[Adopted 2-17-1969 by L.L. No. 1-1969 (Art. I of Ch. 41 of
the 1965 Code of the Village of Warsaw)]
[Amended 3-27-1995 by L.L. No. 6-1995]
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 April 1969 is hereby imposed
upon every utility doing business in the Village of Warsaw 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 motor carriers or brokers subject to such supervision
under Article 3-B of the Public Service Law,[1] and a tax equal to 1% of its gross operating income from
and after the first day of May 1950 is hereby imposed upon every other
utility doing business in the Village of Warsaw 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 Village of Warsaw 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
the territorial limits of the Village of Warsaw, notwithstanding that
some act is necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: Article 3-B of the Public Service Law
was repealed by Chapter 267, § 5, of the Laws of 1970.
As used in this article, the following terms shall have the
meanings indicated:
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 shall be included
in gross income) made or service rendered for ultimate consumption
or use by the purchaser in the Village of Warsaw, 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 securities, profits from the sale of real property growing
out of the ownership or use of or interest in such property, profits
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 cost of the period for which a return is made),
receipts from interest, dividends and royalties derived from sources
within the Village of Warsaw other than such as are received from
a corporation, a majority of whose voting stock is owned by the tax-paying
utility, without any deduction therefrom for any expenses whatsoever
incurred in connection with the receipt thereof and profits from any
transaction (except sales for resale and rentals) within the Village
of Warsaw 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 Warsaw and, in the case of a utility
engaged in selling telegraphy or telegraph service, only receipts
from transactions wholly consummated within the Village of Warsaw.
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 Village of Warsaw, 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.
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.
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 of 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 or telephony delivered through mains, pipes or
wires or furnishes 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.
Every utility subject to tax under this article 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.
Every utility subject to tax hereunder shall file annually,
on or before the 25th day of March, a return for the 12 calendar months
preceding such return date or any portion thereof for which the tax
imposed hereby 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 preceding each such
return date and, in the case of the first such return, for all preceding
calendar months during which the tax imposed hereby was effective.
Every return shall state the gross income or gross operating income
for the period covered thereby. Returns shall be filed with the Village
Treasurer on a form to be furnished by him for such purpose and shall
contain such other data, information or matter as he may require to
be included therein. The Village Treasurer, in order to ensure 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 him,
and he may require any utility doing business in the Village of Warsaw
to file an annual return, which shall contain any data specified by
him, regardless of whether the utility is subject to tax under this
article. 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
is 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 Village Treasurer 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.
A.
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
is 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.
B.
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 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, 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 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 3-27-1995 by L.L. No. 6-1995]
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 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, 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
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 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 § 186-a of the Tax Law is made a lien.
In the administration of this article, the Village Treasurer
shall have the 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, 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 proper judicial order or as otherwise provided
by law, it shall be unlawful for the Village Treasurer or any agent,
clerk or employee of the Village of Warsaw 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 Village of Warsaw in an action 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 or 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 Village
Treasurer, may assist in the collection of such delinquent taxes;
or the inspection by the Village Attorney or other legal representatives
of the Village of Warsaw 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 one
year, or both, and if the offender is an officer, agent, clerk or
employee of the Village of Warsaw, he shall be dismissed from office
and shall be incapable of holding any office or employment in the
Village of Warsaw for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the Village Treasurer
may exchange with the Chief Fiscal Officer of any city or any other
village in the State of New York information contained in returns
filed under this article, provided that such a city or other village
grants similar privileges to the Village of Warsaw and provided that
such information is to be used for tax purposes only, and the Village
Treasurer shall, upon request, furnish the State Tax Commission with
any information contained in such returns.
All taxes and penalties received by the Village Treasurer under
this article shall be paid into the treasury of the village and shall
be credited to and deposited in the general fund of the village.