[Adopted 9-21-1970 by L.L. No. 1-1970]
Pursuant to the authority granted by § 6-640 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 October 1970 is hereby imposed
upon every utility doing business in the Village of Wolcott, New York,
which is subject to the supervision of the State Department of Public
Service, which has a gross income for 12 months ending September 30
in excess of $500, except motor carriers or brokers subject to such
supervision under Article 3b of the Public Service Law, and a tax
equal to 1% of its gross operating income from and after the first
day of October 1970 is hereby imposed upon every other utility doing
business in the Village of Wolcott, New York, which has a gross operating
income for the 12 months ending September 30 in excess of $500, which
taxes shall have application only within the territorial limits of
the Village of Wolcott, New York, 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 Wolcott,
New York, notwithstanding that some act be necessarily performed with
respect to such transaction within such limits.
For the purpose of this article, the terms used herein are defined
as follows:
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 Wolcott, 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 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 Wolcott,
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 Wolcott, 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 Wolcott, 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
Wolcott, New York.
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 Wolcott, 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 services or other costs, interest, or discount paid,
or any other expenses whatsoever.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees 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,
political and civil subdivisions of the state or municipality, and
public districts.
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 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, electricity, 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 form as the Village Treasurer
may require, or as the Village Board may require, and such records
shall be preserved for a period of three years, except that the Village
Treasurer or the Village Board 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 of February, a return for the 12 calendar months,
ending the 31st day of December, or on or before the 25th day of 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 insure 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 Wolcott, New York, 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,
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 filing a return, as required by this article,
each utility shall pay to the Village of Wolcott 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.
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 be dismissed or the tax confirmed, the applicant
shall pay all costs and charges which may accrue in the prosecution
of such proceeding, or, at the option of the application, 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 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 a 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 if 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 an order to review such determination under said Article
78 of the Civil Practice Law and Rules of the State of New York, 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 Board, 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.
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.
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 Wolcott, New York,
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 Wolcott, 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 representative of the Village
of Wolcott, 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.
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 Wolcott, New York, he shall be dismissed
from office and shall be incapable of holding any office or employment
for the Village of Wolcott, New York, for a period of five years thereafter.
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 city or other
village grants similar privileges to the Village of Wolcott, New York,
and 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 of Wolcott,
New York, and shall be credited to and deposited in the general fund
of the Village.
This article shall take effect October 1, 1970.
