[Adopted 4-20-1998 by L.L. No. 1-1998]
As used in this article, the following terms shall have the
meanings indicated:
GROSS INCOME
Includes:
A.
In the case of a utility engaged in selling telephone or telephone
service, only receipts from local exchange service wholly consummated
within the Village.
B.
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village.
C.
In the case of any utility other than described in Subsections
A and
B hereof:
(1)
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, 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 material used, labor
or services or other costs, interest or discount paid or any other
expense whatsoever.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property growing out of the ownership
or use of or interest in such property.
(4)
Profits from the sale of personal property (other than property
of a kind which would properly be included in the inventory of a taxpayer
if on hand at the close of a period for which a return is made).
(5)
Receipts from interest, dividends and royalties derived from
sources within the Village (other than such as are received from a
corporation, a majority of whose voting stock is owned by the taxpaying
utilities), without any deduction therefrom for any expenses whatsoever
incurred in connection with the receipt thereof.
(6)
Profits from any transaction (except sales for resale and rentals)
with the Village 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, telephone or telegraphy
or in or by reason of the furnishing of such consumption or use of
gas, electric, steam, water, refrigerator, telephone or telegraph
service in the Village, including cash, credit and property of any
kind or nature, without 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 expense whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, 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, municipality,
public districts and corporations and associations organized and operated
exclusively for religious, charitable or educational purposes, no
part of the net earnings of which inures to the benefit of any private
shareholder or individual.
UTILITY
Includes:
A.
Every person subject to the supervision of the State Department
of Public Service, except:
(1)
Persons engaged in the business of operating or leasing sleeping
and parlor railroad cars.
(2)
Persons engaged in the business of operating or leasing railroads
other than street surface, rapid transit, subway and elevated railroads.
(3)
Omnibus corporations subject to suspension under Article 3-A
of the Public Service Law.
B.
Every person who furnishes gas, electric, steam, water, refrigerator,
telephone or telephone service by means of mains, pipes or wires,
regardless of whether such activities are the main business of such
persons or are only incidental thereto or whether use is made of the
public streets.
This article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village of Bath.
B. Not apply and the tax shall not be on any transaction originating
or consummated outside of the territorial limits of the Village of
Bath, notwithstanding that some acts are necessarily performed with
respect to such transaction within such limits.
C. Be in addition to any and all other taxes and fees imposed by any
other provisions of law.
D. Apply to all subject income received on and after June 1, 1998.
All revenues resulting from the imposition of the tax imposed
by 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.
The Village Treasurer shall be the chief enforcement officer
of this article and shall make and be responsible for all collections
hereunder. He or she shall also have the power and authority to make
any rules or regulations or directives, not inconsistent with law,
which, in his or her discretion, are reasonably necessary to facilitate
the administration of this article and the collection of the taxes
imposed hereby. Copies of all such rules and regulations and directives,
as may from time to time be promulgated, shall be sent by registered
mail to all utilities subject to this article which register as such
with the Village Treasurer. All such rules, regulations and directives
shall be deemed a portion of this article.
A. Time of filing. Every utility subject to a tax hereunder shall file,
on or before December 1 and June 1, a return for the six calendar
months preceding each return date, including any period for which
the tax imposed hereby or amendment thereof is effective. However,
any utility whose average gross income or gross average operating
income for the aforesaid six-month period is less than $3,000 may
file a return annually on May 1 for the 12 calendar months preceding
each return date, including any period for which the tax imposed hereby
or any amendment thereof is effective. Any utility, whether subject
to tax under this article or not, may be required by the Village Treasurer
to file an annual return.
B. Contents. Returns shall be filed with the Village Treasurer on a
form to be furnished by the treasurer for such purpose and shall show
thereof the gross income or gross operating income for a period covered
by the return and such other information, data or matter as the Village
Treasurer may require to be included therein. Every return shall have
annexed thereto a certification by the head of the utility making
the same or of the owner or of a copartner thereof or of a principal
corporate officer 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 hereby
for the period covered by such return. Such tax shall be due and payable
at the time of the filing of the return or, if a return is not filed
when due, on the first day when the return is required to be filed.
Any utility failing to file a return or a 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 Village Treasurer, if satisfied that
the delay was excusable, may remit all or any portion of such penalty.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Village Treasurer, he or she may require
at any time a further or supplemental return, which shall contain
any data that may be specified by him or her and, if a corrected or
sufficient return is not filed within 20 days after the same is required
by notice from the Treasurer, or if no return is made for any period,
the Village Treasurer shall determine the amount due from such information
as he or she is able to obtain and, if necessary, may estimate the
tax on the basis of external indices or otherwise. He or she shall
give notice of such determination to the utility liable for such tax.
Any final determination of the amount of any tax payable hereunder
shall be reviewable for error, illegality or unconstitutionality or
any other reason whatsoever by a proceeding under Article 78 of the
Civil Practice Law and Rules if the proceeding is commenced within
90 days after the giving of such notice of such final determination;
provided, however, that any such proceeding under Article 78 shall
not be instituted unless the amount of any tax sought to be reviewed,
with such interest and penalties thereon as may be provided by local
law, ordinance or resolution, shall be first deposited and an undertaking
filed 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.
Any notice authorized or required under the provisions of this
article may be given by mailing the same to the utility for which
it is intended, in a postpaid envelope addressed to such utility at
the address given by it in the last return filed by it 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 utility to which addressed. Any
period of time, which is determined according to the provisions of
this section by giving of notice, shall commence to run from the date
of mailing of such notice.
If within one year from the giving of notice of any determination
or assessment of any tax or penalty the person liable for the tax
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 charged, 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 if the Village Treasurer, as hereinbefore provided,
on his or her own motion, shall have reduced the tax or penalty or
it shall have been established in a proceeding in the manner provided
in the Civil Practice Law and Rules that such determination was erroneous
or illegal. 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 or her determination, the Village
Treasurer shall give notice thereof, to the person interested, and
he or she shall be entitled to commence a proceeding to review such
determination in accordance with the provisions of the following section
hereof.
Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the
refund thereof duly made to the Village Treasurer, and he or she shall
have made a determination denying such refund, such determination
shall be reviewable by a proceeding under Article 78 of the Civil
Practice Law and Rules; provided, however, that such proceeding is
instituted within 90 days after the giving of the notice of such denial,
that a final determination of tax due was not previously made and
that an undertaking is filed with the Village Treasurer 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.
Except in the case of a willfully false or fraudulent return
with the intent to evade the tax, no assessment or additional tax
shall be made with respect to taxes imposed under this article after
expiration of more than three years from the date of filing of a return;
provided, however, that where no return has been filed as required
hereby, the tax may be assessed at any time.
In addition to any other powers herein given, and in order to
further payment of the tax imposed hereby, the Village Treasurer shall
have the power to:
A. Prescribe the form of all reports and returns required to be made
hereunder.
B. Take testimony and proofs, under oath, with reference to any matter
hereby entrusted to him or her.
C. Subpoena and require the attendance of witnesses and the production
of books, papers, records and documents.
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 law and penalty imposed
by § 186-a of the Tax Law is made a lien.