[HISTORY: Adopted by the Board of Trustees of the Village
of Avon. Amendments noted where applicable.]
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 on and after the first day of July 1972 is hereby imposed upon
every utility doing business in the Village of Avon, New York, which
is subject to the supervision of the State Department of Public Service,
which has a gross income for 12 months ending May 31 in excess of
$500, except motor carriers of property subject to such supervision
under Article 3-B of the Public Service Law,[1] and a tax equal to 1% of its gross operating income from
and after the first day of July 1972 is hereby imposed upon every
other utility doing business in the Village of Avon, New York, which
has a gross operating income for 12 months ending May 31 in excess
of $500, which taxes shall have application only within the territorial
limits of the Village of Avon and shall be in addition to any other
taxes and fees imposed by any other provision of law. Such taxes shall
not be imposed on any transaction originating or consummated outside
of the territorial limits of the Village of Avon, notwithstanding
that some acts be necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: Article 3-B of the Public Service Law was repealed
by c. 267 of the Laws of 1970, effective March 1, 1971. Section 240
the Transportation Law provides for the transfer of functions to the
Department of Transportation. See now Transportation Law Art. 8, § 170
et seq.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Words and phrases used in this chapter, unless otherwise noted,
shall have the same meanings as ascribed to them in § 186-a
of the Tax Law.
Every utility subject to tax under this chapter shall keep such
records of its business and in such form as the Village Treasurer
may require, or as the Village Board may require, and such records
shall be preserved for a period of three years, except that the Village
Treasurer or the Village Board 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
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 an amendment hereof
is effective. Every return shall state the gross income or gross operating
income for the period covered thereby. 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 he may
require to be included therein. The Village Treasurer, in order to
insure 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
of Avon, New York, to file an annual return, which shall contain any
data specified by him, regardless of whether the utility is subject
to tax under this chapter. 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 is conducted by a corporation, to the
effect that the statements contained therein are true.
At the time of the filing of a return as required by this chapter,
each utility shall pay to the Village of Avon the tax imposed by this
chapter 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 chapter 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 him, or if no return is made for any period, 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. He 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. Such decision 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 90 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 be dismissed or the tax confirmed, the applicant
will pay all costs and charges which may accrue in the prosecution
of such proceeding, or at the option of the application, such undertaking
may be in a sum sufficient to cover the tax, interest and penalties
as a condition precedent to the granting of such order. Except in
the case of wilfully 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 chapter the tax may be assessed at any time.
Any notice authorized or required under the provisions of this
chapter may be given by mailing the same to the persons 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,
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 chapter 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 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, 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 of 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 payer 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 if 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 monies collected under this chapter.
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 shall give notice thereof to the person
interested, and he shall be entitled to an order to review such determination
under said Article 78 of the Civil Practice Law and Rules of the State
of New York, subject to the provision hereinbefore contained relating
to the granting of such an order.
The tax imposed by this chapter 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, the Village Attorney shall, upon the request of the
Village Board, 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.
In the administration of this chapter, the Village 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, and to subpoena and require the attendance of
witnesses and the production of books, papers and documents.
All taxes and penalties received by the Village Treasurer under
this chapter shall be paid into the treasury of the Village of Avon,
New York and shall be credited to and deposited in the general fund
of the Village.
