When used in this article, the following terms shall mean and
include:
AFFIXED
Includes attached or annexed by adhesion, stapled or otherwise
or a notation by stamp, imprint or writing.
CITY
The City of Yonkers.
CONSIDERATION
The price actually paid or required to be paid for the real
property or interest therein, without deduction for mortgages, liens
or encumbrances, whether or not expressed in the deed and whether
paid or required to be paid by money, property or any other thing
of value. It shall include the cancellation or discharge of an indebtedness
or obligation.
DEED
Any document, instrument or writing (other than a will),
regardless of where made, executed or delivered, whereby any real
property or interest therein is created, vested, granted, bargained,
sold, transferred, assigned or otherwise conveyed.
GRANTEE
The person accepting the deed or who obtains any of the real
property which is the subject of the deed or any interest therein.
GRANTOR
The person making, executing or delivering the deed.
PERSON
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, any combination of individuals
and any other form of unincorporated enterprise owned or conducted
by two or more persons.
REAL PROPERTY OR INTEREST THEREIN
Every estate or right, legal or equitable, present or future,
vested or contingent, in lands, tenements or hereditaments, which
are located in whole or in part within the City of Yonkers. It shall
not include a mortgage, a release of mortgage or a leasehold for a
stated term of years or part of a year. It shall not include rights
to sepulture.
[Amended 7-11-1984 by G.O. No. 4-1984; 10-10-1989 by G.O. No.
10-1989; 6-23-1998 by G.O. No. 3-1998; 5-31-2005 by G.O. No. 7-2005]
A tax is hereby imposed on each deed at the time of delivery
by a grantor to a grantee when the consideration for real property
and any improvement thereon (whether or not included in the same deed)
exceeds $25,000. The tax shall be at the rate of 1 1/2% of the
consideration. Where any real property is situated partly within and
partly without the boundaries of the City of Yonkers, the consideration
subject to tax shall be such part of the total consideration attributable
to that portion of such real property situated within the City of
Yonkers or to the interest in such portion.
For the purpose of the proper administration of this article
and to prevent evasion of the tax hereby imposed, it shall be presumed
that all deeds are taxable. Where the net consideration includes property
other than money, it shall be presumed that the consideration is the
value of the real property or interest therein. Such presumptions
shall prevail until the contrary is established, and the burden of
proving the contrary shall be on the taxpayer.
[Amended 11-27-2012 by G.O. No. 17-2012]
The tax imposed hereunder shall be paid by the grantor to the
City of Yonkers within seven days after the delivery of the deed by
the grantor to the grantee, but before the recording of such deed.
The grantee shall also be liable for the payment of such tax in the
event that the grantor is exempt from tax. Evidence of the payment
of the tax shall be affixed to the deed. The Comptroller may provide
for the use of stamps as evidence of payment and that they shall be
affixed to the deed before it is recorded.
If a return required by this article is not filed, or if a return
when filed is incorrect or insufficient, the amount of tax due shall
be determined by the Comptroller from such information as may be obtainable,
including the assessed valuation of the real property or interest
therein. Notice of such determination shall be given to the person
liable for the tax. Such determination shall finally and irrevocably
fix the tax unless the person against whom it is assessed, within
30 days after the giving of notice of such determination, shall apply
to the Comptroller for a hearing, unless the Comptroller, of his own
motion, shall redetermine the same. After such hearing, the Comptroller
shall give notice of his determination to the person against whom
the tax is assessed. The determination of the Comptroller shall be
reviewable for error, illegality or unconstitutionality of any other
reason whatsoever by a proceeding under Article 78 of the Civil Practice
Law and Rules if application therefor is made to the Supreme Court
within four months after the giving of the notice of such determination.
A proceeding under Article 78 of the Civil Practice Law and Rules
shall not be instituted unless the amount of any tax sought to be
reviewed, with penalties and interest thereon, if any, shall be first
deposited with the Comptroller and there shall be filed with the Comptroller
an undertaking, issued by a surety company authorized to transact
business in this state and approved by the Superintendent of Insurance
of this state as to solvency and responsibility, 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 the proceeding; or, at the option of the applicant,
such undertaking filed with the Comptroller may be in a sum sufficient
to cover the taxes, penalties and interest thereon stated in such
determination plus the costs and charges which may accrue against
it in the prosecution of the proceeding, in which event the applicant
shall not be required to deposit such taxes, penalties and interest
as a condition precedent to the application.
The remedies provided by §§
15-65 and
15-66 of this article shall be exclusive remedies available to any person for the review of tax liability imposed by this article; and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than a proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Comptroller prior to the institution of such suit and posts a bond for costs as provided in §
15-65 of this article.
In addition to the powers granted to the Comptroller in this
article, he is hereby authorized and empowered:
A. To make, adopt and amend rules and regulations appropriate to the
carrying out of this article and the purposes thereof.
B. To extend, for cause shown, the time for filing any return for a
period not exceeding 90 days and for cause shown, to remit penalties
but not interest computed at the rate of 8% per annum; and to compromise
disputed claims in connection with the taxes hereby imposed.
C. To request information from the Tax Commission of the State of New
York or the Treasury Department of the United States relative to any
person, and to afford returns, reports and other information to such
Tax Commission or such Treasury Department relative to any person,
any other provision of this article to the contrary notwithstanding.
D. To delegate his functions hereunder to the City Auditor or any employee
or employees of the Department of Finance and Management Services.
E. To prescribe the methods for determining the consideration attributable
to that portion of real property located partly within and partly
without the City of Yonkers which is located within the City of Yonkers
or any interest therein.
F. To require any grantor or grantee to keep such records and for such
length of time as may be required for the proper administration of
this article and to furnish such records to the Comptroller upon request.
G. To assess, determine, revise and adjust the taxes imposed under this
article.
[Added 8-13-1973 by G.O. No. 9-1973]
In order to implement the purpose of this article, the Mayor
is authorized to enter into an agreement with the County of Westchester
to save harmless said county, the County Clerk and his Deputies and
Assistants, from any liability arising from the said Clerk's, his
Deputies' or Assistants' refusal or failure to file a deed unless
proof of the payment of the tax provided in this article is submitted
to him or from any liability arising from recording a deed without
such proof. The Mayor is also authorized to enter into similar agreements
with real estate title insurance companies saving them harmless from
any liability arising out of their cooperation in collecting the tax
provided herein on behalf of the City of Yonkers.