The short title of this article shall be the "Utility Tax."
Pursuant to the authority granted by Article 5, § 5-530
of the Village Law of the State of New York, from and after June 1,
1996, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility doing business
in the Village of Livonia 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 such supervision under Article 3-B of the Public Service Law.
B. A tax equal to 1% of the gross operating income of every other utility
doing business in the Village of Livonia which has an annual gross
operating income in excess of $500.
[Amended 10-22-2017 by L.L. No. 1-2017]
The terms used in this article shall have the definitions as
set forth in Tax Law § 186-a.
This Article and the tax imposed hereby shall:
A. Apply only within the territorial limits of the Village of Livonia.
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
Livonia, 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 June 1, 1996.
All revenues resulting from the imposition of the tax imposed
by this article shall be paid into the Treasury of the Village of
Livonia 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 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.
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
or part thereof 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.
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
therein 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. The Village Treasurer,
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 Treasurer, and the Treasurer may require any utility doing
business in the Village of Livonia to file an annual return, which
shall contain any data specified by him.
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 person 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,
except the first month after such return was required to be filed
or such tax became due, but the Village Treasurer, for good cause
shown, may extend the time for filing any return and, satisfied that
the delay was excusable, may remit all or a portion of the penalty
imposed by the foregoing provisions of this section.
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.
A. 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.
B. 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 act shall
reduce the same. After such hearing, the Village Treasurer shall give
notice of his decision to the person liable for the tax.
Any final determination by the Village Treasurer of the amount of any tax payable hereunder as set forth in §
136-7 shall be reviewable by a proceeding under Article 78 of the Civil Practice Law and Rules, if the proceeding is commenced within four months after the giving of such notice of such final determination; provided, however, that any such proceeding under 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 or resolution, shall be first deposited with the Village Treasurer or 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 person for whom it
is intended, in a postpaid envelope, addressed to such person 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 person to which 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 payment of any tax or penalty, the
person liable for the tax shall make application for a refund thereof,
and the Village Treasurer shall determine that such tax or penalty
or any portion thereof was erroneously 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 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 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 provision 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 four months 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, 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.
D. Make such reasonable rules and regulations not inconsistent with
law as may be necessary for the exercise of his powers and performance
of his duties under this article.
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 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 § 186-a
of the Tax Law is made a lien.
Every utility subject to tax under this article shall keep such
records of its business 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.