[Adopted 4-16-1968, effective
6-1-1968]
[Amended 6-25-2019 by L.L. No. 3-2019]
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 hereafter commencing
June 1, 1968, and with June 1 in each year thereafter in which it
has a gross income in excess of $500, is hereby imposed upon every
utility doing business in the Village of South Nyack which is subject
to the supervision of the State Department of Public Service, except
motor carriers or brokers subject to such supervision under Transportation
Law § 240 et seq., and a tax equal to 1% of its gross operating
income is hereby imposed for each and every such twelve-month period
upon every other utility doing business in the Village of South Nyack
which has a gross operating income for each twelve-month period in
excess of $500, which taxes shall have application only within the
territorial limits of the Village of South Nyack 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 South Nyack, notwithstanding that some act
be necessarily performed with respect to such transaction within such
limits.
[Amended 6-25-2019 by L.L. No. 3-2019]
The terms used in this article shall be defined as provided
in Tax Law § 186-a and Village Law § 5-530.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Village Treasurer
of the Village of South Nyack may require, and such records shall
be preserved for a period of three years, except that the Village
Treasurer of the Village of South Nyack 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
each August 1, hereafter, a return for the 12 calendar months ending
on the preceding May 31, 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 for such purpose and shall
contain such other data, information or matter as the Village Treasurer
may require to be included 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 the Village Treasurer. 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 be 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 Village Treasurer of the Village of
South Nyack the tax imposed hereby 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 person, 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.
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 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. 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, in such amount and with such sureties as a Justice of the
Supreme Court shall approve, to the effect that if such proceeding
(order) be 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. 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 provision 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 in the last return filed by him hereunder, 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 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
payor 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 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 determination, 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, subject to the provisions hereinbefore contained relating to the
granting of such an order.
[Amended 6-25-2019 by L.L. No. 3-2019]
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.
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 of the Village of South Nyack, 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 of the Village
of South Nyack. 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
of the Village of South Nyack 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 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.
Except in accordance with the proper judicial orders or as otherwise
provided by law, it shall be unlawful for the Village Treasurer of
the Village of South Nyack or any agent, clerk or employee of the
Village of South Nyack 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 South Nyack 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 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
Village Treasurer of the Village of South Nyack may assist in the
collection of such delinquent taxes; or the inspection by the Village
Attorney or other legal representatives of the Village of South Nyack
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.
[Amended 6-25-2019 by L.L. No. 3-2019]
Any offense against the foregoing secrecy provisions (§ 295-13) shall be subject to a Type E penalty as set forth in § 1-15 of the Village Code; and if the offender is an officer, agent, Clerk or employee of the Village of South Nyack, he shall be dismissed from office, and shall be incapable of holding any office or employment in the Village of South Nyack for a period of five years thereafter.
Notwithstanding any provisions of this article, the Village
Treasurer of the Village of South Nyack may exchange with the chief
fiscal officer of any other village in the State of New York information
contained in returns filed under this article, provided such other
village grants similar privileges to the Village of South Nyack, and
provided such information is to be used for tax purposes only, and
the Village Treasurer of the Village of South Nyack shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Village Treasurer of
the Village of South Nyack for taxes hereafter imposed under this
article shall be credited and deposited by him in the general fund
of the Village.
This article shall take effect June 1, 1968.
