[Adopted 12-27-1967 by L.L. No. 3-1967]
Pursuant to the authority granted by § 6-640
of the Village Law of the State of New York,[1] a tax equal to 1% of its gross income from and after the
first day of January 1968 is hereby imposed upon every utility doing
business in the Village of Ardsley 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 subject to such supervision under Article 3-B of the Public
Service Law, and a tax equal to 1% of its gross operating income from
and after the first day of January 1968 is hereby imposed upon every
other utility doing business in the Village of Ardsley which has a
gross operating income for the 12 months ending May 31 in excess of
$500, which taxes shall have application only within the territorial
limits of the Village of Ardsley, 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 Ardsley,
notwithstanding that some act be necessarily performed with respect
to such transaction within such limits.
[1]
Editor's Note: See Village Law § 5-530.
As used in this Article, the following terms
shall have the meanings indicated:
Includes 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 of Ardsley, 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
on account of the cost of the property sold, the cost of the materials
used, labor or other services or other costs, interest or discount
paid, or any other expense whatsoever; also profits from the sale
of securities; also profits from the sale of real property growing
out of the ownership or use of or interest in such property; also
profit from the sale of personal property (other than property of
a kind which would properly be included in the inventory of the taxpayer
if on hand at the close of the period for which a return is made);
also receipts from interest, dividends and royalties, derived from
sources within the Village of Ardsley 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 receipt thereof; and also
profits from any transaction (except sales for resale and rentals)
within the Village of Ardsley whatsoever; provided, however, that
the words "gross income" shall include, in the case of a utility engaged
in selling telephony or telephone service, only receipts from local
exchange service wholly consummated with the Village of Ardsley, and
in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Ardsley.
Include 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 of Ardsley, including cash, credits and property
of any kind or nature, without any deduction therefrom on account
of the cost of the property sold, the cost of materials used, labor,
or service or other costs, interest or discount paid or any other
expenses whatsoever.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees of rents, 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, and
public districts.
Includes every person subject to the supervision of the State
Department of Public Service, except persons engaged in the business
of operating or leasing sleeping and parlor railroad cars or of operating
railroads other than street surface, rapid transit, subway and elevated
railroads, and also includes every person (whether or not such person
is subject to such supervision) who sells gas, electricity, steam,
water, refrigeration, telephony or telegraphy delivered through mains,
pipes or wires, or furnishes gas, electric, steam, water, refrigerator,
telephone or telegraph 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 of whether use is made of
the public streets.
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.
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
any amendment hereof 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 Treasurer
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the Village 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 Treasurer may
require any utility to file an annual return, which shall contain
any data specified by it, regardless of whether the utility is subject
to tax under this section. 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 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.
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 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 Act of the State of New York
if application therefor is made within 90 days after the giving of
notice of such decision. The proceeding may not be commenced unless
the amount of any tax sought to be reviewed, with 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 applicant, such undertaking
may be in a sum sufficient to cover the tax, penalties, costs and
charges aforesaid, in which event the applicant shall not be required
to pay such tax and penalties as a condition precedent to the commencement
of the proceeding of such order. 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 had 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 in the last return filed
by him 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 on his 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 determination, the Village Treasurer
shall give notice thereof to the person interested, and he shall be
entitled to commence a proceeding to review said determination under
said Article 78, subject to the provisions hereinbefore contained
relative to the commencement of such a proceeding.
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 of the Tax Law of the State of New York
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 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 Article, and to subpoena and require the attendance of
witnesses and the production of books, papers and documents.
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 Ardsley
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. The officer charged with the custody
of such returns shall not be required to produce any of them as evidence
or anything contained in them in any action or proceeding in any court,
except on behalf of the Village of Ardsley in an 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, so much of said returns
or of the facts shown thereby, as are pertinent to the action or proceeding,
and no more. Nothing herein shall be construed to prohibit the delivery
to a person or his authorized representative of a copy of any return
filed by him 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 Ardsley 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. 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 Ardsley, 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 and deposited in the general fund of
the Village.
The remedy provided by this article for review
of a decision of the Village Treasurer shall be the exclusive remedy
available to any taxpayer to judicially determine the liability of
such taxpayer for taxes under this article.
