[HISTORY: Adopted by the Board of Trustees of the Village
of the Branch as indicated in article histories. Amendments noted
where applicable.]
[Adopted as Ch. 76, Art. I, of the 1973 Code]
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Pursuant to the authority granted by the Village Law of the
State of New York, there is hereby imposed a tax equal to 1% of the
gross income of every utility doing business in the Incorporated Village
of the Branch which has an annual gross income in excess of $500,
except motor carriers or brokers subject to such supervision under
the Transportation Law § 240 et seq.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The terms used in this article shall be defined as provided
in § 186-a of the Tax Law and Subdivision 4 of § 5-530
of Village Law.
This article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Incorporated Village
of the Branch.
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
the Branch, notwithstanding that some act 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.
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 shall also have the power and authority to make any
rules or regulations or directives, not inconsistent with law, which,
in his 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 July 1 and January 1 a return for the six calendar months
preceding each return date, including any period for which the tax
imposed hereby or any amendment hereof is effective. However, any
utility whose average gross income or gross operating income for the
aforesaid six months' period is less than three $3,000 may file
a return annually on October 1 for the 12 calendar months preceding
each return date, including any period for which the tax imposed hereby
or any amendment hereof 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 him for such purpose and such return shall
show thereon the gross income or gross operating income for the 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 return, or by the owner or a copartner thereof or by 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 last day on which 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The tax imposed by this article shall be charged against and
be paid by the utility and may 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.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Village Treasurer, he may require at any
time a further or supplemental return which shall contain any data
that may be specified by him, 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 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 utility liable for such tax. Such determination shall finally
and irrevocably fix such tax, unless the utility against which it
is assessed shall, within one year after the giving of notice of such
determination, apply to him for a hearing, or unless the Village Treasurer,
of his own motion, shall reduce the same. After such hearing he shall
give notice of his decision 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 notice of such final determination; provided,
however, that any such proceeding under said 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 for 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 the 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 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 if 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 a notice thereof given to the person interested, and
he 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 shall have been duly made to the Village Treasurer
and he 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 of additional tax
shall be made with respect to taxes imposed under this article after
the 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 the Village Treasurer
and in order to further ensure payment of the tax imposed hereby,
he shall have the power to:
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.
[Added 3-14-1995 by L.L. No. 1-1995 (Ch. 76, Art. III,
of the 1973 Code)]
The intent of the Board of Trustees of the Village of the Branch
is to implement § 1402, Subdivision 3(a), of the Real Property
Tax Law providing for the voluntary termination of the Village's
status as an assessing unit. It is also the intent of this article
to abolish the position of Assessor and to terminate any and all responsibility
as provided by law for the review of the assessments of real property
located within the Village of the Branch.
On or after the effective date of this article, the Village
of the Branch shall cease to be an assessing unit.
The position of Assessor in the Village of the Branch is hereby
abolished.
The Board of Assessment Review in the village of the Branch
is hereby abolished.
On or after the effective date of this article, taxes in the
Village of the Branch shall be levied on a copy of the applicable
part of the assessment roll of the Town of Smithtown with the taxable
status date of such town controlling for Village purposes.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Within five days of the effective date of this article, the
Board of Trustees of the Village of the Branch shall file a copy of
such article with the Clerk and Assessor of the Town of Smithtown
and with the Commissioner of Taxation and Finance.
This article shall take effect immediately upon filing with
the Secretary of State; provided, however, that such article is subject
to a permissive referendum, and the Village Clerk shall forthwith
proceed to notice such fact and conduct such referendum if required
by petition.[1]
[1]
Editor's Note: No petition for referendum was received
and L.L. No. 1-1995 was filed as of 4-2-1995.
