[Adopted 10-2-1979 by L.L. No. 5-1979 (Ch. 117, Art. I, of the 1981 Code)]
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
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.
B.
In the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village.
C.
In the case of any utility other than defined
above:
(1)
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 the Village, 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 the materials
used, labor or services or other costs, interest or discount paid
or any other expense whatsoever.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
(4)
Profits from the sale of personal property,
other than property of a kind which would properly be included in
the inventory of a taxpayer if on hand at the close of the period
for which a return is made.
(5)
Receipts from interest, dividends and royalties
derived from sources within the Village (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 receipts thereof.
(6)
Profits from any transaction, except sales for
resale and rentals, within the Village whatsoever.
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, refrigerator, telephone or telegraph
service in the Village, including cash, credits and property of any
kind or nature, without 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.
PERSON
Includes persons, corporations, companies, associations,
joint-stock associations, copartnerships, estates, assignees of rent,
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, public
districts and corporations and associations organized and operated
exclusively for religious, charitable or educational purposes no part
of the net earnings of which inures to the benefit of any private
shareholder or individual.
TREASURER
The Village Treasurer of the Village.
UTILITY
A.
Every person subject to the supervision of the
State Department of Public Service, except:
(1)
Persons engaged in the business of operating
or leasing sleeping and parlor railroad cars.
(2)
Persons engaged in the business of operating
railroads other than street surface, rapid transit, subway and elevated
railroads.
(3)
Omnibus corporations subject to supervision
under Transportation Law § 150 et seq.
B.
Every person, whether or not such person is
subject to the supervision of the State Department of Public Service,
who sells gas, electricity, steam, water, refrigeration, telephony
or telegraphy delivered through mains, pipes or wires or furnishes
gas, electric, steam, water, refrigeration, telephone or telegraphic
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 whether use is made of the public streets.
VILLAGE
The Incorporated Village of Great Neck Estates.
Pursuant to the authority granted by the Village
Law of the State of New York, from, on and after January 1, 1980,
there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Village which is subject to the supervision
of the New York State Department of Public Service and which has an
annual gross income in excess of $500, except motor carriers or brokers
subject to such supervision under Transportation Law § 240.
B. A tax equal to 1% of the gross operating income of
every other utility doing business in the Village which has an annual
gross operating income in excess of $500.
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 that some act be necessarily
performed with respect to such transactions within such limits.
C. Be in addition to any and all other taxes.
D. Apply to all subject income received on and after
January 1, 1980.
All revenues resulting from the imposition of
the tax imposed by this article shall be paid to the Treasurer of
the Village and shall be credited to and deposited in the general
fund of the Village.
The 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 registered
mail to all utilities subject to this article which register as such
with the Treasurer. All such rules, regulations and directives shall
be deemed a part of this article.
Every utility subject to tax under this article
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 unless the Treasurer directs otherwise.
A. Time of filing. Every utility subject to a tax hereunder
shall file, on or before December 25 and June 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.
Any utility, whether subject to tax under this article or not, may
be required by the Treasurer to file an annual return.
B. Filing and contents. Returns shall be filed with the
Treasurer on a form to be furnished by him for such purpose and shall
show thereon the gross income or gross operating income, as the case
may be, for the period covered by the return and such other information,
data or matter as the 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 of the owner or of a copartner thereof
or of 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 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 the first month, after such return was required to
be filed or such tax became due; but the 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 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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Treasurer, he may require
at any time a corrected 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 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 indices
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 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 the proceeding
is commenced within 90 days after the giving of 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 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 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 person
liable for the tax 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 unless the Treasurer, after a hearing as hereinabove provided,
or of his own motion, shall have reduced the tax or penalty or it
shall have been established in a proceeding in the manner provided
in the Civil Practice Law and Rules that such determination was erroneous
or illegal. 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. After making his determination, the Treasurer shall
give notice thereof to the person interested, who shall be entitled
to commence a proceeding to review such determination, in accordance
with the provisions of the following section hereof.
Where any tax imposed hereunder shall have been
erroneously, illegally or unconstitutionally collected and application
for the refund thereof shall have been duly made to the 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 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 the 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 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
the Treasurer, and in order to further ensure payment of the tax imposed
hereby, he shall have the power to:
A. Prescribe the form of all reports and returns required
to be made hereunder.
B. Take testimony and proofs, under oath, with reference
to any matter hereby entrusted to him.
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
Whenever any person shall fail to pay any tax
or penalty imposed by this article, 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 § 186-a of the Tax Law is made a lien.