The purpose of this chapter is to implement New York Village
Law § 5-530, which enables the Vllage to collect utility
gross receipts tax. This chapter shall supersede Local Law No. 1 -
1950 of the Code of the Village of North Pelham, entitled "A local
law to impose a tax on utilities doing business in the Village of
North Pelham."
As used in this Chapter
85, each of the following defined 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 this state, 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 this state 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, also profits from any transaction whatsoever within this
state, except sales for resale and rentals.
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, refrigeration, telephone or telegraph
service in this state, 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
associations, copartnerships, 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.
UTILITY
Includes every person subject to the supervision of the State
Department of Public Service, except omnibus corporations subject
to the supervision of the State Department of Public Service under
Article 7 of the Transportation Law and 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.
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 June 2017, is hereby imposed
upon every utility doing business in the Village 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 §§ 240 et seq., of the Transportation Law and
a tax equal to 1% of its gross operating income from and after the
first day of June 2017 is hereby imposed upon every other utility
doing business in the Village 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,
and shall be in addition to any and all other taxes and fees imposed
by any other provisions of law. Such taxes shall not be imposed on
any transaction originating or consummated outside of the territorial
limits of the Village, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
Every utility subject to tax under this Chapter
85 shall keep such records of its business and in such form as the Treasurer may require, and such records shall be preserved for a period of three years, except that the Treasurer 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 February, a return for the 12 calendar
months ending December 31 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 June 25, September 25,
December 25 and March 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 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 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, 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
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. very 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 Chapter
85, each Utility shall pay to the Treasurer the tax imposed by this Chapter
85 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.
Any notice authorized or acquired under the provisions of this Chapter
85 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 Chapter
85 or, if no return has been filed, then to the address given in the last report of the utility filed with the Public Service Commission or, if no such report has been filed, 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 Chapter
85 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 Chapter
85 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 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 Treasurer or the court shall determine that such tax or penalty
or any portion thereof was erroneously or illegally collected, the
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 Treasurer. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Treasurer as hereinbefore
provided, or of his own motion, which 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.
A. All refunds shall be made out of moneys collected under this Chapter
85.
B. 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 Treasurer may receive additional evidence with respect
thereto.
C. After making his or her determination, the Treasurer shall give notice
thereof to the person interested, such person 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 Chapter
85 shall be charged against 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 Chapter
85, the Village Attorney shall, upon the request of the 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 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 § 32 and/or Article 9-A of the Tax Law is made a lien.
In the administration of this Chapter
85, the Treasurer 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 Chapter
85, and to subpoena and require the attendance of witnesses and the production of books, papers and documents.
All taxes and penalties received by the Treasurer of the Village under this Chapter
85 shall be paid into the treasury of the Village and shall be credited to and deposited in the general fund of the Village.
If any provision of this Chapter
85 is ruled unconstitutional or invalid, such ruling shall not affect the validity of any other provision of said chapter or said chapter as a whole.