[Adopted 6-14-1971 by L.L. No. 1-1971 (Ch. 139, Art. I, of
the 1976 Code)]
Pursuant to the authority granted by § 6-640 of the
Village Law[1] of the State of New York, a tax equal to 1% of its gross
income from and after the first day of July, 1971, is hereby imposed
upon every utility doing business in the Village of Lancaster, New
York, which utility is subject to the supervision of the State Department
of Public Service and which has a gross income, for 12 months, ending
May 31, in excess of $500, except motor carriers or brokers subject
to such supervision under Article 3-b of the Public Service Law,[2] and a tax equal to 1% of its gross operating income from
and after the first day of July, 1971, is hereby imposed upon every
other utility doing business in the Village of Lancaster, New York,
which utility 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 Village of Lancaster, New York,
and shall be in addition to any and all other taxes and fees imposed
by any other provision of law. Such taxes shall not be imposed on
any transaction originating or consummated outside of the territorial
limits of the Village of Lancaster, New York, notwithstanding that
some act be necessarily performed with respect to such transaction
within such limits.
As used in this chapter, the following terms shall have the
meanings indicated:
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 the 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 of Lancaster, New York, 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 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 Village of Lancaster,
New York, 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 Village of Lancaster, New
York, whatsoever; provided, however, that the words "gross income"
shall include, in the case of a utility engaged in selling telephony
or telephone service, only service wholly consummated within the Village
of Lancaster, New York, and in the case of a utility engaged in selling
telephony or telephone service, only receipts from transactions wholly
consummated within the Village of Lancaster, New York.
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, refrigeration, telephone or telegraph
service in the Village of Lancaster, New York, 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, 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 and
public districts.
Includes every person subject to the supervision of the State
Department of Public Service, except persons engaged in the business
of operating or leasing sleeping and parlor railroad cars or 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 or 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 regardless
of whether or not use is made of the public streets.
Every utility subject to tax under this chapter shall keep such
records of its business and in such form as the Village Treasurer
may require or as the Village Board may require; and such records
shall be preserved for a period of three years, except that the Village
Treasurer or the Village Board 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. Every return shall state the gross income or gross operating
income for the period covered thereby. Returns shall be filed with
the Village Treasurer on a form to be furnished by him for such purpose
and shall contain such other data, information or matter as he may
require to be included of the amount of tax due, plus 1% of such tax
for each month of delay or fraction thereof, except the first month,
after such return was required to be filed or such tax became due;
but the Village Treasurer, for cause shown, may extend the time for
filing any return and, if satisfied that the delay was excusable,
may remit all or any portion of the penalty fixed by the foregoing
provisions of this section.
If, within one year from the payment of any tax or penalty,
the payer thereof 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
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 chapter.
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 shall give notice thereof to the person
interested, and he shall be entitled to an order to review such determination
under said Article 78 of the Civil Practice Law and Rules of the State
of New York, subject to the provision hereinbefore contained relating
to the granting of such an order.
The tax imposed by this chapter 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.
Whenever any person shall fail to pay any tax or penalty imposed
by this chapter, the Village Attorney shall, upon the request of the
Village Board, 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
§ 108-6(a) of the Tax Law[1] is made a lien.
[1]
Editor's Note: This section was repealed by L. 1958, c. 959,
effective 10-1-1959. See § 1614 of Real Property Tax Law.
In the administration of this chapter, the Village Treasurer
shall have the 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 the power 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 chapter; and to subpoena and require the attendance of
witnesses and the production of books, papers and documents.
A.
Except in accordance with proper judicial order or as otherwise provided
by law, it shall be unlawful for the Village Treasurer or any agent,
Clerk or employee of the Village of Lancaster, New York to divulge
or make known in any manner the amount of gross income or gross operating
income or any particulars set forth or disclosed therein. The Village
Treasurer, 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 him; and he may require any utility
doing business in the Village of Lancaster, New York, to file an annual
return which shall contain any data specified by him regardless of
whether the utility is subject to tax under this law. Every return
shall have annexed thereto an affidavit of the head of the utility
making the same, or of the owner or of a copartner thereof or of a
principal officer of the corporation, if such business is conducted
by a corporation, to the effect that the statements contained therein
are true.
At the time of the filing of a return as required by this chapter,
each utility shall pay to the Village of Lancaster the tax imposed
by this chapter 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 chapter shall be insufficient
or unsatisfactory to the Village Treasurer, 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 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. He 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 Village Treasurer for a hearing
or unless the Village treasurer, of his own motion, shall reduce the
same. After such hearing, the Village Treasurer shall give notice
of his decision to the person liable for the tax. Such decision may
be reviewed by a proceeding under Article 78 of the Civil Practice
Law and Rules of the State of New York if application therefor is
made within 90 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 reviewed with interest and penalties thereon,
if any, shall be first deposited with the Village Treasurer and an
undertaking filed with him, in 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 application, 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.
Except in the case of willfully false or fraudulent return with intent
to evade the tax, no assessment of additional tax shall be made after
the expiration of more than three years from the date of the filing
of a return: provided, however, that where no return has been filed
as required by this chapter, the tax may be assessed at any time.
Any notice authorized or required under the provisions of this
chapter may be given by mailing the same to the persons 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 chapter
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 chapter 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 failing
to pay any tax or any portion thereof within the time required by
this chapter shall be subject to a penalty of 5% in any return under
this chapter. 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 Village of Lancaster, New York, in an action or proceeding
under the provisions of this chapter, 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 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 chapter 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, as much of said returns or of the facts shown thereby
as are pertinent to the action or proceeding, and no more.
A.
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 or 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 chapter, together with any relevant information
which, in the opinion of the Village Treasurer, may assist in the
collection of such delinquent taxes; or the inspection by the Village
Attorney or other legal representative of the Village of Lancaster,
New York, of the return of any person who shall bring action to set
aside or review the tax based thereof or against whom an action has
been instituted in accordance with the provisions of this chapter.
B.
Any offense against the foregoing secrecy provisions shall be punishable
by a fine not exceeding $1,000 or by imprisonment for not exceeding
one year, or both; and if the offender be an officer, agent, Clerk
or employee of the Village of Lancaster, New York, he shall be dismissed
from office and shall be incapable of holding any office or employment
for the Village of Lancaster, New York, for a period of five years
thereafter.
C.
Notwithstanding any provisions of this chapter, the Village Treasurer
may exchange with the chief fiscal officer of any city or any other
Village in the State of New York information contained in returns
filed under this chapter, provided such city or Village grants similar
privileges to the Village of Lancaster, New York, and provided such
information is to be used for tax purposes only; and the Village Treasurer
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Village Treasurer under
this chapter shall be paid into the treasury of the Village of Lancaster,
New York, and shall be credited to and deposited in the general fund
of the Village.
