[Amended 4-21-1998 by L.L. No. 1-1998]
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 May 1951, is hereby
imposed upon every utility doing business in the Village of Newark
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 and a tax equal
to 1% of its gross operating income from and after the first day of
May 1951, is hereby imposed upon every other utility doing business
in the Village of Newark which has a gross operating income for the
12 months ending May 31 in excess of $500, which taxes shall have
application only with the territorial limits of the Village of Newark,
and shall be in addition to any and all 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 Newark, notwithstanding that some act be
necessarily performed with respect to such transaction within such
limits.
[Amended 4-21-1998 by L.L. No. 1-1998]
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.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Village
Treasurer may require, and such records shall be preserved for a period
of three years, except that the Village Treasurer may consent to their
destruction within that period or may require that they be kept longer.
[Amended 4-21-1998 by L.L. No. 1-1998]
Every utility subject to a tax hereunder shall
file on or before March 15 of each year a return for the year ended
on the preceding December 31. A return for the 12 calendar months
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 September 25, December 25, March 25 and
June 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
calendar 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 Village
Treasurer on a form to be furnished by him or her for such purpose
and shall contain such other data, information or matter as he or
she may require to be included therein. The Village 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 or her, and he or she may require any utility
doing business in the Village of Newark to file an annual return,
which shall contain any data specified by him or her, regardless of
whether the utility is subject to tax under this article. 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
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 article, each utility shall pay to the Village Treasurer the
tax imposed by this article for the period covered by such return
or, if a return is not filed when due, on the last day on which the
return is required to be filed.
A. In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
and if a correct or sufficient return is not filed within 20 days
after the same is required by notice from the Treasurer, or if no
return is made for any period, the Village Treasurer shall determine
the amount of tax due from such information as he or she is able to
obtain, and if necessary, may estimate the tax on the basis of external
indices or otherwise.
B. The Village 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 30 days after the giving of notice or such
determination, apply to the Village Treasurer for a hearing, or unless
the Village Treasurer of his or her own motion shall reduce the same.
After such hearing the Village Treasurer shall give notice of his
or her decision to the person liable for the tax.
C. Such decision may be reviewed by a proceeding under
Article 78 of the Civil Practice Act 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 or her, 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 applicant,
such undertaking may be in a sum sufficient to cover the tax, interest,
penalties, costs and charges aforesaid, in which event the applicant
shall not be required to pay such tax, interest and penalties as a
condition precedent to the granting of such order.
D. 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 required by this article 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 him or her in the last return
filed by him or her 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 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 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 or her 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 Act 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 Treasurer may receive additional evidence with
respect thereto. After making his or her determination, the Village
Treasurer shall give notice thereof to the person interested, and
he or she 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 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.
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Village Attorney shall, upon
the request of the Village 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 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 article 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 or her powers and the performance of his or her 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 or her official duty under this article, and to subpoena and require
the attendance of witnesses and the production of books, papers and
documents.
A. Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Village
Treasurer or any agent, clerk or employee of the Village of Newark
to divulge or make known in any manner the amount of gross income
or gross operating income, or any particulars set forth or disclosed
in any return under this article.
B. The officer charged with the custody of such returns
shall not be required to produce any of them or evidence of anything
contained in them in action or proceeding in any court, except on
behalf of the Village of Newark in any action or proceeding under
the provisions of this article, or on behalf of the State Tax Commission
in an action or proceeding under the provisions of the Tax Law of
the State of New York, or on behalf of any party to any 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, as much of said returns or of the facts
shown thereby, as are pertinent to the action or proceeding, and no
more.
C. Nothing herein shall be construed to prohibit the
delivery to a person, or his or her duly authorized representative,
of a copy of any return filed by him or her, nor to prohibit the publication
of statistics so classified as to prevent the identification of particular
returns and the items thereof, or the publication of delinquent lists
showing the names of persons who have failed to pay their taxes at
the time and in the manner provided for by this article, together
with any relevant information which in the opinion of the Village
Treasurer may assist in the collection of such delinquent taxes; or
the inspection by the Village Attorney or other legal representatives
of the Village of Newark of the return of any person who shall bring
action to set aside or review the tax based thereon, or against whom
an action has been instituted in accordance with the provisions of
this article.
D. Any offense against the foregoing secrecy provisions
shall be punishable by a fine not exceeding $1,000 or by imprisonment
not exceeding one year, or both, and if the offender be an officer,
agent, clerk or employee of the Village of Newark, he or she shall
be dismissed from office and shall be incapable of holding any office
or employment in the Village of Newark for a period of five years
thereafter.
E. Notwithstanding any provisions of this article the
Village Treasurer may exchange with the chief fiscal officer of any
city or any other Village in the State of New York information contained
in returns filed under this article, provided that such city or other
Village grants similar privileges to the Village of Newark, and provided
that such information is to be used for tax purposes only, and the
Village Treasurer shall, upon request, furnish the State Tax Commission
with any information contained in such returns.
All taxes and penalties received by the Village
Treasurer under this article shall be paid into the treasury of the
Village and shall be credited to and deposited into the general fund
of the Village.