[Adopted 12-5-2011 by L.L. No. 15-2011]
By § 20-b of the General City Laws, as added by Chapter
321 of the Laws of 1937, and as amended by Chapter 245 of the Laws
of 1942, cities are authorized to enact local laws imposing a tax
such as was imposed by § 186-a of the Tax Law. Pursuant
to such authority, this article is modeled upon said § 186-a.
It is intended thereby and likewise by this article, enacted pursuant
to the above-mentioned authority, to impose a tax on utility services,
whether rendered by utilities in the strict sense or not, and whether
such services are in the main or incidental part of their business
and regardless of whether the public streets are used in any manner.
Accordingly, such a utility is defined for the purposes of the tax
as including every person subject to the supervision of the Department
of Public Service and every other person furnishing utility services.
It is intended to include persons and corporations which are directly
in competition with ordinary utilities, such as landlords and submeterers,
who buy their services from other utilities and in turn resell such
services. For that reason, the tax is imposed in receipts from sales
to ultimate consumers. Receipts from the sale of such utility services
to submeterers are not taxed, but receipts of submeterers from their
own customers are intended to be taxed. Any other construction would
result in a complete exemption from taxation of utility services sold
or furnished by this particular method. Furthermore, it is believed
that submeterers have common characteristics that distinguish them
from other businesses and justify the conclusion that the method,
character and nature of their business, in this aspect, is substantially
similar to the business of an ordinary utility and requires similar
treatment for the purposes of the tax. This conclusion is strongly
fortified by the fact that such landlords and submeterers are in direct
competition with ordinary utilities and hence should bear similar
tax burdens in order to avoid inequality of treatment.
Pursuant to the authority granted by § 20-b of the
General City Law of the State of New York, a tax equal to 1% of its
gross income from and after July 1, 1937, is hereby imposed upon every
utility doing business in the City of Beacon 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 Transportation
Law § 240 et seq., and a tax equal to 1% of its gross operating
income is hereby imposed from and after July 1, 1937, upon every other
utility doing business in the City of Beacon 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 City
of Beacon and shall be in addition to any and all other taxes and
fees imposed by any other provisions of law for the same period. Such
taxes shall not be imposed on any transactions originating or consummated
outside of the territorial limits of the City of Beacon, notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
As used in this article, the following terms shall have the
meanings indicated:
GROSS INCOME
Means and 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 City of Beacon, 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 of Beacon, 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 of Beacon whatsoever.
GROSS OPERATING INCOME
Means and 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 City of Beacon, 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
Means persons, corporations, companies, associations, joint-stock
associations, co-partnerships, 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, municipalities,
political and civil subdivisions of the state or municipality, and
public districts.
UTILITY
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, and 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.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Director of Finance
may require, and such records shall be preserved for a period of three
years, except that the Director of Finance may consent to their destruction
within that period or may require that they be kept longer.
Every utility subject to tax hereunder 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 or by any amendment hereof
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 Director of Finance on a form to be
furnished by him for such purpose and shall contain such other data,
information or matter as the Director of Finance may require to be
included therein. Notwithstanding the foregoing provisions of this
section, any utility whose average gross income or average gross operating
income, as the case may be, for the aforesaid three-month periods
is less than $1,500, may file a return annually on June 25, for the
12 preceding calendar months, and the Director of Finance may require
any utility doing business in the City of Beacon to file an annual
return which shall contain any data specified by the Director of Finance
regardless of whether the utility is subject to tax under this article.
The Director of Finance 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 the Director of Finance.
Every return shall have annexed thereto an affidavit of the head of
the utility making the same, or of the copartner thereof, or of a
principal officer of the corporation, if such business be conducted
by a corporation, to the effect that statements contained therein
are true.
At the time of filing a return as required by this article,
each utility shall pay to the Director of Finance 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.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Director of Finance, and if a corrected or
sufficient return is not filed within 20 days after the same is required
by notice from the Director of Finance, or if no return is made for
any period, the Director of Finance 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 Director of Finance 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 Director of Finance for a hearing, or unless the Director
of Finance of his own motion shall reduce the same. After such hearing,
the Director of Finance shall give notice of his decision to the person
liable for the tax. Any final determination by the Director of Finance
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 application is made to the Supreme Court within 30 after the giving
of a notice of such final determination; provided, however, that any
such 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 such interest and penalties thereon, as may be provided
for by local law or regulation, 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 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 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,
excepting the first month, after such return was required to be filed
or such tax became due; but the Director of Finance, if satisfied
that the delay was excusable may remit all or any portion of such
penalty.
If, within one year from the payment of any tax or penalty,
the payer thereof shall make application for a refund thereof and
the Director of Finance or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected,
the Director of Finance 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 Director of Finance. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
Director of Finance as hereinbefore provided unless the Director of
Finance, 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 Director of Finance may receive additional evidence
with respect thereto. After making this determination, the Director
of Finance 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 provisions hereinbefore contained
relating to the granting of such an order.
The tax imposed by this article shall be charged 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 City Attorney shall, upon the request of the
Director of Finance, bring an action to enforce payment of the same.
The proceeds of any judgment obtained in any such action shall be
paid to the Director of Finance. 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 Director of Finance
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.
A. Except in accordance with the proper judicial order as otherwise
provided by law, it shall be unlawful for the Director of Finance,
or any agent, Clerk or employee of the City of Beacon 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 City of Beacon in an action or 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, nor 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 Director of Finance may assist in the
collection of such delinquent taxes; or the inspection by the City
Attorney or other legal representatives of the City of Beacon 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 of Beacon he shall be dismissed from office,
and shall be incapable of holding any office or employment in the
City of Beacon for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the Director of Finance
may exchange with the chief fiscal officer of any other city in the
State of New York information contained in returns filed under this
article, provided that such other city grants similar privileges to
the City of Beacon, and provided that such information is to be used
for tax purposes only, and the Director of Finance shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Director of Finance
under this article shall be credited to and deposited in the general
fund of the City of Beacon.