[Adopted 3-13-1973 as Ch. XIII of the Walden Village Code (Ch. 134, Art. II, of the 1982 Code)]
Editor's Note: Ch. XIII of the Walden Village Code was derived from L.L. No. 2-1971, adopted 8-10-1971.
Pursuant to the authority granted by Article 6, § 6-640, of the Village Law of the State of New York, from, on and after September 1, 1971, there is hereby imposed:
A tax equal to 1% of the gross income of every utility doing business in the Incorporated Village of Walden 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 3 of the Public Service Law.
A tax equal to 1% of the gross operating income of every other utility doing business in the Incorporated Village of Walden which has an annual gross operating income in excess of $500.
Editor's Note: The provision is currently in Article 5, § 5-530, of the Village Law.
The terms used in this article shall be defined as provided in § 186-a of the Tax Law and Subdivision 4 of § 5-530 of Village Law.
This article and the tax imposed thereby shall:
Apply only within the territorial limits of the Village of Walden.
Not apply and the tax shall not be imposed on any transaction originating or consummated outside the territorial limits of the Village of Walden notwithstanding that some act be necessarily performed with respect to such transaction within such limits.
Be in addition to any and all other taxes and fees imposed by any other provisions of law.
Apply to all subject income received on or after September 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 shall also have the power and authority to make any rules and 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 certified 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.
Time of filing. Every utility subject to a tax hereunder shall file, on or before the 25th day of the months of March, June, September and December, a return for the three calendar months immediately preceding each return, including any lesser period for which the tax imposed hereby or by any amendment hereof is effective.
Contents. Returns shall be filed with the Village 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 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 by the owner or the copartner thereof, or by a principal corporate officer to the effect that the statements contained therein are true.
At the time of filing 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 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 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, 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 or others and 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 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 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 indices 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 such determination, apply to him for a hearing or unless the Village 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 Article 78 shall not be instituted unless the amount of 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 proceedings 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 of 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 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 Treasurer, 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 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 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 commence a proceeding to review such determination in accordance with the provisions of the following section.
Where any tax imposed hereunder shall have been erroneously, illegally or unconstitutionally collected and application for the refund thereof shall have been 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 amounts 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 all costs and charges which may accrue in the prosecution of the proceedings.
Except in the case of a willfully false or fraudulent return with the intent to evade the tax, no assessment of 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 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 and in order to further ensure payment of the tax imposed hereby, he shall have the power to:
Whenever a 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 same. The process 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.