[Adopted 8-28-1972 by L.L. No. 1-1972 (Ch. 91, Art. I, of the 1980 Code)]
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
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 from and after the first day of October 1, 1972, is hereby
imposed upon every utility doing business in the Village of Manchester
which is subject to the supervision of the State Department of Public
Service which has a gross income for the 12 months ending May 31 in
excess of $500, except motor carriers or brokers subject to such supervision
under the Transportation Law, § 240 et seq., and a tax equal
to 1% of its gross operating income from and after the first day of
May 1950 is hereby imposed upon every other utility doing business
in the Village of Manchester which 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 Manchester
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 the territorial
limits of the Village of Manchester, 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 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 of Manchester, 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 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 cost of the period for which a return is
made); also receipts from interests, dividends and royalties derived
from sources within the Village of Manchester 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 Manchester whatsoever; provided, however,
that the words "gross income" shall include, 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 Manchester
and in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Manchester.
GROSS OPERATING INCOME
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, refrigerator, telephone or telegraph
service in the Village of Manchester, 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
companies or associations, partnerships and limited-liability companies,
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, municipalities political and civil subdivisions
of the state or municipality, and public districts (provided, however,
that with respect to gas, electricity and gas or electric service,
including the sale of the transportation, transmission or distribution
of gas or electricity, such municipalities, political and civil subdivisions
and public districts shall be excluded from the definition of "person"
if they own and operate facilities which are used to generate or distribute
electricity or distribute gas and they distribute and sell such gas
or electricity solely at retail, solely within their respective jurisdiction;
or provided, further, with respect to the sale of electricity or the
transportation, transmission or distribution of electricity, a municipality
shall be excluded from the definition of "person" if it sells electricity
at retail where all such electricity (excluding temporary substitution
power during outages or periods of reduced output) has been generated
solely by and purchased solely from the state or a public authority
of the state); corporations and associations which are 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, and which are described in paragraph
four of Subdivision (a) of § 1116 of this Chapter 60 of
the Tax Law where such organization resells such gas or electricity
or gas or electric service as landlord to its tenants in buildings
owned by such organization; and excepting a corporation organized
and operated exclusively for the purpose of leasing from a city in
this state a waterworks system designed to supply water at cost to
users thereof for discharge, either before or after industrial use,
into a river within such city in order to improve the flow and condition
of such river and thereby to provide a means to relieve such river
from pollution.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
UTILITY
Includes every person (including every provider of telecommunication
services) subject to the supervision 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 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 whether use is made of the
public streets.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
Every utility subject to tax under this article shall keep such
form as the Treasurer of the Village of Manchester may require, and
such records shall be preserved for a period of three years, except
that the Treasurer of the Village of Manchester may consent to their
destruction within that period or may require that they be kept longer.
Every utility subject to tax hereunder shall file annually,
on or before the 25th day of March, a return for 12 calendar months
preceding such return date or any portion thereof for which the tax
imposed hereby is effective; provided, however, that in lieu of the
annual return required by the foregoing provisions, any utility may
file quarterly, on or before September 25, December 25, March 25 and
June 25, a return for the three calendar months preceding each such
return date and, in the case of the first such return, for all preceding
calendar months during which the tax imposed hereby was effective.
Every return shall state the gross income or gross operating income
for the period covered thereby. Returns shall be filed with the Treasurer
of the Village of Manchester 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 therein. The Treasurer of the Village
of Manchester, 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 Manchester to file an annual return
which shall contain any data specified by him, 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 a co-partner 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 filing a return as required by this article,
each utility shall pay to the Treasurer of the Village of Manchester
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.
A. In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Treasurer of the Village of Manchester 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 Treasurer of the Village of Manchester 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 indexes
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 Treasurer of the Village of Manchester for a hearing or unless
the Treasurer of the Village of Manchester of his own motion shall
reduce the same. After such hearing, the Treasurer of the Village
of Manchester 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 Treasurer
of the Village of Manchester and an undertaking filed with him 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 applicant 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.
B. Except in the case of a 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 article, the tax may be assessed at
any time.
Any notice authorized or required under the provisions of this
article 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 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 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 Treasurer of the Village of Manchester, 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
If within one year from the payment of any tax or penalty the
payer thereof shall make application for a refund thereof and the
Treasurer of the Village of Manchester or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the Treasurer of the Village of Manchester 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 Treasurer
of the Village of Manchester. However, no refund shall be made of
a tax or penalty paid pursuant to a determination of the Treasurer
of the Village of Manchester as hereinbefore provided unless the Treasurer
of the Village of Manchester, after a hearing as hereinbefore provided,
or of his own motion, shall have reduced the tax or penalty or it
shall have been established in a proceeding under Chapter 308 of the
Laws of 1962 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 hereinabove provided, shall be
deemed an application for the revision of any tax or penalty complained
of, and the Treasurer of the Village of Manchester may receive additional
evidence with respect thereto. After making his determination, the
Treasurer of the Village of Manchester shall give notice thereof to
the person in interest, and he shall be entitled to an order to review
such determination under said Chapter 308, subject to the provision
hereinbefore contained relating to the granting of such an order.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
The tax imposed by this article shall be charged against and
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. Upon request, the utility
shall furnish a statement of the amount of tax imposed by this article
to its customers.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
Whenever any person shall fail to pay any tax or penalty imposed
by this article, the Village Attorney shall, upon the request of the
Treasurer of the Village of Manchester, bring an action to enforce
payment of the same. The proceeds of any judgment obtained in any
such action shall be paid to the Treasurer of the Village of Manchester.
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 Treasurer of the
Village of Manchester shall have 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 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 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 Treasurer of the Village of Manchester
or any agent, Clerk or employee of the Village of Manchester 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 Manchester in an action or proceeding
under the provisions of this article or on behalf of the State Tax
Commission in 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 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 admit 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 duly authorized representative of a copy of any
return filed by him; 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 Treasurer of the
Village of Manchester may assist in the collection of such delinquent
taxes; or the inspection by the Village Attorney or other legal representatives
of the Village of Manchester 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 provisions shall be punishable
by a fine not exceeding $1,000 or by imprisonment not exceeding one
year, or both, and if the offender be an officer, agent, Clerk or
employee of the Village of Manchester, he shall be dismissed from
office and shall be incapable of holding any office or employment
in the Village of Manchester for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the Treasurer of
the Village of Manchester 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 article, provided that such
city or other Village grants similar privileges to the Village of
Manchester, and provided that such information is to be used for tax
purposes only, and the Treasurer of the Village of Manchester shall,
upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Treasurer of the Village
of Manchester under 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.