[L.L. No. 2-1937, § 1(2); L.L. No. 1-1938, § 1;
L.L. No. 2-1941, § 2]
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Includes receipts received in or by reason of any sale made,
conditional or otherwise, except sales referred to in this article
with respect to which it is provided that profits from the sale shall
be included in gross income, or service rendered for ultimate consumption
or use by the purchasers in the city, 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;
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 city 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 city whatsoever.
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;
in or by reason of the furnishing for such consumption or use of gas,
electric, steam, water, refrigeration, telephone, or telegraph service
in the city, 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, 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 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. Utility also includes
every person, whether or not such person is subject to such supervision,
who sells gas, electricity, steam, water, refrigeration, telephony,
or telegraphy, 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.
[L.L. No. 2-1937, § 1(1); L.L. No. 1-1938, § 1;
L.L. No. 2-1939, § 1; L.L. No. 24-1940, § 1; L.L.
No. 2-1941, § 2; L.L. No. 1-1942, § 2; L.L. No.
1-1944, § 2; L.L. No. 1-1945, § 2; L.L. No. 2-1946,
§ 2; L.L. No. 1-1947, § 2; L.L. No. 2-1[8, § 2;
L.L. No. 3-1949, § 2; L.L. No. 2-1950, § 2; L.L.
No. 2-1955, § 2]
Pursuant to the authority granted by General City Law section
20-b, a tax equal to 1% of its gross income is hereby imposed on every
utility doing business in the city 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 of this year or any subsequent year
in excess of $500, except motor carriers or brokers subject to such
supervision under the Transportation Law and a tax equal to 1% of
its gross operating income is hereby imposed for the same period upon
every other utility doing business in the city which has a gross operating
income for the 12 months ending May 31 in excess of $500, except omnibus
corporations subject to the supervision of the state department of
transportation under Transportation Law art. 7 [§ 150 et
seq.] upon which omnibus corporations a tax equal to 1/2 of 1% of
its gross operating income during the aforesaid periods is hereby
imposed; the aforesaid taxes shall have application only within the
territorial limits of the city 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 of the territorial limits of the
city, notwithstanding that some act be necessarily performed with
respect to such transaction within such limits.
[L.L. No. 2-1937, § 1(4); L.L. No. 1-1938, § 1;
L.L. No. 2-1939, § 1; L.L. No. 24-1940, § 1; L.L.
No. 2-1941, § 2; L.L. No. 1-1942, § 2; L.L. No.
1-1944, § 2; L.L. No. 1-1945, § 2; L.L. No. 2-1946,
§ 2; L.L. No. 1-1947, § 2; L.L. No. 2-1[8, § 2;
L.L. No. 3-1949, § 2; L.L. No. 2-1950, § 2; L.L.
No. 2-1955, § 2]
Every utility subject to tax pursuant to this article 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 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 city auditor on a form to be furnished by him for such
purpose and shall contain such other data, information, or matter
as the city auditor may require to be included therein. Notwithstanding
the foregoing provisions of this section, any utility whose average
gross operating income, as the case may be, for the aforesaid three-month
period is less than $1,500, may file its return for such period on
June 25 of each and every year hereafter. The city auditor, 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 city auditor. Every return shall have annexed thereto an affidavit
of the head of the utility making the return or of the owner or of
the co-partner 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.
[L.L. No. 2-1937, § 1(3)]
Every utility subject to tax under this article shall keep such
records of its business and in such form as the city auditor may require,
and such records shall be preserved for a period of three years, except
that the city auditor may consent to their destruction within that
period or may require that they be kept longer.
[L.L. No. 2-1937, § 1(5)]
At the time of filing a return as required by this article,
each utility shall pay to the city auditor the tax imposed by this
section 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.
[L.L. No. 2-1937, § 1(6); L.L. No. 2-1939, § 2]
If any return filed pursuant to this section shall be insufficient
or unsatisfactory to the city auditor, and if a corrected or sufficient
return is not filed within 20 days after such return is required by
notice from the city auditor, or if no return is made for any period,
the city auditor 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 city auditor 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 city auditor
for a hearing, unless the city auditor of his own motion shall reduce
the tax. After such hearing, the city auditor shall give notice of
his decision to the person liable for the tax. The decision of the
city auditor may be reviewed by a proceeding under Civil Practice
Law and Rules art. 78 [§ 7801 et seq.], 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 renewed with interest and penalties thereon,
if any, shall be first deposited with the city auditor, 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.
[L.L. No. 2-1937, § 1(7)]
Any notice authorized or required under the provisions of this
article may be given by mailing such notice 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
section, 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 notice 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.
[L.L. No. 2-1937, § 1(8)]
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 city auditor, if satisfied that the
delay was excusable, may remit all or any portion of such penalty.
[L.L. No. 2-1937, § 1(9); L.L. No. 2-1939, § 2]
If, within one year from the payment of any tax or penalty,
the payer thereof shall make application for a refund thereof and
the city auditor or the court shall determine that such tax or penalty
or any portion thereof was erroneously or illegally collected, the
city auditor 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 city auditor. However, no refund shall be made of a tax or
penalty paid pursuant to a determination of the city auditor, as provided
in this article, unless the city auditor, after a hearing as provided
in this article, or of his own motion, shall have reduced the tax
or penalty or it shall have been established in a proceeding under
Civil Practice Law and Rules art. 78 [§ 7801 et seq.] 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 provided in this article, shall be deemed an application
for the revision of any tax or penalty complained of and the city
auditor may receive additional evidence with respect thereto. After
making this determination, the city auditor shall give notice thereof
to the person interested, and he shall be entitled to an order to
review such determination under Civil Practice Law and Rules art.
78 [§ 7801 et seq.], subject to the provisions contained
in this article relating to the granting of such an order.
[L.L. No. 2-1937, § 1(10)]
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.
[L.L. No. 2-1937, § 1(11)]
Whenever any person shall fail to pay any tax or penalty imposed
by this article, the city attorney shall, upon the request of the
city auditor, bring an action to enforce payment of the tax or penalty.
The proceeds of any judgment obtained in any such action shall be
paid to the city auditor. 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
Tax Law § 186-a is made a lien.
[L.L. No. 2-1937, § 1(12)]
In the administration of this article, the city auditor 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.
[L.L. No. 2-1937, § 1(13)]
(a)
Except in accordance with the proper judicial order as otherwise
provided by law, it shall be unlawful for the city auditor, or any
agent, clerk, or employee of the city to divulge or make known in
any manner the amount of gross income or gross operating income, or
any particulars set forth or discussed 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 in an action of 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 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 the returns
or of the facts shown thereby, as are pertinent to the action or proceeding,
and no more. Nothing in this section 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; 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 section, together
with any relevant information which in the opinion of the city auditor
may assist in the collection of such delinquent taxes; or the inspection
by the city attorney or other legal representatives of the city 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 he shall be dismissed from office and shall
be incapable of holding any office or employment in the city for a
period of five years thereafter.
(c)
Notwithstanding any provisions of this section, the city auditor
may exchange with the chief fiscal officer of any other city in the
state information contained in returns filed under this article, provided
such other city grants similar privileges to the city, and provided
such information is to be used for tax purposes only, and the city
auditor shall, upon request, furnish the state tax commission with
any information contained in such returns.
[L.L. No. 2-1937, § 1(14); L.L. No. 1-1942, § 2;
L.L. No. 1-1944, § 2; L.L. No. 1-1945, § 2; L.L.
No. 2-1946, § 2; L.L. No. 1-1947, § 2; L.L. No.
2-1948, § 2; L.L. No. 3-1949, § 2; L.L. No. 2-1950,
§ 2; L.L. No. 2-1955, § 2]
All taxes and penalties received by the city auditor for taxes
heretofore or hereafter imposed under this article shall be credited
and deposited by him in the general fund of the city.
