[Adopted 7-5-1988 by L.L. No. 2-1988 as Ch. 107, Art. I
of the 1988 Code]
Pursuant to the authority granted by § 5-530 of the
Village Law of the State of New York, from and after April 1, 1971,
there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility doing business
in the Incorporated Village of North Collins 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, except motor carriers
or brokers subject to such supervision under Article 7 of the Transportation
Law.
B. A tax equal to 1% of the gross operating income of every other utility
doing business in the Incorporated Village of North Collins which
has an annual gross operating income in excess of $500.
As used in this Article, the following terms shall have the
meanings indicated:
GROSS INCOME
A.
Includes:
(1)
In the case of a utility engaged in selling telephony or telephone
service, only receipts from local exchange service wholly consummated
within the Village.
(2)
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated with the
Village.
B.
The words "gross income" in the case of any utility other than described in Subsection
A hereof shall include:
(1)
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, 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 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.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property growing out of the ownership
or use of or interest in such property.
(4)
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.
(5)
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 receipt thereof.
(6)
Profits from any transaction (except sales for resale and rentals)
with the Village whatsoever.
GROSS OPERATING INCOME
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, telephone 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, including cash, credits and property of any
kind or nature, without 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.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignee of rents, any persons
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,
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.
UTILITY
Includes:
A.
Every person subject to the supervision of the State Department
of Public Service, except:
(1)
Persons engaged in the business of operating or leasing sleeping
and parlor railroad cars.
(2)
Persons engaged in the business of operating or leasing railroads
other than street surface, rapid transit, subway and elevated railroads.
(3)
Omnibus corporations subject to supervision under Article 7
of the Transportation Law.
B.
Every person who sells gas, electricity, steam, water, refrigeration,
telephony or telegraphy delivered through mains, pipes or wires, whether
or not such person is subject to the supervision of the State Department
of Public Service.
C.
Every person who 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.
This Article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village of North
Collins.
B. Not apply and the tax shall not be imposed on any transaction originating
or consummated outside the territorial limits of the Village of North
Collins, notwithstanding that some act be necessarily performed with
respect to such transaction within such limits.
C. Be in addition to any and all other taxes and fees imposed by any
other provisions of law.
D. Apply to all subject income received on and after April 1, 1971.
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. He or she shall also have the power and authority to make
any rules or regulations or directives not inconsistent with law 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 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 a portion of this Article.
A. Time of filing. Every utility subject to a tax hereunder shall file,
on or before October 1 and April 1, a return for the six calendar
months preceding each return date, including any period for which
the 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 March 1 for the 12 calendar months 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 Treasurer
to file an annual return.
B. Contents. Returns shall be filed with the Village Treasurer on a
form to be furnished by the Treasurer for such purpose 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 head of the utility
making the same or of the owner of 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 in 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 the tax due, plus 1% of such tax for each month of delay or a fraction
thereof, except the first month, after such return was required to
be filed or such tax became due; but 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 on
bills rendered by the utility to customers or others but shall constitute
a part of the operating costs of such utility.
In case any return filed pursuant to this Article shall be insufficient
or unsatisfactory to the Village Treasurer, he or she may require
at any time a further or supplemental return which shall contain any
data that may be specified by him or her; and if a corrected or sufficient
return is not filed within 20 days after the same is required by notice
from the Treasurer or if no return is made for any period, the Village
Treasurer shall determine the amount due, from such information as
he or she is able to obtain, and, if necessary, may estimate the tax
on the basis of external indexes or otherwise. He shall give notice
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 the Treasurer for a hearing or unless
the Treasurer, of his own motion, shall reduce the same. After such
hearing he shall give notice of his 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, if the proceeding is commenced within
90 days after the giving of notice of such final determination; provided,
however, that any such proceeding under said Article 78 shall not
be instituted unless the amount of any tax sought to be reviewed,
with such interest and penalties thereon as may be provided for by
local law, ordinance or resolution, 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 proceeding.
Any notice authorized or required under the provisions of 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 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 utility to which addressed. Any
period of time, which is determined according to the provisions of
this section by the giving of notice, shall commence to run from the
date of mailing of such notice.
A. 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 Treasurer
or the court shall determine that such tax or penalty or any portion
thereof was erroneously charged, 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 a tax or penalty paid pursuant
to a determination of the Village Treasurer, as hereinbefore provided,
unless the Village Treasurer, after a hearing as herein provided or
of his own motion, shall have reduced the tax or penalty or it shall
have been established in a proceeding in the manner provided in 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 revisions of any tax or penalty
complained of and the Village Treasurer may receive additional evidence
with 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 subsection hereof.
B. Where any tax imposed hereunder shall have been erroneously, illegally
or unconstitutionally collected and application for the refund thereof
duly made to the Village Treasurer and he shall have made a determination
denying 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 Treasurer, 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 proceeding.
Except in the case of a willfully false or fraudulent return
with the intent to evade the tax, no assessment or additional tax
shall be made with respect to taxes imposed under this Article after
expiration of more than three years from the date of filing of a return;
provided, however, that where no return has been filed as required
hereby, the tax may be assessed at any time.
In addition to any other powers herein given, the Village Treasurer,
in order to further ensure payment of the tax imposed hereby, shall
have the power to:
A. Prescribe the form of all reports and returns required to be made
hereunder.
B. Take testimony and proofs, under oath, with reference to any matter
hereby entrusted to him.
C. Subpoena and require the attendance of witnesses and the production
of books, papers, records and documents.
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
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.