Pursuant to the authority granted by § 20-b of the
General City Law of the State of New York, a tax equal to 1% of its
gross income from and after July 1, 1937, is hereby imposed upon every
utility doing business in the City of Cohoes 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, and a tax equal to 1% of its gross
operating income is hereby imposed from and after July 1, 1937, upon
every other utility doing business in the City of Cohoes 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 City of Cohoes and shall be in addition to any and all
other taxes and fees imposed by any other provisions of law for the
same period. Such taxes shall not be imposed on any transactions originating
or consummated outside of the territorial limits of the City of Cohoes,
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:
GROSS INCOME
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 City of Cohoes, 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 materials
used, labor or services or other costs, interest or discount paid,
or any other expense 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 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 City of
Cohoes 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 City of Cohoes whatsoever.
GROSS OPERATING INCOME
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 City of Cohoes, 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.
PERSON
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.
UTILITY
Includes every person subject to the supervision of either
Division of 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 Comptroller may require,
and such records shall be preserved for a period of three years, except
that the Comptroller may consent to their destruction within that
period or may require that they be kept longer.
Every utility subject to tax hereunder shall file, on or before
September 25, December 25, March 25 and June 25, a return for the
three calendar months preceding each such return date, including any
period for which the tax imposed hereby or by any amendment hereof
is effective, each of which returns shall state the gross income or
gross operating income for the period covered by each such return.
Returns shall be filed with the Comptroller on a form to be furnished
by him for such purpose and shall contain such other data, information
or matter as the Comptroller may require to be included therein. Notwithstanding
the foregoing provisions of this section, any utility whose average
gross income or average gross operating income, as the case may be,
for the aforesaid three-month periods is less than $1,500, may file
a return annually on June 25, for the 12 preceding calendar months,
and the Comptroller may require any utility doing business in the
City of Cohoes to file an annual return which shall contain any data
specified by the Comptroller regardless of whether the utility is
subject to tax under this article. The Comptroller, in order to ensure
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 the
Comptroller. Every return shall have annexed thereto an affidavit
of the head of the utility making the same, or of the copartner thereof,
or of a principal officer of the corporation, if such business be
conducted by a corporation, to the effect that statements contained
therein are true.
At the time of filing a return as required by this article,
each utility shall pay to the Comptroller 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 Comptroller, and if a corrected or sufficient
return is not filed within 20 days after the same is required by notice
from the Comptroller, or if no return is made for any period, the
Comptroller 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. The Comptroller 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 Comptroller
for a hearing or unless the Comptroller of his own motion shall reduce
the same. After such hearing, the Comptroller shall give notice of
his decision to the person liable for the tax. Any final determination
by the Comptroller 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 is made to the Supreme Court within 30
days after the giving of a notice of such final determination; provided,
however, that any such proceeding under Article 78 of the Civil Practice
Act 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 or regulation, 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 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 Comptroller, if satisfied that the
delay was excusable, may remit all or any portion of such penalty.
If, within one year from the payment of any tax or penalty,
the payer thereof shall make application for a refund thereof and
the Comptroller or the court shall determine that such tax or penalty
or any portion thereof was erroneously or illegally collected, the
Comptroller 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 Comptroller. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Comptroller as hereinbefore
provided unless the Comptroller, 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 Comptroller may receive
additional evidence with respect thereto. After making this determination,
the Comptroller shall give notice thereof to the person interested,
and he shall be entitled to an order to review such determination
under said Article 78, subject to the provisions hereinbefore contained
relating to the granting of such an order.
The tax imposed by this article shall be charged 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 Corporation Counsel shall, upon the request of
the Comptroller, bring an action to enforce payment of the same. The
proceeds of any judgment obtained in any such action shall be paid
to the Comptroller. 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 Comptroller 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.
All taxes and penalties received by the Comptroller under this
article shall be credited to and deposited in the general fund of
the City of Cohoes.