[Adopted 9-14-1937 by L.L. No. 1-1937]
[Amended 12-13-1955 by L.L. No. 22-1955; 7-18-1978 by L.L. No.
8-1978; 4-24-1979 by L.L. No. 10-1979; 7-9-1980 by L.L. No.
8-1980]
Pursuant to the authority granted by § 20-b of the
General City Law of the State of New York, a tax equal to 3% of its
gross income, from and after the effective date of this amendment,
is hereby imposed upon every utility doing business in the City of
Yonkers 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 omnibus corporations subject to such
supervision under Article 3-A of the Public Service Law and motor
carriers or brokers subject to such supervision under Article 3-B
of said law, and a tax equal to 3% of its gross operating income is
hereby imposed, from and after the effective date of this amendment,
upon every other utility doing business in the City of Yonkers 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 Yonkers and shall be in addition to any and
all other taxes and fees imposed by any other provision of law for
the same period. Such taxes shall not be imposed on any transaction
originating or consummated outside the territorial limits of the City
of Yonkers, notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
[Amended 6-13-1938 by L.L. No. 1-1938]
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, made or service rendered for ultimate consumption or
use by the purchaser in the City of Yonkers, 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 the materials
used, labor or services or other costs, interest or discount paid,
or any other expense whatsoever; also profit from the sale of securities;
also profit 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; also receipts from interest, dividends and royalties,
derived from sources within the City of Yonkers 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 expense whatsoever incurred in connection with the receipt
thereof; and also profit from any transaction (except sales for resale
and rentals) within the City of Yonkers 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 Yonkers, 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 other expenses
whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock
companies, 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 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 who shall engage in the business of selling gas, electricity,
steam, water, refrigeration, telephony or telegraphy, delivered through
mains, pipes or wires, or of furnishing gas, electric, steam, water,
refrigerator, telephone or telegraph service, by means of mains, pipes
or wires.
Every utility subject to tax under this section shall keep such
records of its business and in such form as the Comptroller of the
City of Yonkers may require and such records shall be preserved for
a period of three years, except that the Comptroller of the City of
Yonkers may consent to their destruction within that period or may
require that they be kept longer.
[Amended 6-27-1950 by L.L. No. 3-1950]
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 article, any utility whose average
gross income or average gross operating income, as the case may be,
for the aforesaid three-months' 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 Yonkers 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
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 the Comptroller. 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 Comptroller of the City of Yonkers 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.
[Amended 9-12-1939 by L.L. No. 6-1939]
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Comptroller of the City of Yonkers, and if
a corrected or sufficient return is not filed within 20 days after
the same is required by notice from the Comptroller of the City of
Yonkers, or if no return is made for any period, the Comptroller of
the City of Yonkers 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
of the City of Yonkers 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 of the City of Yonkers for a hearing, or
unless the Comptroller of the City of Yonkers of his own motion shall
reduce the same. After such hearing, the Comptroller of the City of
Yonkers shall give notice of his decision to the person liable for
the tax. The decision of the Comptroller of the City of Yonkers 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 30 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 Comptroller of the City
of Yonkers 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.
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 of the City of Yonkers,
if satisfied that the delay was excusable, may remit all or any portion
of such penalty.
[Amended 9-12-1939 by L.L. No. 6-1939]
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 of the City of Yonkers or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the Comptroller of the City of Yonkers 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
of the City of Yonkers. However, no refund shall be made of a tax
or penalty paid pursuant to a determination of the Comptroller of
the City of Yonkers as hereinbefore provided unless the Comptroller
of the City of Yonkers, 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 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 Comptroller of the City
of Yonkers may receive additional evidence with respect thereto. After
making this determination, the Comptroller of the City of Yonkers
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 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 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 of the City of Yonkers, 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 of the City of Yonkers.
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-b of the
Tax Law is made a lien.
In the administration of this article, the Comptroller of the
City of Yonkers 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 the proper judicial order as otherwise
provided by law, it shall be unlawful for the Comptroller of the City
of Yonkers or any agent, clerk or employee of the City of Yonkers
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 City of Yonkers 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 Comptroller of the
City of Yonkers, may assist in the collection of such delinquent taxes;
or the inspection by the Corporation Counsel or other legal representatives
of the City of Yonkers 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 six
months, or both, and if the offender be an officer, agent, clerk or
employee of the City of Yonkers, he shall be dismissed from office
and shall be incapable of holding any office or employment in the
City of Yonkers for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the Comptroller of
the City of Yonkers may exchange with the Comptroller of any other
City in the State of New York information contained in returns filed
under this article, provided that such other City grants similar privileges
to the City of Yonkers and provided that such information is to be
used for tax purposes only, and the Comptroller of the City of Yonkers
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Comptroller of the City
of Yonkers under this article shall be deposited by him in a separate
bank account or accounts and shall be used solely and exclusively
for the purpose of granting relief from the hardships and suffering
caused by unemployment within the City of Yonkers.
If, in any case under the provisions hereof, any return is required
to be filed on a date prior to the time when this article takes effect,
the Comptroller of the City of Yonkers is hereby authorized to extend
the time within which such return may be filed.