[Adopted 8-12-1997 by L.L. No. 1-1997]
A tax equal to 1% of its gross income or of gross operating
income, as the case may be, from and after January 1, 1998, is hereby
imposed upon every utility doing business in the Village of Deposit.
This tax shall have application only within the territorial limits
of the Village of Deposit and shall be in addition to any other taxes.
Such tax shall not be imposed on any transaction originating or consummated
outside of the territorial limits of the Village of Deposit notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Words and phrases used in this article, unless otherwise noted,
shall have the same meanings as ascribed to them in § 186-a
of the Tax Law.
Notwithstanding any other provisions of this article or of § 186-a
of the Tax Law of the State of New York, the words "gross income"
shall include:
A.
In the case of a utility engaged in selling telephony or telephone
service, only receipts from local exchange service wholly consummated
within the Village of Deposit.
B.
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Deposit.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Village Clerk-Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Village Clerk-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, on or before
March 25, June 25, September 25 and December 25, a return for the
three calendar months preceding each such return date or any portion
thereof for which the tax imposed hereby 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 Village Clerk-Treasurer on a form to be furnished by them for
such purpose and shall contain such other data, information or matter
as the Village Clerk-Treasurer may require to be included therein.
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 Village Clerk-Treasurer may require any utility to
file an annual return which shall contain any data specified by them,
regardless of whether the utility is subject to tax under this article.
Every return shall have annexed thereto a certification by 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
shall 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 article,
each utility shall pay to the Village Clerk-Treasurer 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 Village Clerk-Treasurer, and if a corrected
or sufficient return is not filed within 20 days after the same is
required by notice from the Village Clerk-Treasurer, or if no return
is made for any period, the Village Clerk-Treasurer shall determine
the amount of tax due from such information as they are able to obtain,
and, if necessary, may estimate the tax on the basis of external indices
or otherwise. The Village Clerk-Treasurer 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 one year after the giving of notice
of such determination, apply to the Village Clerk-Treasurer for a
hearing, or unless the Village Clerk-Treasurer, of their own motion,
shall reduce the same. After such hearing, the Village Clerk-Treasurer
shall give notice of their decision to the person liable for the 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 the proceeding is commenced within
90 days after the giving of the notice of such final determination;
provided, however, that any such proceeding under said Article 78
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, ordinance or resolution, 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.
Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the
refund thereof duly made to the Village Clerk-Treasurer, and such
officer 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 commenced 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 proper fiscal officer
or officers 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.
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 with respect to taxes imposed under this section after the
expiration of more than three years from the date of the filing of
a return, provided that where no return has been filed as provided
herein, the tax may be assessed at any time.
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 them in the last return filed by them 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 Village Clerk-Treasurer, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
[Amended 1-12-1999 by L.L. No. 1-1999]
If, within one year from the giving of notice of any determination
or assessment of any tax or penalty, the person liable for the tax
shall make application for a refund thereof and the Village Clerk-Treasurer
or the court shall determine that such tax or penalty or any portion
thereof was erroneously or illegally collected, the Village Clerk-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
Clerk-Treasurer. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Village Clerk-Treasurer as
hereinbefore provided unless the Village Clerk-Treasurer, after a
hearing as hereinbefore provided, or of their 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 Law and Rules and
§ 5-530 of the Village Law 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 Village
Clerk-Treasurer may receive additional evidence with respect thereto.
After making their determination, the Village Clerk-Treasurer shall
give notice thereof to the person interested, and they shall be entitled
to commence a proceeding to review such determination subject to the
provisions of Article 78 of the Civil Practice Law and Rules and § 5-530
of the Village Law of the State of New York.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 or others but shall constitute
part of the operating costs such utility.
Whenever any person shall fail to pay any tax or penalty imposed
under the provisions of this article, the Village Attorney shall,
upon the request of the Village Clerk-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 Clerk-Treasurer.
In the administration of this article the Village Clerk-Treasurer
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary for the exercise of their
powers and the performance of their 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 their official duty
under this article, and to subpoena and require the attendance of
witnesses and the production of books, records, papers and documents.
This article shall take effect on the first day of January,
1998.
