[Adopted 11-14-2011 by L.L. No. 2-2011]
This article shall be known as "Gross Utilities Tax Law of the
Village of Chester."
The Board of Trustees of the Village of Chester realizes that
the real estate tax burden on its residents is ever increasing due
to the imposition of taxes by all levels of government in Orange County.
In an effort to relieve some of that burden, the Board believes that
the tax base of the Village must be broadened and that the adoption
of this article will broaden its tax base.
Pursuant to the authority granted by Article 5, § 5-530,
of the Village Law of the State of New York, from and after the effective
date of this article, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility doing business
in the Incorporated Village of Chester which is subject to the supervision
of the New York State Department of Public Service and which has an
annual gross income in excess of $500 except motor carriers or brokers
subject to the provisions of the Transportation Law.
B. A tax equal to 1% of the gross operating income of every other utility
doing business in the incorporated Village of Chester which has an
annual gross operating income in excess of $500.
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, includes:
(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 for 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
expenses 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 from 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, 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, 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, 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 or benefits any private
shareholder or individual.
UTILITY
Includes:
A.
Every person subject to the supervision of the State Department
of Public Service, except:
(1)
Person 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.
B.
Every person who 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
persons or are only incidental thereto, or of 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 Chester.
B. Not apply and the tax shall not be imposed on any transaction originating
or consummated outside of the territorial limits of the Village of
Chester, notwithstanding that some acts be 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 the effective date
of this article.
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 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.
Every utility subject to the tax pursuant to this article shall
keep such records of its business in such form as the Village Treasurer
may require such records shall be preserved for a period of three
years unless the Village Treasurer otherwise directs.
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 months 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 law 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
thereon 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 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 law, shall be subject to a penalty of 5% of the amount of
tax due, plus 1% of such amount 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 this 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 with
the Village Treasurer 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 it is
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 any 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.
The invalidity of any provision of this article shall not affect
the validity of any other provision of this article which can be given
effect without such invalid provision.
This article shall take effect immediately upon filing in the
office of the Secretary of State.