[Adopted 3-30-2017 by L.L. No. 3-2017]
Pursuant to the authority granted by § 20-b of the
General City Law of the State of New York, a tax equal to 1% of its
gross income from and after July 1, 1937, is hereby imposed upon every
utility doing business in the City of Watervliet 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
Article 3-B of the Public Service Law, and a tax equal to 1% of its
gross operating income is hereby imposed from and after July 1, 1937,
upon every other utility doing business in the City of Watervliet
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 City of Watervliet and shall be in addition
to any and all other taxes and fees imposed by any other provisions
of law for the same period. Such taxes shall not be imposed on any
transactions originating or consummated outside of the territorial
limits of the City of Watervliet, 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:
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 City of Watervliet, 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
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 close of the period for which a return is made);
also receipts from interest, dividends, and royalties, derived from
sources within the City of Watervliet 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 City of Watervliet 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, 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 City of Watervliet, 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.
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.
Includes every person subject to the supervision of either
Division of State Department of Public Service, except 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 Director of Finance
may require, and such records shall be preserved for a period of three
years, except that the Director of Finance may consent to their destruction
within that period or may require that they be kept longer.
A.
Every utility subject to tax hereunder shall file, on or before September
25, December 25, March 25 and June 25, a return for the three calendar
months preceding each 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 Comptroller on a form to be furnished by him for such purpose
and shall contain such other data, information or matter as the Director
of Finance may require to be included therein.
B.
Notwithstanding the foregoing provisions of this section, any utility
whose average gross income or average gross operating income, as the
case may be, for the aforesaid three-month periods is less than $1,500
may file a return annually on June 25, for the 12 preceding calendar
months, and the Director of Finance may require any utility doing
business in the City of Watervliet to file an annual return which
shall contain any data specified by the Director of Finance regardless
of whether the utility is subject to tax under this article. The Director
of Finance, 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 Director of Finance. Every return
shall have annexed thereto an affidavit of the head of the utility
making the same, or of the copartner thereof, or of a principal officer
of the corporation, if such business be conducted by a corporation,
to the effect that statements contained therein are true.
At the time of filing a return as required by this article,
each utility shall pay to the Director of Finance 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 Director of Finance, and if a corrected or
sufficient return is not filed within 20 days after the same is required
by notice from the Director of Finance, or if no return is made for
any period, the Director of Finance 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 Director of Finance 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 Director of Finance for a hearing or unless the Director
of Finance of his own motion shall reduce the same. After such hearing,
the Director of Finance shall give notice of his decision to the person
liable for the tax. Any final determination by the Director of Finance
of the amount of any tax payable hereunder shall be reviewable for
error, illegality or unconstitutionality or any other reason whatsoever,
by a proceeding under Article 78 of the Civil Practice Act if application
is made to the Supreme Court within 30 days after the giving of a
notice of such final determination; provided, however, that any such
proceeding under Article 78 of the Civil Practice Act shall not be
instituted unless the amount of any tax sought to be reviewed with
such interest and penalties thereon, as may be provided for by local
law or regulation, 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 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 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 Director of Finance, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
If, within one year from the payment of any tax or penalty,
the payer thereof shall make application for a refund thereof and
the Director of Finance or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected,
the Director of Finance 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 Director of Finance. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
Comptroller as hereinbefore provided unless the Director of Finance,
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 Act 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 Director of Finance may receive additional evidence with
respect thereto. After making this determination, the Comptroller
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.
The tax imposed by this article shall be charged 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 costs of such utility.
Whenever any person shall fail to pay any tax or penalty imposed
by this article, the Corporation Counsel shall, upon the request of
the Director of Finance, bring an action to enforce payment of the
same. The proceeds of any judgment obtained in any such action shall
be paid to the Director of Finance. 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 Director of Finance
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 the proper judicial order as otherwise
provided by law, it shall be unlawful for the Director of Finance,
or any agent, Clerk or employee of the City of Watervliet, 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 City of Watervliet in an 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 Comptroller may assist in the collection
of such delinquent taxes; or the inspection by the Corporation Counsel
or other legal representatives of the City of Watervliet 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 six
months, or both, and if the offender be an officer, agent, Clerk or
employee of the City of Watervliet he shall be dismissed from office
and shall be incapable of holding any office or employment in the
City of Watervliet for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the Director of Finance
may exchange with the chief fiscal officer of any other city in the
State of New York information contained in returns filed under this
article, provided that such other City grants similar privileges to
the City of Watervliet, and provided that such information is to be
used for tax purposes only, and the Comptroller shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Director of Finance
under this article shall be credited to and deposited in the general
fund of the City of Watervliet.