[Adopted 12-19-2002 by L.L. No. 6-2002]
This article shall be known as the "Albany County Motor Vehicle
Use Tax Law."
When used in this article, the following terms shall have the
following meanings:
Shall have the same meaning as defined in Vehicle and Traffic
Law § 104, as amended.
The Commissioner of Management and Budget of the County of
Albany.
Any motor vehicle subject to the registration fee as provided
for in § 401, Subdivision 6, of the Vehicle and Traffic
Law.
The Sheriff or his/her successor in office.
Shall have the same meaning as defined in Vehicle and Traffic
Law § 158, as amended.
A motor vehicle use tax pursuant to §§ 1202(a)
and (c) and 1201(e) of the Tax Law is hereby imposed in the following
manner:
A.
A tax of $5 per annum for the use of passenger motor vehicles of
a type commonly used for noncommercial purposes owned by residents
of the County for each such vehicle weighing 3,500 pounds or less,
and a tax of $10 per annum for such vehicles in excess of 3,500 pounds.
B.
A tax of $10 per annum for the use of trucks, buses and other such
commercial vehicles used principally in connection with a business
carried on within the County, except when owned and used in connection
with the operation of a farm by the owner or tenant thereof.
The tax imposed by this article shall not be imposed upon any
vehicle exempt from the registration fee pursuant to the Vehicle and
Traffic Law.
A.
Every owner of a motor vehicle subject to tax hereunder shall pay
the tax thereon to the Commissioner of Motor Vehicles of the State
of New York on or before the date upon which he/she registers or renews
his/her registration thereof or is required to register or renew his/her
registration thereof pursuant to Vehicle and Traffic Law § 401.
B.
Notwithstanding the provisions of Vehicle and Traffic Law § 400
to the contrary, the payment of such tax shall be a condition precedent
to the registration or renewal thereof of such motor vehicle and to
the issuance of any certificate of registration and plates or removable
tag specified in Subdivision 3 of § 401 and §§ 403
and 404 of the Vehicle and Traffic Law, and no such certificate of
registration, plates or tag shall be issued unless such tax has been
paid. The Commissioner of Motor Vehicles shall not issue a registration
certificate for any motor vehicle for which the registrant's address
is within the County except upon proof in a form approved by the Commissioner
of Motor Vehicles that such tax has been paid or is not due, with
respect to such motor vehicle. The Commissioner of Motor Vehicles,
upon the payment of such tax or upon the application of any person
exempt therefrom, shall furnish to each taxpayer paying the tax a
receipt for such tax and to each such taxpayer or exempt person a
statement, document or other form approved by the Commissioner of
Motor Vehicles, pursuant to the last sentence, showing that such tax
has been paid or is not due, with respect to such motor vehicle.
A.
At the time the payment of the tax imposed by this article becomes
due, every person subject to tax hereunder shall file a return with
the Commissioner of Motor Vehicles in such form and containing such
information as may be prescribed by such Commissioner of Motor Vehicles.
The taxpayer's application for registration or the renewal of registration
shall constitute the return required under this article, unless the
Commissioner of Motor Vehicles, by regulation, shall otherwise provide.
B.
Returns shall be preserved for three years and thereafter until the
Commissioner of Motor Vehicles permits them to be destroyed.
C.
The Commissioner of Motor Vehicles may require amended returns or
certificates of facts to be filed within 20 days after notice and
to contain the information specified in the notice. Any such certificate
shall be deemed to be part of the return required to be filed.
D.
If a return required by this article is not filed or if a return
when filed is incorrect or insufficient on its face, the Commissioner
of Motor Vehicles or the Commissioner of Management and Budget, if
designated as his/her agent, shall take the necessary steps to enforce
the filing of such a return or of a corrected return.
If a return required by this article is not filed or if a return
when filed is incorrect or insufficient or if a tax or any part thereof
due hereunder is not paid when required, the amount of tax due shall
be determined by the Commissioner of Motor Vehicles or by the County
Commissioner of the Department of Management and Budget, if designated
as his/her agent, from such information as may be obtainable, including
motor vehicle registration with the Department of Motor Vehicles of
the State of New York and/or other factors. Notice of such determination
shall be given to the person liable for the tax. Such determination
shall finally and irrevocably fix the tax unless the person against
whom it is assessed, within 30 days after the giving of notice of
such determination, shall apply to the Commissioner of Motor Vehicles
or to the County Commissioner of Management and Budget, if designated
as his/her agent, for a hearing or unless such Commissioner or agent,
as the case may be, of his/her own motion, shall redetermine the same.
After such hearing, the Commissioner of Motor Vehicles, if he/she
holds the hearing, or the County Commissioner of the Department of
Management and Budget, if the County Commissioner of Management and
Budget holds the hearing, shall give notice of the determination of
such application to the person against whom the tax is assessed. Such
determination 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 therefor is made to
the Supreme Court within four months after the giving of the notice
of such determination. A proceeding under Article 78 of the Civil
Practice Law and Rules shall not be instituted unless the amount of
any tax sought to be reviewed, with penalties and interest thereon,
if any, shall be first deposited with the Commissioner of Motor Vehicles
and there shall be filed with the Commissioner of Motor Vehicles an
undertaking, issued by a surety company authorized to transact business
in this state and approved by the Superintendent of Insurance of this
state as to solvency and responsibility, in such amount 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 the proceeding;
or at the option of the applicant, such undertaking filed with the
Commissioner of Motor Vehicles may be in a sum sufficient to cover
the taxes, penalties and interest thereon stated in such determination,
plus the costs and charges which may accrue against it in the prosecution
of the proceeding, in which event the applicant shall not be required
to deposit such taxes, penalties and interest as a condition precedent
to the application.
Whenever any fee or portion of a fee paid for the registration
of a motor vehicle under the provisions of the Vehicle and Traffic
Law is refunded pursuant to the provisions of Subdivision 1 of § 428
thereof, the amount of any tax paid pursuant to this article upon
such registration shall also be refunded by the Commissioner of Motor
Vehicles.
A.
In the manner provided in this section, the Commissioner of Motor
Vehicles shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected
or paid if application for such refund shall be made within one year
from the payment thereof to the Commissioner of Motor Vehicles or
to the County Commissioner of Management and Budget, if designated
as his/her agent. Whenever a refund is made, the reasons therefor
shall be stated, in writing, by the Commissioner of Motor Vehicles
or by the County Commissioner of Management and Budget, as the case
may be, who, in lieu of any refund, may allow credit therefor on payments
due from the applicant.
B.
An application for a refund or credit made as herein provided shall
be deemed an application for a revision of any tax, penalty or interest
complained of and the Commissioner of Motor Vehicles or the County
Department of Management and Budget, if designated as his/her agent,
shall hold a hearing and receive evidence with respect thereto. After
such hearing, the Commissioner of Motor Vehicles, if he/she holds
the hearing, or the County Commissioner of the Department of Management
and Budget, if the County Commissioner of the Department of Management
and Budget holds the hearing, shall give notice of the determination
of such application to the applicant, who shall be entitled to review
such determination by a proceeding pursuant to Article 78 of the Civil
Practice Law and Rules, provided that such proceeding is instituted
within four months after the giving of notice in such determination,
and provided that a final determination of tax due was not previously
made. Such a proceeding shall not be instituted unless an undertaking
is filed with the Commissioner of Motor Vehicles 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.
C.
A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which has been determined to be due pursuant to the provisions of § 270-97 of this article where he/she has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself/herself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination made pursuant to § 270-97 of this article, unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper after a hearing or, on his/her own motion, by the Commissioner of Motor Vehicles or by the County Commissioner of Management and Budget, as the case may be, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
In cases where a taxpayer has applied for a refund and has instituted
a proceeding under Article 78 of the Civil Practice Law and Rules
to review a determination adverse to such taxpayer on his/her application
for refund, the County Commissioner of the Department of Management
and Budget shall set up appropriate reserves to meet any decision
adverse to the County.
The remedies provided by §§ 270-100 and 270-102 shall be exclusive remedies available to any person for the review of tax liability imposed by this article, and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than a proceeding in the nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer, may proceed by declaratory judgment if he/she institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Commissioner of Motor Vehicles prior to the institution of such suit and posts a bond for costs as provided in § 270-100 of this article.
A.
Whenever any person shall fail to pay any tax, penalty or interest
imposed by this article as herein provided, the County Attorney, upon
the request of the Commissioner of Motor Vehicles or of the County
Commissioner of the Department of Management and Budget, if designated
as his/her agent, shall bring or cause to be brought an action in
accordance with the Laws of Albany County to enforce the payment of
the same on behalf of the County of Albany in any court of the State
of New York or of any other state of the United States. However, if
in his/her discretion the Commissioner of Motor Vehicles or the County
Commissioner of the Department of Management and Budget, if designated
as his/her agent, believes that any such person subject to the provisions
of this article is about to cease business, leave the state or remove
or dissipate the assets out of which the tax or penalty might be satisfied
and that any such tax or penalty will not be paid when due, he/she
may declare such tax or penalty to be immediately due and payable
and may issue a warrant immediately.
B.
As an additional or alternate remedy, the Commissioner of Motor Vehicles
or the County Commissioner of the Department of Management and Budget,
if designated as his/her agent, may issue a warrant, directed to the
Sheriff commanding him/her to levy upon and sell the real and personal
property of the person liable for the tax which may be found within
the County for the payment of the amount thereof, with any penalty
and interest, and the cost of executing the warrant, and to return
such warrant to the person who issued it and to pay to him/her the
money collected by virtue thereof within 60 days after the receipt
of such warrant. The Sheriff shall, within five days after the receipt
of the warrant, file with the County Clerk a copy thereof, and thereupon
such Clerk shall enter in the judgment docket the name of the person
mentioned in the warrant and the amount of the tax, penalty and interest
for which the warrant is issued and the date when such copy is filed.
Thereupon, the amount of such warrant so docketed shall become a lien
upon the title to and the interest in real and personal property of
the person against whom the warrant is issued. The Sheriff shall then
proceed upon the warrant in the same manner and with like effect as
that provided by law with respect to executions issued against property
upon judgments of a court of record; and for services in executing
the warrant, such Sheriff shall be entitled to no fee or compensation
in excess of the actual expenses paid in the performance of such duty.
If a warrant is returned not satisfied in full, the Commissioner of
Motor Vehicles or the County Commissioner of the Department of Management
and Budget, as the case may be, may from time to time issue new warrants
and shall also have the same remedies to enforce the amount due thereunder
as if he/she had recovered judgment therefor and execution thereon
had been returned unsatisfied.
In addition to the powers granted to the Commissioner of Motor
Vehicles in this article, he/she is hereby authorized and empowered:
A.
To make, adopt and amend rules and regulations appropriate to the
carrying out of this article;
B.
For cause shown, to remit penalties, and to compromise disputed claims
in connection with the taxes hereby imposed;
C.
To request information concerning motor vehicles and persons subject
to the provisions of this article from the Department of Motor Vehicles
of any other state or the Treasury Department of the United States
or any city or county of the State of New York, and to afford such
information to such other state, Treasury Department, city or county,
any provision of this article to the contrary notwithstanding;
D.
To delegate his/her functions hereunder to a Deputy Commissioner
in the Department of Motor Vehicles or any employee or employees of
his/her department;
E.
To prescribe methods for determining the tax to keep such records
as he/she may prescribe and to furnish such information upon his/her
request;
F.
To require all persons owning motor vehicles subject to tax to keep
such records as he/she may prescribe and to furnish such information
upon his/her request;
G.
To request the Albany County Sheriff to assist in the enforcement
of the provisions of this article.
A.
The Commissioner of Motor Vehicles or his/her employees or agents
duly designated and authorized by such Commissioner shall have power
to administer oaths and take affidavits in relation to any matter
or proceeding in the exercise of the powers and duties under this
article. The Commissioner of Motor Vehicles or the County Commissioner
of the Department of Management and Budget, if designated as his/her
agent, shall have the power to subpoena and require the attendance
of witnesses and the production of books, papers and documents to
secure information pertinent to the performance of his/her duties
hereunder and of the enforcement of this article and to examine them
in relation thereto and to issue commissions for the examination of
witnesses who are out of the state or unable to attend before him/her
or excused from attendance.
B.
A Justice of the Supreme Court, either in court or at chambers, shall
have power summarily to enforce by proper proceedings the attendance
and testimony of witnesses and production and examination of books,
papers and documents called for by the subpoena of the Commissioner
of Motor Vehicles or the County Commissioner of the Department of
Management and Budget, if designated as his/her agent under this article.
C.
The officers who serve the summons or subpoena of the Commissioner
of Motor Vehicles or the County Commissioner of the Department of
Management and Budget, if designated as his/her agent, and witnesses
attending in response thereto shall be entitled to the same fees as
are allowed to officers and witnesses in civil cases in courts of
record, except as herein otherwise provided. Such officers shall be
the County Commissioner of the Department of Management and Budget
and his/her duly appointed deputies or any officers or employees of
the Department of Motor Vehicles designated by the Commissioner of
Motor Vehicles to serve such process or any officers or employees
of the Commissioner of the Department of Management and Budget of
the County designated by the County Commissioner of the Department
of Management and Budget to serve such process.
A.
Any person failing to file a return or to pay any tax or any portion
thereof within the time required by this article shall be subject
to a penalty of five times the amount of the tax due, plus interest
of 5% of such tax for each month of delay or fraction thereof, but
the Commissioner of Motor Vehicles or the County Commissioner of the
Department of Management and Budget, if designated as his/her agent,
if satisfied that the delay is excusable, may remit all or any part
of such penalty, but not interest at the rate of 6% per year. Penalties
and interest shall be paid and disposed of in the same manner as other
revenues under this article. Unpaid penalties and interest may be
enforced in the same manner as the tax imposed by this article.
B.
The certificate of the Commissioner of Motor Vehicles or of the County
Commissioner of the Department of Management and Budget, if designated
as his/her agent, to the effect that a tax has not been paid or that
a return required by this article has not been filed or that information
has not been supplied pursuant to the provisions of this article shall
be presumptive evidence thereof.
Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the Commissioner of Motor Vehicles, any officer or employee of the Department of Motor Vehicles, the County Commissioner of the Department of Management and Budget, any officer or employee of the Commissioner of the Department of Management and Budget's Office, any agent of the Commissioner of Motor Vehicles or any person who, pursuant to this section, is permitted to inspect any return or to whom a copy, an abstract or portion of any return is furnished or to whom any information contained in any return is furnished to divulge or make known in any manner any information contained in or relating to any return provided for by this article. The officers 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 Commissioner of Motor Vehicles or the County Commissioner of the Department of Management and Budget in an action or proceeding under the provisions of this article or on behalf of any party to an 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. The Commissioner of Motor Vehicles or the County Commissioner of the Department of Management and Budget, if designated as his/her agent, may nevertheless publish a copy or a summary of any determination or decision rendered after a formal hearing held pursuant to § 270-100 or 270-102 of this article. Nothing herein shall be construed to prohibit the delivery to a person or his/her duly authorized representative of a certified copy of any return filed by him/her pursuant to this chapter or of the receipt, document or other form issued pursuant to § 270-98 of this article or a duplicate copy thereof, nor to prohibit the delivery of such a certified copy of such return or any information contained in or relating thereto to the United States of America or any department thereof, the State of New York or any department thereof or the County of Albany or any department thereof, provided that the same is required for official business, nor to prohibit the inspection for official business of such returns by the County Attorney or other legal representatives of the County or by the District Attorney, nor to exhibit the publication of statistics so classified as to prevent the identification of particular returns or items thereof.
A.
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
in the last return filed by him/her pursuant to the provisions of
this article, in any application made by him/her pursuant to or in
any application for registration made by him/her pursuant to Vehicle
and Traffic Law § 401 or, if no return has been filed or
application made, 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.
B.
The provisions of the Civil Practice Law and Rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the Commissioner
of Motor Vehicles or the County Commissioner of the Department of
Management and Budget, if designated as his/her agent, to levy, appraise,
assess, determine or enforce the collection of any tax or penalty
provided by this article. However, 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 provided by law, the tax may
be assessed at any time.
C.
Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a taxpayer has consented, in
writing, that such period be extended, the amount of such additional
tax may be determined at any time within such extended period. The
period so extended may be further extended by subsequent consents,
in writing, made before the expiration of the extended period.
D.
If any return, claim, statement, notice, application or other document
required to be filed or any payment required to be made within a prescribed
period or on or before a prescribed date under authority of any provision
of this title is, after such period or such date, delivered by United
States Mail to the Commissioner of Motor Vehicles, County Commissioner
of the Department of Management and Budget, bureau, office, officer
or person with which or with whom such document is required to be
made, the date of the United States postmark stamped on the envelope
shall be deemed to be the date of delivery. This subsection shall
apply only if the postmark date falls within the prescribed period
or on or before the prescribed date for the filing of such document
or for making the payment, including any extension granted for such
filing or payment, and only if such document or payment was deposited
in the mail, postage prepaid, properly addressed to the Commissioner
of Motor Vehicles, County Commissioner of the Department of Management
and Budget, bureau, office, officer or person with which or with whom
such payment is required to be made. If any document is sent by United
States registered mail, such registration shall be prima facie evidence
that such document was delivered to the Commissioner of Motor Vehicles,
County Commissioner of the Department of Management and Budget, bureau,
office, officer or person to which or to whom addressed, and the date
of registration shall be deemed the postmark date. The Commissioner
of Motor Vehicles is authorized to provide by regulation the extent
to which the provisions of the preceding sentence with respect to
prima facie evidence of delivery and the postmark date shall apply
to certified mail. This subsection shall apply in the case of postmarks
not made by the United States Postal Service only if and to the extent
provided by regulation of the Commissioner of Motor Vehicles.
E.
When the last day prescribed under authority of this article (including
any extension of time) for performing any act falls on a Saturday,
Sunday or legal holiday in the State of New York, the performance
of such act shall be considered timely if it is performed on the next
succeeding day which is not a Saturday, Sunday or legal holiday.
The Commissioner of Motor Vehicles is hereby authorized to designate the Albany County Commissioner of the Department of Management and Budget as his/her agent to exercise any or all of his/her functions and powers specified or provided for in § 270-99D and in §§ 270-100, 270-102, 270-105, 270-107, 270-108 and 270-110 of this article. Where the County Commissioner of the Department of Management and Budget has been so designated as agent, the County Commissioner of the Department of Management and Budget, in addition to the powers elsewhere granted to him/her in this article, is hereby authorized and empowered:
A.
To delegate such functions and powers to any employee or employees
of the Commissioner of the Department of Management and Budget's Office;
B.
For cause shown, to remit penalties and to compromise disputed claims
in connection with the taxes hereby imposed;
C.
To request information concerning motor vehicles and persons subject
to the provisions of this article from the Department of Transportation
of the United States or any city or county of the State of New York,
and to afford such information to such other state, treasury department,
city or county, any provision of this article to the contrary notwithstanding;
D.
To request the Sheriff's Department of the County to assist in the
enforcement of the provisions of this article.
The County Commissioner of the Department of Management and
Budget is hereby authorized and empowered to enter into an agreement
with the Commissioner of Motor Vehicles to govern the administration
and collection of the taxes imposed by this article, which agreement
shall provide for the exclusive method of collection of such taxes,
custody and remittal of the proceeds of such tax; for the payment
by the County of the reasonable expenses incurred by the Department
of Motor Vehicles in collecting and administering such tax; and for
the audit, upon request of the County Commissioner of the Department
of Management and Budget, or his/her delegate, of the accuracy of
the payment distributions and remittances to the County Commissioner
of the Department of Management and Budget pursuant to the provisions
of this article, to be conducted at a time agreed upon by the State
Comptroller and to be allowed not more frequently than once in each
calendar year. Such agreement shall have the force and effect of a
rule or regulation of the Commissioner of Motor Vehicles and shall
be filed and published in accordance with any statutory requirements
relating thereto.
The Commissioner of Motor Vehicles shall promptly notify the
County Attorney of any litigation instituted against him/her which
challenges the constitutionality or validity of any provision of this
article or which attempts to limit or question the applicability of
such law, and such notification shall include a copy of the papers
served upon him/her.
All revenues resulting from the imposition of the tax under
this article shall be paid into the treasury of the County and shall
be credited to and deposited in the general fund of the County. Such
funds shall be used to offset ongoing County highway operational costs.
