[Adopted 8-28-1968 by Ord. No. 1-1968 as
Ch. 73 of the 1968 Code of the Village of Lindenhurst]
[Amended 6-16-1992 by L.L. No. 2-1992]
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 November 1950 is
hereby imposed upon every utility doing business in the Village of
Lindenhurst, 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 § 240 et seq. of the Transportation
Law, and a tax equal to 1% of its gross operating income from and
after the first day of November, 1950 is hereby imposed upon every
other utility doing business in the Village of Lindenhurst, 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 Lindenhurst 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 Lindenhurst,
notwithstanding that some act may be necessarily performed with respect
to such transaction within such limits.
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 Lindenhurst, 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 expenses whatsoever; also profit 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 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
Lindenhurst, 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 Lindenhurst 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 a local exchange
service wholly consummated within the Village of Lindenhurst and,
in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Lindenhurst.
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, 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 Lindenhurst, including cash, credits and
property of any kind or nature, within any 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 expenses whatsoever.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignee 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, telephone 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 a 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 annually, on or before the 25th day of March, 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
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 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, and he may require any utility doing
business in the Village of Lindenhurst to file an annual return, which
shall contain any data specified by him, 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 co-partner 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 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.
A.
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 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 penalty 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 is 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.
B.
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 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
causes 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 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
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 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 cost of such utility.
[Amended 6-16-1992 by L.L. No. 2-1992]
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 in accordance with
the New York State Tax Law.
In the administration of this article, the Village
Treasurer shall have the 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.
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 Lindenhurst
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 or evidence
of anything contained in them in any action or proceeding in any court,
except on behalf of the Village of Lindenhurst 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 an 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
any 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 duly 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 Lindenhurst
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.
B.
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 is an officer,
agent, clerk or employee of the Village of Lindenhurst, he shall be
dismissed from office and shall be incapable of holding any office
or employment in the Village of Lindenhurst for a period of five years
thereafter.
C.
Notwithstanding any provision 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 Lindenhurst 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 in the general fund
of the Village.
