[Adopted 11-8-1968 by L.L. No. 1-1968]
Pursuant to the authority granted by Article
6, § 6-640 of the Village Law of the State of New York, from, on and after March 1, 1968, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Southampton (hereinafter
referred to as 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 Article 3-B of the Public Service
Law.
B. A tax equal to 1% of the gross operating income of
every other utility doing business in the said village which has an
annual gross operating income in excess of $500.
As used in this Article, the following terms
shall have the meanings indicated:
GROSS INCOME
Includes:
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 as described in Subsections
A and
B 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 deductions 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 be properly 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 of any expenses
whatsoever incurred in connection with the receipt 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, conditions
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, refrigeration, 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 the 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, 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, municipality,
public districts, 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.
UTILITY
Includes:
A.
Every person subject to the supervision of the
New York 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.
B.
Every person (whether or not such person is
subject to such supervision) engaged in the business of operating
one or more omnibuses having a seating capacity of more than seven
passengers.
C.
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, 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.
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 the territorial limits
of the village notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
C. Be in addition to any and all other taxes.
D. Apply to all such subject income received on and after
December 1, 1968.
All revenues resulting from the imposition of
the tax imposed by 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.
The Village 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, regulations and directives, not inconsistent with
law and subject to the approval of the Board of Trustees of said village,
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, regulations and directives as may
from time to time be promulgated shall be sent by the aforesaid Village
Treasurer by registered mail to all utilities subject to this Article
which register as such with the Village 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 Village
Treasurer may require, and such records shall be preserved for a period
of three years unless the Village Treasurer directs otherwise.
A. Time of filing. Every utility subject to a tax hereunder
shall file, on or before January 25 and July 25, a return for the
six calendar months next preceding each return date, including any
period for which the tax imposed hereby or any amendment hereof is
effective. However, any utility whose gross income or gross operating
income for the aforesaid six month period is less than $3,000 may
file a return annually on July 25 for the 12 calendar months next
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 Village Treasurer to file an annual return. Returns filed for
periods in 1968 shall exclude any income prior to December 1, 1968.
B. Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by him for such purpose and shall
show thereon the gross income or gross operating income for the period
covered by the return and such other information, data or matter as
the Village 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 Village Treasurer the
tax imposed hereby 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.
Any utility failing to file a return or a corrected
return or failing 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,
if satisfied that the delay was excusable, may, subject to the approval
of the Board of Trustees, 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 Village Treasurer,
he may require at any time a further 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 Village Treasurer shall determine the amount due from such available
information and, if necessary, may estimate the tax due on the basis
of external indices or otherwise. He shall thereupon 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 Village
Treasurer, on his own motion, shall reduce or amend 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 the tax sought
to be reviewed, with such interest and penalties thereon as may be
provided by local law, resolution or ordinance, 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 proceedings.
Any notice authorized or required under this
Article may be given by mailing the same to the intended utility,
in a postpaid envelope addressed to such utility at the address given
in the last return filed by it under this Article, or if no return
has been previously filed, then to such address as may be obtainable
elsewhere. The mailing of such notice shall be presumptive evidence
of the receipt of the same by the utility to which it is 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 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 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
or amended 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 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 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 duly made to the Village Treasurer, and he
has denied 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 if filed
with the Village Treasurer, 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 the intent to evade the tax, no assessment of 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, however, 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 Village Treasurer and in order to further ensure payment of the
tax imposed hereby, he shall have the power, subject to the approval
of the Board of Trustees, 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 all relevant books, papers, records and documents.
Whenever any person fails to pay any tax or
penalty imposed by this article, the Village Attorney shall, upon
the request of the Village Treasurer and with the approval of the
Board of Trustees, bring an action to enforce payment of said tax.
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 manner and to the same extent that the tax and penalty imposed
by § 186-a of the Tax Law of the State of New York is made
a lien.