[Adopted 6-14-2018 by L.L. No. 1-2018]
Pursuant to the authority established by § 5-530 of
the Village Law of the State of New York, the Village Board of the
Village of Buchanan is authorized to impose a tax of 1% of the gross
income or gross operating income of the following:
A.
Every utility doing business in the Village which is subject to the
supervision of the State Department of Public Service and which has
a gross income for the 12 months ending December 31 in excess of $500,
except motor carriers or brokers subject to such supervision under
Articles 5 and 6 of the Transportation Law.
B.
Every other utility doing business in the Village which has a gross
operating income for the 12 months ending December 31 in excess of
$500.
As used in this article, "gross income," "gross operating income,"
"person," "premises," "telecommunication services," "tenant" and "utility"
shall have the meanings as defined in § 186-a of the Tax
Law.
This article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Village.
B.
Not apply and the tax shall not be imposed on any transaction originating
or consummated outside of the territorial limits of the Village, notwithstanding
some act necessarily performed with respect to such transaction within
such limits.
C.
Be in addition to any and all other taxes.
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 certified 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
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 January 25 and July 25 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 July 25 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 head of the utility making
the same or by the owner or by a copartner thereof or by 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,
except for 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.
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 as authorized by § 186-a(6)
of the Tax Law.
In case 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 he is able
to obtain, and, if necessary, may estimate the tax on the basis of
external indexes 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, illegality or unconstitutionality or
any other reason whatsoever by a proceeding under Article 78 of the
Civil Practice Law and Rules if application therefore is made to the
Supreme Court within 90 days after the giving of the notice of such
final determination; provided, however, that any such proceeding under
said Act shall not be instituted unless the amount of any tax sought
to be reviewed, with such interest and penalties thereon as are herein
provided for 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 is 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 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 it is addressed.
Any period of time which is determined according to the provisions
of this section by the giving of 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 utility 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 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 Treasurer as hereinbefore provided unless he, 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 certiorari proceeding that such determination was erroneous or illegal. An application for refund, made as hereinbefore provided, shall be deemed an application for the revision of any tax or penalty complained of and the Treasurer may receive additional evidence with respect thereto. After making his determination, he shall give notice thereof to the utility interested, and said utility shall be entitled to a certiorari order to review in accordance with the provisions of § 181-27 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 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 is 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 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 to the Village
Treasurer, and in order to further ensure 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 and penalty imposed
by § 186-a of the Tax Law is made a lien.
If any section, subsection, clause, phrase or other portion
of this article is, for any reason, declared invalid, in whole or
in part, by any court, agency, commission, legislative body or other
authority of competent jurisdiction, such portion shall be deemed
a separate distinct and independent portion. Such declaration shall
not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
This article shall take effect immediately upon filing with
the Secretary of State of the State of New York.
