[Adopted 10-13-1950 by L.L. No. 3-1950 (Ch. 52 of the 1972
Code)]
Pursuant to the authority granted by § 138-d of the
Village Law of the State of New York[1], a tax equal to 1% of its gross income from and after
the first day of May, 1950, is hereby imposed upon every utility doing
business in the Village of Nyack, which is subject to the supervision
of the State Department of Public Service, which has a gross income
for the 12 months ending May 31 in excess of $500, except motor carriers
or brokers subject to such supervision under Article 3-b of the Public
Service Law[2], and a tax equal to 1% of its gross operating income from
and after the first day of May, 1950 is hereby imposed upon every
other utility doing business in the Village of Nyack, which has a
gross operating income for the 12 months ending May 31 in excess of
$500, which taxes shall have application only within the territorial
limits of the Village of Nyack, 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 Nyack notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
As used in this article, the following terms shall have the
meanings indicated:
Means and includes 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 of Nyack, 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 on account of the cost of the property sold, the cost of
the materials used, labor or other services or other costs, interest
or discount paid, or any other expenses whatsoever: also profits from
the sale of securities: 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 person 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 Nyack 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 Nyack 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 Nyack, and
in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Nyack.
Means and includes 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, refrigerator,
telephone or telegraph service in the Village of Nyack, including
cash, credits and property of any kind or nature, within any deduction
therefrom on account of the cost of the property sold, and cost of
materials used, labor or services or other costs, interest or discount
paid, or any other expenses whatsoever.
Means persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees of rents, any person
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.
Includes 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 of 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, 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.
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, and such records shall be preserved for a period of three
years, except that the Village Treasurer 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 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 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. Return 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 Nyack
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
be 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 Treasurer 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.
A.
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 persons 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
Act 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 will pay all costs
and charges which may accrue in the prosecution of such proceeding,
or at the option of the applicant, 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.
B.
Except in the case of a 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 person 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 it shall have been established in a proceeding
under Article 78 of the Civil Practice Act 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 any
order to review such determination under said Article 78, subject
to the provisions hereinbefore contained relative 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 cost 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 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.
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.
A.
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 Nyack 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 Nyack 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 representatives
of the Village of Nyack 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.
B.
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 be an officer, agent, Clerk or
employee of the Village of Nyack he shall be dismissed from office,
and shall be incapable of holding any office or employment in the
Village of Nyack for a period of five years thereafter.
C.
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 such city or other Village grants
similar privileges to the Village of Nyack, and provided 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 and shall
be credited to and deposited in the general fund of the Village.
