[Adopted 3-12-2013 by L.L. No. 2-2013]
Pursuant to the authority granted by § 5-530 of the
Village Law of the State of New York, a tax equal to 1% of its gross
income for each and every twelve-month period commencing from April
1, 2013, and thereafter is hereby imposed on every utility doing business
in the Village of Endicott which is subject to the supervision of
the State Department of Public Service, except motor carriers or brokers
subject to such supervision under Article 9 of the Transportation
Law, which has a gross income for 12 months ending May 31 in excess
of $500, and a tax equal to 1% of its gross operating income is hereby
imposed for the same period upon every other utility doing business
in the Village of Endicott which has a gross operating income for
12 months ending May 31 in excess of $500, which taxes shall have
application only within the territorial limits of the Village of Endicott
and shall be in addition to any and all other taxes and fees imposed
by any other provision of law for the same period. Such taxes shall
not be imposed on any transaction originating or consummated outside
of the territorial limits of the Village of Endicott, 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
Includes receipts received in or by any reason of 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 of Endicott, 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
profits 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 Endicott 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 Endicott whatsoever. Notwithstanding any other
provision of this section or of § 186-a of the Tax Law,
the words "gross income" shall include:
A.
In the case of a utility engaged in selling telephony or telephone
service, only receipts from local exchange service wholly consummated
within the Village of Endicott.
B.
In the case of a utility selling telegraphy or telegraph service,
only receipts from transactions wholly consummated within the Village
of Endicott.
C.
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 Endicott, 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.
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, municipalities,
political and civil subdivisions of the state or municipality and
public districts.
UTILITY
Includes every person subject to the supervision of any division
of the State Department of Public Service, except persons engaged
in the business of operating on the public highways of this state
one or more omnibuses having a seating capacity of more than seven
persons and 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 Village Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Village Treasurer may consent to their destruction
within that period or may require that they be kept longer.
Every utility subject to the tax hereunder is subject to the
following filing requirements:
A. Every utility subject to tax hereunder shall file annually on or
before March 25, June 25, September 25 and December 25 a return for
the three calendar months preceding 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 Village Treasurer on a form to be
furnished by him or her for such purpose and shall contain such other
data, information or matter as the Village Treasurer may require to
be included therein.
B. Every utility subject to tax hereunder shall file annually, on or
before the 25th day of February, a return for 12 calendar months ending
December 31 preceding such return date or any portion thereof for
which the tax imposed hereby is effective, which return shall state
the gross income or gross operating income for the period covered.
Returns shall be filed with the Village Treasurer on a form to be
furnished by him or her for such purpose and shall contain such other
data, information 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 officer of the corporation, if
such business is conducted by a corporation, to the effect that the
statements contained therein are true.
C. 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 the Village Treasurer. The
Village Treasurer may require any utility doing business within the
confines of the Village of Endicott to file an annual return, which
shall contain any data specified by him or her, regardless of whether
the utility is subject to tax under this article. Every return shall
have annexed thereto an affidavit of the head of the utility making
the same or of the owner or of the copartner thereof or of the principal
officer of the corporation 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 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 Village Treasurer and if a corrected or sufficient
return is not filed within 20 days after the same is required by notice
from the Village Treasurer or if no return is made for any period,
from such information as he or she is able to obtain, and if necessary,
the Village Treasurer may estimate the tax on the basis of external
indices or otherwise. The Village Treasurer 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 or her own motion, shall reduce
the same. After such hearing, the Village Treasurer shall give notice
of his or her decision to the person liable for the tax. The decision
of the Village Treasurer 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 30 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 or her, in such amount
and with such sureties as a Justice of the Supreme Court shall approve
to the effect that if such order is dismissed or the tax confirmed,
the applicant for the order will pay all costs and charges which may
accrue in the prosecution of such proceeding, or at the option of
the applicant, 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.
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 or her in the last return filed by him or her
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 a 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 which the 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 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 or her 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 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 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 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 cost of such utility.
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.
In the administration of this article, the Village Treasurer
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary for the exercise of his
or her powers and the performance of his or her 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 or her 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 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 Endicott 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 Village of Endicott in any 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 omit 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 or her duly
authorized representative of a copy of any return filed by him or
her, 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 Village Treasurer, may assist in the
collection of such delinquent taxes or the inspection by the Village
Attorney or other legal representatives of the Village of Endicott
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 provision shall be punishable
by a fine not exceeding $1,000 or by imprisonment not exceeding six
months, or both, and if the offender is an officer, agent, clerk or
employee of the Village of Endicott, he or she shall be dismissed
from office and shall be incapable of holding any office or employment
in the Village of Endicott for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the Village Treasurer
may exchange with the chief fiscal officer of any city or any first
class village in the State of New York information contained in returns
filed under this article, provided that such other city or village
grants similar privileges to the Village of Endicott, and provided
that 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 for
taxes heretofore or hereafter imposed under this article shall be
credited and deposited by him or her in the general fund of the Village.