[Adopted 12-14-1993 by L.L. No. 3-1993]
This article shall be known and may be cited as the "Gross Operating
Income Tax Law of the Village of Wesley Hills."
Pursuant to the authority granted by § 5-530 of the
Village Law of the State of New York, from on 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 territorial limits of the Village of Wesley Hills which is
subject to the supervision of the New York State Public Service Commission
and which has an annual gross income in excess of $500, except motor
carriers or brokers subject to the provisions of § 240 et
seq. of the Transportation Law.
[Amended 12-2-2014 by L.L. No. 5-2014]
B.
A tax equal to 1% of the gross operating income of every other utility
doing business in the territorial limits of the Village of Wesley
Hills which has an annual gross operating income in excess of $500.
As used in this article, the following terms shall have the
meanings indicated:
Includes:
In the case of a utility engaged in selling telephony or telephone
service, only receipts from local exchange service wholly consummated
within the Village.
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village.
In the case of any utility other than described in Subsection A of this definition, shall include:
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 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 deductions 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;
Profits from the sale of securities;
Profits from the sale of real property growing out of the ownership
or use of or interest in such property;
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 the period for which a return is made);
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
utility), without any deduction therefrom for any expenses whatsoever
incurred in connection with the receipts thereof;
Profits from any transaction (except sales for resale and rentals)
within the Village whatsoever.
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, cable television, telephony
or telegraphy, or in or by reason of the furnishing for such consumption
or use of gas, electric, steam, water, refrigeration, cable television,
telephone or telegraph service in the Village, including cash, credits
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.
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, 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 to the benefit of any
private shareholder or individual.
Includes:
Every person (including every provider of telecommunication
services) subject to the supervision of the New York State Public
Service Commission, except:
[Amended 12-2-2014 by L.L. No. 5-2014]
Persons engaged in the business of operating or leasing sleeping
and parlor railroad cars; and
Persons engaged in the business of operating or leasing railroads
other than street surface, rapid transit, subway and elevated railroads;
and
Omnibus corporations subject to the provisions of Article 5
of the Transportation Law.
Every person who sells gas, electricity, steam, water, refrigeration,
cable television, telephony or telegraphy delivered through mains,
pipes, or wires, whether or not such person is subject to the supervision
of the New York State Public Service Commission or any other regulatory
agency.
Every person who furnishes gas, electric, steam, water, refrigerator,
cable television, 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.
The Village of Wesley Hills.
This article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Village of Wesley
Hills;
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
Wesley Hills, 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
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 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 part of
this article.
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 unless the Village Treasurer directs otherwise.
A.
Time of filing. Every utility subject to a tax hereunder shall file,
on or before December 24 and June 24, 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-month period is less than $3,000 may file a return
annually on or before December 24 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 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 chief executive officer of
the utility making the same or of the owner of 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 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 12-2-2014 by L.L. No. 5-2014]
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. Upon request, the
utility shall furnish a statement of the amount of the tax imposed
by this article to its customers.
In the event that 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 is available to him and, if necessary, may estimate the tax on
the basis of external indices or otherwise. He shall give notification
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, legality, or unconstitutionality or
any other reason whatsoever by a proceeding under Article 78 of the
Civil Practice Law and Rules commenced within 90 days after the giving
of notice of such final determination; provided, however, that any
such proceeding shall not be instituted unless the amount of any tax
sought to be reviewed, with such interest and penalties thereon as
may be provided, 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 to the Village as a result of the prosecution of
such proceeding.
Any notice authorized or required pursuant to 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
given for compliance with such 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 legally 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 hereinabove 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 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 respect thereto. After making his determination, the Village Treasurer shall give notice thereof to the person interested, and he shall be entitled to commence a proceeding to review such determination, in accordance with the provisions of § 200-51.
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 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 to
the Village as a result of 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
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 insure 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 imposed by § 186-a
of the Tax Law is made a lien.
This article shall take effect on January 1, 1994.
