[Adopted 7-16-1973 by G.O. No. 8-1973]
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.
COMPTROLLER
The Comptroller of 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[1]]
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.
[1]
Editor's Note: This local law provided that it shall take effect 7-1-2005.
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.
A. 
A joint return shall be filed by both the grantor and the grantee for each deed, whether or not a tax is due thereon. Such returns shall be filed with the Comptroller at the time of payment of any tax imposed hereunder or, in the case of a deed not subject to tax, before the recording of such deed. Filing shall be accomplished by delivering the return to the Comptroller. The Comptroller shall prescribe the form of the return and the information which it shall contain. The return shall be signed under oath by both the grantor or his agent and the grantee or his agent. Where either the grantor or grantee has failed to sign the return, it shall be accepted as a return, but the party who has failed to sign the return or file a separate return shall be subject to the penalties applicable to a person who has failed to file a return, and the period of limitations for assessment of tax or of additional tax shall not apply to such party.
B. 
Returns shall be preserved for three years and thereafter until the Comptroller permits them to be destroyed.
C. 
The Comptroller may require amended returns to be filed within 20 days after notice and to contain the information specified in the notice.
D. 
If a return required by this article is not filed or if a return when filed is incorrect or insufficient on its face, the Comptroller shall take the necessary steps to enforce the filing of such a return or of a corrected return.
E. 
Where a deed has more than one grantor or more than one grantee, the return may be signed by any one of the grantors and by any one of the grantees; provided, however, that those not signing shall not be relieved of any liability for the tax imposed by this article.
A. 
The following shall be exempt from the payment of the tax imposed by this article and from filing a return:
(1) 
The State of New York, or any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to agreement or compact with another state) or political subdivisions.
(2) 
The United States of America, and any of its agencies and instrumentalities, insofar as they are immune from taxation; provided, however, that the exemption of such governmental bodies or persons shall not relieve a grantee from them of liability for the tax or from filing a return.
B. 
The tax imposed by this article shall not apply to any of the following deeds:
(1) 
A deed by or to the United Nations or other worldwide international organizations of which the United States of America is a member.
(2) 
A deed by or to any corporation, association, trust, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, or for the prevention of cruelty to children or animals, and no part of the net earnings of which inures to the benefits of any private shareholder or individual and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; provided, however, that nothing in this subsection shall include an organization operated for the primary purpose of carrying on a trade or business for profit, whether or not all of its profits are payable to one or more organizations described in this subsection.
(3) 
A deed to any governmental body or person exempt from payment of the tax pursuant to Subsection A of this section.
(4) 
A deed delivered pursuant to a contract made prior to the effective date of this article.
(5) 
A deed delivered by any governmental body or person exempt from payment of the tax pursuant to Subsection A of this section as a result of a sale at a public auction held in accordance with the provisions of a contract made prior to the effective date of this article.
(6) 
A deed from a mere agent, dummy, straw man or conduit to his principal or a deed from the principal to his agent, dummy, straw man or conduit.
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.
A. 
In the manner provided in this section, the Comptroller shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application to the Comptroller for such refund shall be made within one year from the payment thereof. Whenever a refund is made by the Comptroller he shall state his reason therefor in writing. Such application may be made by the grantor, grantee or other person who has actually paid the tax. The Comptroller may, in lieu of any refund required to be made, allow credit therefor on payments due from the applicant.
B. 
An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax, penalty or interest complained of, and the Comptroller may receive evidence with respect thereto. After making his determination, the Comptroller shall give notice thereof to the applicant, who shall be entitled to review such determination by a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided that such proceeding is instituted within four months after the giving of notice of such determination and provided that a final determination of tax due was not previously made. Such a proceeding shall not be instituted unless an undertaking is filed with the Comptroller 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.
C. 
A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of § 15-65 of this article where he has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the Comptroller made pursuant to this section unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper, by the Comptroller after a hearing, or on his own motion, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
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.
A. 
Whenever any grantor or grantee shall fail to pay any tax, penalty or interest imposed by this article as herein provided, the Corporation Counsel shall, upon the request of the Comptroller, bring or cause to be brought an action to enforce the payment of the same on behalf of the City of Yonkers in any court of the State of New York or of any other state or of the United States. If, however, the Comptroller in his discretion believes that any such grantor or grantee subject to the provisions of this article is about to cease business, leave the state or remove or dissipate the assets out of which the tax or penalty might be satisfied, and that any such tax or penalty will not be paid when due, he may declare such tax or penalty to be immediately due and payable and may issue a warrant immediately.
B. 
As an additional or alternate remedy, the Comptroller may issue a warrant directed to the Sheriff of Westchester County commanding him to levy upon and sell the real and personal property of the grantor, grantee or other person liable for the tax which may be found within the City, for the payment of the amount thereof, with any penalty and interest, and the cost of executing the warrant, and to return such warrant to the Comptroller and to pay to him the money collected by virtue thereof within 60 days after the receipt of such warrant. Said sheriff shall, within five days after the receipt of the warrant, file with the Clerk of Westchester County a copy thereof, and thereupon such Clerk shall enter in the judgment docket the name of the person mentioned in the warrant and the amount of the tax, penalty and interest for which the warrant is issued and the date when such copy is filed. Thereupon, the amount of such warrant so docketed shall become a lien upon the title to and the interest in real and personal property of the person against whom the warrant is issued. The Sheriff shall then proceed upon the warrant in the same manner, and with like effect, as that provided by law in respect to executions issued against property upon judgments of a court of record and for services in executing the warrant, he shall be entitled to the same fees, which he may collect in the same manner. In the discretion of the Comptroller, a warrant of like terms, force and effect may be issued and directed to an officer or employee of the Department of Finance and Management Services, and, in the execution thereof, such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. If a warrant is returned not satisfied in full, the Comptroller may from time to time issue new warrants and shall also have the same remedies to enforce the amount due thereunder as if the City had recovered judgment therefor and execution thereon had been returned unsatisfied.
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.[1]
[1]
Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.
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.
A. 
The Comptroller or his employees or agents duly designated and authorized by him shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of their powers and duties under this article. The Comptroller shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of his duties hereunder and of the enforcement of this article and to examine them in relation thereto and to issue commissions for the examination of witnesses who are out of the state or unable to attend before him or excused from attendance.
B. 
A Justice of the Supreme Court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and documents called for by the subpoena of the Comptroller under this article.
C. 
Any person who shall refuse to testify or to produce books or records or who shall testify falsely in any material matter pending before the Comptroller under this article shall be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.
D. 
The officers who serve the summons or subpoena of the Comptroller and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the Sheriff of Westchester County and his duly appointed deputies or any officers or employees of the Department of Finance and Management Services, designated to serve such process.
A. 
Any person failing to file a return or to pay any tax within the time required by this article shall be subject to a penalty of 8% of the amount of tax due, plus interest at the rate of 1% of such tax for each month of delay or fraction thereof, except 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 part of such penalty, but not interest, at the rate of 8% per year. Such penalties and interest shall be paid and disposed of in the same manner as other revenues from this article. Unpaid penalties and interest may be enforced in the same manner as the tax imposed by this article.
B. 
Any grantor, grantee or officer of a corporation failing to file a return required by this article, or filing or causing to be filed or making or causing to be made or giving or causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this article which is willfully false, and any grantor, grantee or officer of a corporation failing to keep the records required by § 15-69F of this article, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.
C. 
The certificate of the Comptroller to the effect that a tax has not been paid or that information has not been supplied pursuant to the provisions of this article shall be presumptive evidence thereof.
D. 
Any person willfully simulating, altering, defacing, destroying or removing any evidence of the filing of a return or the payment of a tax provided for in this article shall be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.
A. 
Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the Comptroller or any officer or employee of the Department of Finance and Management Services to divulge or make known in any manner any information contained in or relating to any return provided for by this article. The officers 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 Comptroller in an action or proceeding under the provisions of this article, or on behalf of any party to an 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 grantor or grantee of a deed or to any subsequent owner of the real property conveyed by such deed or to the duly authorized representative of any of them of a certified copy of any return filed in connection with the tax on such deed, nor to prohibit the delivery of such a certified copy of such return or of any information contained in or relating thereto to the United States of America or any department thereof, the State of New York or any department thereof, the City of Yonkers or any department thereof, provided that the same is required for official business, nor to prohibit the inspection for official business of such returns by the Corporation Counsel or other legal representatives of the City or by the District Attorney of the County of Westchester; nor to prohibit the publication of statistics so classified as to prevent the identification of particular returns or items thereof.
B. 
Any violation of Subsection A of this section shall be punishable by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both, in the discretion of the court, and if the offender be an officer or employee of the City he shall be dismissed from office and be incapable of holding any public office in this City for a period of five years thereafter.
A. 
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 in the last return filed by him pursuant to the provisions of this article, in any application made by him, or in any deed which is the subject of the notice, or, if no return has been filed or application made or address stated in the deed, 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.
B. 
The provisions of the Civil Practice Law and Rules or any other law relative to limitations of time for the enforcement of a civil remedy shall not apply to any proceeding or action taken by the City to levy, appraise, assess, determine or enforce the collection of any tax or penalty provided by this article. However, except in the case of a 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 provided by law, the tax may be assessed at any time.
C. 
Where, before the expiration of the period prescribed herein for the assessment of an additional tax, a taxpayer has consented in writing that such period be extended, the amount of such additional tax due may be determined at any time within such extended period. The period so extended may be further extended by subsequent consents in writing made before the expiration of the extended period.
[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.