[Adopted 5-7-1962 by L.L. No. 2-1962 (Ch. 93 of the 1975
Code)]
Pursuant to the authority granted by § 5-530 of the
Village Law of the State of New York, from on and after June 1, 1962,
there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility doing business
in the Incorporated Village of Farmingdale 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 § 240 et seq.
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 Farmingdale which has
an annual gross operating income in excess of $500.
The terms used in this article shall be defined as provided
in § 186-a of the Tax Law and § 5-530 of the Village
Law.
This article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village of Farmingdale;
B. Not apply and the tax shall not be imposed on any transaction originating
or consummated outside of the territorial limits of the Village of
Farmingdale, 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 June 1, 1962.
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 shall also have the power and authority to make any
rules or regulations or directives, not inconsistent with law, which,
in his 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 Clerk-Treasurer.
All such rules, regulations and directives shall be deemed a portion
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 unless the Village Clerk-Treasurer directs otherwise.
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 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 months' period is less than $3,000 may file
a return annually on July 25 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 Clerk-Treasurer
to file an annual return.
B. Contents. Returns shall be filed with the Village Clerk-Treasurer
on a form to be furnished by him 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
Clerk-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 or 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 Clerk-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 one 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 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 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, he may require at
any time a further or supplemental return, which shall contain any
data that may be specified by him, 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 Clerk-Treasurer
shall determine the amount due from such information as he is able
to obtain, and, if necessary, may estimate the tax on the basis of
external indexes or otherwise. He 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 him for a hearing, or unless the Village
Clerk-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 Act if application therefor is made to the Supreme
Court within 90 days after the giving of the notice of such final
determination; provided, however, that any such proceeding under said
article shall not be instituted unless the amount of any tax sought
to be reviewed, with such interest and penalties thereon as are herein
provided for, 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.
If, within one year from the giving of notice of any determination
or assessment of any tax or penalty, the utility 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 so 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 Clerk-Treasurer as hereinbefore
provided unless he, 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 certiorari proceeding that such determination
was erroneous or illegal. An application for refund, made as hereinbefore
provided, shall be deemed an application for the revision of any tax
or penalty complained of and the Clerk-Treasurer may receive additional
evidence with respect thereto. After making his determination, he
shall give notice thereof to the utility interested, and it shall
be entitled to a certiorari order to review 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 shall
have made a determination denying such refund, such determination
shall be reviewable by a proceeding under the New York 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 of the State
of New York 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 intent to evade the tax, no assessment or additional tax shall
be made with respect to taxes imposed under this article, after the
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 Clerk-Treasurer
and in order to further insure payment of the tax imposed hereby,
he 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 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 is made a lien.