Pursuant to the authority granted by § 5-530 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 June 1970 is hereby imposed
upon every utility doing business in the Village of Dundee, New York,
which is subject to the supervision of the State Department of Public
Service, which has a gross income for 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 from and after the first day of June
1970 is hereby imposed upon every other utility doing business in
the Village of Dundee, New York, which has a gross operating income
for 12 months ending May 31 in excess of $500, which taxes shall have
application only within the territorial limits of the Village of Dundee
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 Dundee, notwithstanding that some acts 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 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 Dundee, 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 Dundee,
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 Dundee, 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 Dundee, 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
Dundee, New York.
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, refrigeration, telephone or telegraph
service in the Village of Dundee, 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.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, 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 districts.
UTILITY
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 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, telephone 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 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 of Dundee
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.
At the time of the filing of a return as required by this article,
each utility shall pay to the Village of Dundee 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 shall 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.
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,
except the first month, 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
shall 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 to 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 Village Treasurer under
this article shall be paid into the treasury of the Village of Dundee,
New York, and shall be credited to and deposited in the general fund
of the Village.