of any such taxes theretofore or thereafter
determined to be due to the City from the seller, transferor or assignor,
and such liability may be assessed and enforced in the same manner
as the liability for tax under this article.
In addition to the powers granted to the City Commissioner of
Finance by any other law, he/she is hereby authorized and empowered:
A. To make, adopt and amend rules and regulations appropriate to the
carrying out of this article and the purposes thereof.
B. To extend, for cause shown, the time of filing any return for a period
not exceeding 30 days; and, for cause shown, to remit penalties but
not interest computed at the rate of 1% per annum per month or fraction
thereof during which a tax is unpaid although due; and to compromise
disputed claims in connection with the taxes hereby imposed.
C. To request information from the New York State Department of Taxation
and Finance or the Treasury Department of the United States relative
to any person; and to afford information to such New York State Department
of Taxation and Finance or such Treasury Department relative to any
person, any other provision of this article to the contrary notwithstanding.
D. To delegate his/her functions hereunder to any employee or employees
of the City of New Rochelle as the City Manager may approve.
E. To prescribe methods for determining the rents for occupancy and
to determine the taxable and nontaxable rents.
F. To require any operator within the City to keep detailed records
of the nature and type of hotel maintained, nature and type of service
rendered, the rooms available and rooms occupied daily, leases or
occupancy contracts or arrangements, rents received, charged and accrued,
the names and addresses of the occupants, whether or not any occupancy
is claimed to be subject to the tax imposed by this article, and to
furnish such information upon request to the City Commissioner of
Finance.
G. To assess, determine, revise and readjust the taxes imposed under
this article.
H. To require any operator to submit with the return required hereunder
a copy of any tax return for sales, occupancy or use taxes submitted
to the New York State Department of Taxation and Finance or other
instrumentality of the State of New York.
A. The City Commissioner of Finance or his/her employees or agents duly
designated and authorized by him/her shall have power to administer
oaths and take affidavits in relation to any matter or proceeding
in the exercise of their powers and duties under this article. The
City Commissioner of Finance shall have power to subpoena and require
the attendance of witnesses and the production of books, papers and
documents, to secure information pertinent to the performance of his/her
duties hereunder and of the enforcement of this article and to examine
them in relation thereto and to issue commissions for the examination
of witnesses who are out of the state or unable to attend before him/her
or excused from attendance.
B. A Justice of the Supreme Court, either in court or at chambers, shall
have power summarily to enforce by proper proceedings the attendance
and testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the City Commissioner
of Finance.
C. Any person who shall refuse to testify or to produce books or records
or who shall testify falsely in any material matter pending before
the City Commissioner of Finance under this article shall be guilty
of a misdemeanor, punishment for which shall be a fine of not more
than $1,000 or imprisonment for not more than one year, or both such
fine and imprisonment.
D. The officers who serve the summons or subpoena of the City Commissioner
of Finance and witnesses attending in response thereto shall be entitled
to the same fees as are allowed to officers and witnesses in civil
cases in courts of record, except as herein otherwise provided. Such
officers shall be the Police Commissioner and his/her duly appointed
deputies or any officers, employees or other persons of the City Commissioner
of Finance designated by him/her to serve such process.
Wherever reference is made in placards or advertisements or
in any other publications to this tax, such reference shall be substantially
in the following form: "Tax on occupancy of hotel rooms," except that
in any bill, receipt, statement or other evidence or memorandum or
occupancy or rent charge issued or employed by the operator, the term
"City tax" will suffice.
A. Any person failing to file a return or to pay or pay over any tax
to the City Commissioner of Finance within the time required by this
article shall be subject to a penalty of 5% of the amount of tax due
per month or any fraction of a month to a maximum of 25% for each
year; plus interest at the rate of 1% of such tax for each month of
delay or fraction of a month after such return was required to be
filed or such tax became due; but the City Commissioner of Finance,
if satisfied that the delay was excusable, may return all or any part
of such penalty; but not interest. Such net penalties and interest
shall be paid and disposed of in the same manner as other revenues
from this article. Unpaid penalties and interest may be enforced in
the same manner as the tax imposed by this article.
B. Any operator or occupant and any officer of an operator or occupant failing to file a return required by this article, or filing or causing to be filed or making or causing to be made or giving or causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this article which is willfully false, and any operator and any officer of a corporate operator willfully failing to file a bond required to be filed pursuant to §
288-43 of this article or failing to file a registration certificate and such data in connection therewith as the City Commissioner of Finance may by regulation or otherwise require, or to display or surrender the certificate of authority as required by this article or assigning or transferring such certificate of authority; and any operator or any officer of a corporate operator willfully failing to charge separately from the rent the tax herein imposed or willfully failing to state such tax separately on any evidence of occupancy and on any bill or statement or receipt of rent issue or employed by the operator or willfully failing or refusing to collect such tax from the occupant, any operator or any officer of a corporate operator who shall refer or cause reference to be made to this tax in a form or manner other than that required by this article, and any such person or operator failing to keep records required by this article, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishable by a fine of up to $1,000, imprisonment for not more than one year, or both such fine and imprisonment. Officers of a corporate operator shall be personally liable for the tax collected or required to be collected by such corporation under this article and penalties and interest thereon and subject to the fines and imprisonment herein authorized.
C. The certificate of the City Commissioner of Finance to the effect
that a tax has not been paid, that a return, bond or registration
certificate has not been filed or that information has not been supplied
pursuant to the provisions of this article shall be presumptive evidence
thereof.
Except in accordance with proper judicial order or as otherwise
provided by law, it shall be unlawful for the City Commissioner of
Finance or employee or designee of the City Commissioner of Finance
to divulge or make known in any manner the rents or other information
relating to the business of a taxpayer contained in any return required
under this article. The officers 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 Commissioner of Finance in an action
or proceeding under the provisions of this article 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 taxpayer or his/her duly authorized
representative of a certified copy of any return filed in connection
with his/her tax nor to prohibit the publication of statistics so
classified to prevent the identification of particular returns and
items thereof or the inspection by the City Corporation Counsel or
other legal representatives of the City or by the District Attorney
of any county of the return of any taxpayer who shall bring an action
to set aside or review the tax based thereon, or against whom an action
or proceeding has been instituted for the collection of a tax or penalty.
Returns shall be preserved for three years and thereafter until the
City Commissioner of Finance permits them to be destroyed.
A. Any notice authorized or required under the provisions of this article
may be given to the person to whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him/her pursuant to the provisions of this article or in any application
made by him/her or, if no return has been filed or application made,
then to such address as may be obtainable. The mailing of such notices
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
five days after the date of mailing of such notice.
B. The provisions of the Civil Practice Law and Rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the City to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this article. However, except in the case of a
willfully false, 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 filing of a return; provided,
however, that in the case of a return which should have been filed
and has not been filed as provided by law, the tax may be assessed
at any time.
C. Where, before expiration of the period prescribed herein for the
assessment of an additional tax, a taxpayer has consented in writing
that such period be extended, the amount of such additional tax due
may be determined at any time within such extended period. The period
so extended may be further extended by subsequent consents in writing
made before the expiration of the extended period.
If any provision of this article, or the application thereof,
to any person or circumstance is held invalid, the remainder of this
article, and the application of such provision to other persons or
circumstances, shall not be affected thereby.