[Adopted 4-19-1965]
[Amended by L.L. No. 2, 1965; 4-26-1965]
Pursuant to the authority granted by Section 138-d of the Village
Law, now renumbered Section 131 of said Village Law of the State of
New York, a tax equal to 1% of its gross income from and after the
first day of May, 1965 is hereby imposed upon every utility doing
business in the Village of Malone which is subject to the supervision
of the State Department of Public Service, which taxes shall have
application only within the territorial limits of the Village of Malone,
and shall be in addition to any and all other taxes imposed by any
other provision of law for the same period. Such taxes shall not be
imposed on any transaction originating or consummated outside of the
territorial limits of the Village of Malone, notwithstanding that
some act be necessarily performed with respect to such transaction
within such limits.
As used in this local law:
Includes every person subject to the supervision of the State
Department of Public Service and also includes every person (whether
or not such person is subject to such supervision) who sells gas,
electricity, steam, water, refrigeration, telephone, or telegraphy,
delivered through mains, pipes, or wires, or of furnished 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.
Means persons, corporations, companies, associations, joint-stock
association, copartnerships, estates, assignee 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 district.
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
be included in gross income) made or service rendered ultimate consumption
or use by the purchaser in the Village of Malone, 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; 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 Malone,
and in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Malone.
Every utility subject to tax under the local law 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.
[Amended by L.L. No. 2, 1965; 4-26-1965]
Every utility subject to tax hereunder shall file annually,
on or before the first day of April, a return for the 12 calendar
months ending December 31 of the prior year, including any period
for which the tax imposed hereby or by any amendment hereof 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 ending the last day of the prior month, including
any period for which the tax imposed hereby or by any amendment hereof
is effective. 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 local law,
each utility shall pay to the Village Treasurer the tax imposed by
this local law for the period covered by such return. Such tax shall
be due and payable at the time for 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 local law 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 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 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
such 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.
Except in the case of wilfully false or fraudulent return with
intent to evade the tax, no assessment of additional tax shall be
made with respect to taxes imposed under this section after expiration
of more than three years from the date of filing of a return, provided,
however, that where no return had been filed as required by this local
law the tax may be assessed at any time.
Any notice authorized or required under the provisions of this
local law 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 under this local law, or, if no return has
been filed, then to such address as may be obtainable.
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
local law 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 for a period not exceeding
60 days, 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.
[Amended by L.L. No. 2, 1965; 4-26-1965]
If, within one year of the payment of said 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 one year 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 money collected under this local law. 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 this determination, the Village Treasurer shall give notice
thereto to the person interested, and he shall be entitled to an order
to review such determination under said Article 78 subject to the
provisions therein before contained relating to the granting of such
an order.
The tax imposed by this local law shall be charged against and
be paid by the utility and shall not be added as a separate item by
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 local law, 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 Section 186-a of the Tax Law is made a lien.
In the administration of this local law 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 local law, and to subpoena and require the attendance of
witnesses and the production of books, papers and documents.
All taxes and penalties received by the Village Treasurer under
this local law shall be credited and deposited by him in the general
fund of the village.
This local law shall take effect immediately.
