[Adopted 9-12-1983 by L.L. No. 1-1983 as Art. I of Ch. 191
of the 1983 Code]
[Amended 1-21-1997 by L.L. No. 3-1997]
Pursuant to the authority granted by Article 5, § 5-530,
of the Village Law of the State of New York, from, on and after December
1, 1967, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility doing business
in the Incorporated Village of East Hills 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.
B. A tax equal to 1% of the gross operating income of every other utility
doing business in the Incorporated Village of East Hills 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 described in Subsections
A and
B of this definition:
(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 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 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, 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, 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 materials used, labor or services
or other costs, interest or discount paid or any other expense whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees of rents, any persons
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
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.
UTILITY
Includes:
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 or leasing railroads
other than street surface, rapid transit, subway and elevated railroads.
(3)
Omnibus corporations subject to supervision under Transportation
Law § 150 et seq.
[Amended 1-21-1997 by L.L. No. 3-1997]
B.
Every person who sells gas, electricity, steam, water, refrigeration,
telephony, telegraphy or television delivered through mains, pipes
or wires, whether or not such person is subject to the supervision
of the State Department of Public Service.
[Amended 1-21-1997 by L.L. No. 3-1997]
C.
Every person who furnishes gas, electric, steam, water, refrigerator,
telephone, telegraph or television 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 regardless of whether
use is made of the public streets.
[Amended 1-21-1997 by L.L. No. 3-1997]
This article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village of East Hills.
B. Not apply and the tax shall not be imposed on any transaction originating
or consummated outside of the territorial limits of the Village of
East Hills, notwithstanding that some act is necessarily performed
with respect to such transaction within such limits.
C. Be in addition to any and all other taxes and fees imposed by any
other provisions of law.
D. Apply to all subject income received on and after December 1, 1967.
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.
A. The Village Clerk shall be the chief enforcement officer of this
article and shall make and be responsible for all collections hereunder.
He or she shall also have the power and authority to make any rules
or regulations or directives, not inconsistent with law, which, in
his or her 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 Village Clerk. All such rules, regulations and directives shall
be deemed a portion of this article.
B. In addition to any other powers herein given, the Village Clerk,
in order to further ensure payment of the tax imposed hereby, shall
have the power to:
(1) Prescribe the form of all reports and returns required to be made
hereunder.
(2) Take testimony and proofs, under oath, with reference to any matter
hereby entrusted to him or her.
(3) Subpoena and require the attendance of witnesses and the production
of books, papers, records and documents.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Village Clerk may
require, and such records shall be preserved for a period of three
years unless the Village Clerk directs otherwise.
A. Time of filing. Every utility subject to a tax hereunder shall file
on or before March 25 and September 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. However,
any utility whose average gross income or gross operating income for
the aforesaid six-month period is less than $3,000 may file a return
annually on March 25 for the 12 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 Village Clerk to
file an annual return.
B. Contents. Returns shall be filed with the Village Clerk on a form
to be furnished by him or her 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
Clerk 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 Clerk 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.
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 Clerk, he or she may require at any
time a further or supplemental return, which shall contain any data
that may be specified by him or her, and, if a corrected or sufficient
return is not filed within 20 days after the same is required by notice
from him or her or if no return is made for any period, the Village
Clerk shall determine the amount 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. He or she shall give notice
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 or her for a hearing or unless
the Village Clerk, of his or her own motion, shall reduce the same.
After such hearing, he or she shall give notice of his or her 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 proceedings.
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 Village Clerk
or the court shall determine that such tax or penalty or any portion
thereof was erroneously or illegally collected, the Village Clerk
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
Clerk. However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Village Clerk as hereinbefore provided unless
the Village Clerk, 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 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 Clerk may receive additional evidence
with respect thereto. After making his or her determination, the Village
Clerk shall give notice thereof to the person interested, and he or
she 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 Village Clerk and
he or she 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 Village Clerk 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 proceedings.
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, however, that where no return has been filed as
required hereby, the tax may be assessed at any time.
A. 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 Village Clerk, if satisfied that the delay
was excusable, may remit all or any portion of such penalty.
B. 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 Clerk, 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 Clerk. 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.
C. In accordance with § 1825 of the Tax Law, any person who
violates this article shall be guilty of a misdemeanor.
[Added 1-21-1997 by L.L. No. 3-1997]