[Adopted 8-8-1984 by L.L. No. 5-1984, approved 8-22-1984]
When used in this article, the following terms shall mean and
include:
Includes attached or annexed by adhesion, stapled or otherwise,
or a notation by stamp, imprint or writing.
The City of Mount Vernon.
The Comptroller of the City of Mount Vernon.
The price actually paid or required to be paid for the real
property or interest therein, without deduction for mortgages, liens
or encumbrances, whether or not expressed in the deed and whether
paid or required to be paid by money, property or any other thing
of value. It shall include the cancellation or discharge of an indebtedness
or obligation.
Any document, instrument or writing (other than a will),
regardless of where made, executed or delivered, whereby any real
property or interest therein is created, vested, granted, bargained,
sold, transferred, assigned or otherwise conveyed.
The person accepting the deed or who obtains any of the real
property which is the subject of the deed or any interest therein.
The person making, executing or delivering the deed.
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in an fiduciary or representative capacity,
whether appointed by a court or otherwise, any combination of individuals
and any other form of unincorporated enterprise owned or conducted
by two or more persons.
Every estate or right, legal or equitable, present or future,
vested or contingent, in lands, tenements or hereditaments which are
located in whole or in part within the City of Mount Vernon. It shall
not include a mortgage, a release of mortgage or a leasehold for a
stated term of years or part of a year. It shall not include rights
to sepulture.
[Amended 8-13-1986 by L.L. No. 4-1986, approved 8-26-1986]
A tax is hereby imposed on each deed at the time of delivery
by a grantor to a grantee when the consideration for the real property
and any improvement thereon, whether or not included in the same deed,
exceeds $100,000. The tax shall be at the rate of 1% of the consideration
in excess of $100,000. Where any real property is situated partly
within and partly without the boundaries of the City of Mount Vernon,
the consideration subject to tax shall be such part of the total consideration
attributable to that portion of such real property situated within
the City of Mount Vernon or to the interest in such portion.
For the purpose of the proper administration of this article
and to prevent evasion of the tax hereby imposed, it shall be presumed
that all deeds are taxable. Where the net consideration includes property
other than money, it shall be presumed that the consideration is the
value of the real property or interest therein. Such presumptions
shall prevail until the contrary is established, and the burden of
proving the contrary shall be on the taxpayer.
[Amended 9-27-2000 by L.L. No. 3-2000, approved 10-16-2000[1]]
The tax imposed hereunder shall be paid by the grantor to the
City of Mount Vernon within 30 days after the delivery of the deed
by the grantor to the grantee, but before the recording of such deed.
The grantee shall also be liable for the payment of such tax in the
event that the grantor is exempt from tax. Evidence of the payment
of the tax shall be affixed to the deed. The Comptroller may provide
for the use of stamps as evidence of payment and that they shall be
affixed to the deed before it is recorded.
[1]
Editor's Note: This local law provided that it take effect
1-1-2001 and that it shall not apply to a deed delivered pursuant
to a contract made prior to that effective date.
A.
A joint return shall be filed by both the grantor and the grantee
for each deed whether or not a tax is due thereon. Such return shall
be filed with the Comptroller at the time of payment of any tax imposed
hereunder or, in the case of a deed not subject to tax, before the
recording of such deed. Filing shall be accomplished by delivering
the return to the Comptroller. The Comptroller shall prescribe the
form of the return and the information which it shall contain. The
return shall be signed under oath by both the grantor or his agent
and the grantee or his agent. Where either the grantor or grantee
has failed to sign the return, it shall be accepted as a return, but
the party who has failed to sign the return or file a separate return
shall be subject to the penalties applicable to a person who has failed
to file a return and the period of limitations for assessment of tax
or of additional tax shall not apply to such party.
B.
Returns shall be preserved for three years and thereafter until the
Comptroller permits them to be destroyed.
C.
The Comptroller may require amended returns to be filed within 20
days after notice and to contain the information specified in the
notice.
D.
If a return required by this article is not filed or if a return,
when filed, is incorrect or insufficient on its face, the Comptroller
shall take the necessary steps to enforce the filing of such a return
or of a corrected return.
E.
Where a deed has more than one grantor or more than one grantee,
the return may be signed by any one of the grantors and by any one
of the grantees; provided, however, that those not signing shall not
be relieved of any liability for the tax imposed by this article.
A.
The following shall be exempt from the payment of the tax imposed
by this article and from filing a return:
(1)
The State of New York or any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant
to agreement or compact with another state) or political subdivisions.
(2)
The United States of America and any of its agencies and instrumentalities,
insofar as they are immune from taxation; provided, however, that
the exemption of such governmental bodies or persons shall not relieve
a grantee from liability for the tax or from filing a return.
B.
The tax imposed by this article shall not apply to any of the following
deeds:
(1)
A deed by or to the United Nations or other worldwide international
organizations of which the United States of America is a member.
(2)
A deed by or to any corporation or association, or trust or community
chest, fund or foundation organized and operated exclusively for religious,
charitable or educational purposes or for the prevention of cruelty
to children or animals, no part of the net earnings of which inures
to the benefits of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda or otherwise
attempting to influence legislation; provided, however, that nothing
in this subsection shall include an organization operated for the
primary purpose of carrying on a trade or business for profit, whether
or not all of its profits are payable to one or more organizations
described in this subsection.
(3)
A deed to any governmental body or person exempt from payment of the tax pursuant to Subsection A of this section.
(4)
A deed delivered pursuant to a contract made prior to the effective
date of this article.
(5)
A deed delivered by any governmental body or person exempt from payment of the tax pursuant to Subsection A of this section as a result of a sale at a public auction held in accordance with the provisions of a contract made prior to the effective date of this article.
(6)
A deed from a mere agent, dummy, straw man or conduit to his principal
or a deed from the principal to his agent, dummy, straw man or conduit.
If a return required by this article is not filed or if a return,
when filed, is incorrect or insufficient, the amount of tax due shall
be determined by the Comptroller from such information as may be obtainable,
including the assessed valuation of the real property or interest
therein. Notice of such determination shall be given to the person
liable for the tax. Such determination shall finally and irrevocably
fix the tax, unless the person against whom it is assessed, within
30 days after the giving of notice of such determination, shall apply
to the Comptroller for a hearing, unless the Comptroller of his own
motion shall redetermine the same. After such hearing, the Comptroller
shall give notice of his determination to the person against whom
the tax is assessed. The determination of the Comptroller shall be
reviewable for error, illegality or unconstitutionality of any other
reason whatsoever by a proceeding under Article 78 of the Civil Practice
Law and Rules if application therefor is made to the Supreme Court
within four months after the giving of the notice of such determination.
A proceeding under Article 78 of the Civil Practice Law and Rules
shall not be instituted unless:
A.
The amount of any tax sought to be reviewed, with penalties and interest
thereon, if any, shall be first deposited with the Comptroller and
there shall be filed with the Comptroller an undertaking, issued by
a surety company authorized to transact business in this state and
approved by the Superintendent of Insurance of this state as to solvency
and responsibility, 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 the proceeding;
or
B.
At the option of the applicant, such undertaking filed with the Comptroller
may be in a sum sufficient to cover the taxes, penalties and interest
thereon stated in such determination, plus the costs and charges which
may accrue against it in the prosecution of the proceeding, in which
event the applicant shall not be required to deposit such taxes, penalties
and interest as a condition precedent to the application.
A.
In the manner provided in this section, the Comptroller shall refund
or credit, without interest, any tax, penalty or interest erroneously,
illegally or unconstitutionally collected or paid if application to
the Comptroller for such refund shall be made within one year from
the payment thereof. Whenever a refund is made by the Comptroller,
he shall state his reason therefor in writing. Such application may
be made by the grantor, grantee or other person who has actually paid
the tax. The Comptroller may, in lieu of any refund require to be
made, allow credit therefor on payments due from the applicant.
B.
An application for a refund or credit made as herein provided shall
be deemed an application for a revision of any tax, penalty or interest
complained of, and the Comptroller may receive evidence with respect
thereto. After making his determination, the Comptroller shall give
notice thereof to the applicant, who shall be entitled to review such
determination by a proceeding pursuant to Article 78 of the Civil
Practice Law and Rules, provided that such proceeding is instituted
within four months after the giving of notice of such determination
and provided that a final determination of tax due was not previously
made. Such a proceeding shall not be instituted unless an undertaking
is filed with the Comptroller 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 proceeding.
C.
A person shall not be entitled to a revision, refund or credit, under this section, of a tax, interest or penalty which has been determined to be due pursuant to the provisions of § 234-50 of this article where he has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the Comptroller made pursuant to § 234-50 of this article, unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Comptroller after a hearing, or on his own motion, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event, refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
The remedies provided by §§ 234-50 and 234-51 of this article shall be exclusive remedies available to any person for the review of tax liability imposed by this article; and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than a proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Comptroller prior to the institution of such suit and posts a bond for costs as provided in § 234-50 of this article.
A.
Whenever any grantor or grantee shall fail to pay any tax, penalty
or interest imposed by this article as herein provided, the Corporation
Counsel shall, upon the request of the Comptroller, bring or cause
to be brought an action to enforce the payment of the same on behalf
of the City of Mount Vernon in any court of the State of New York
or of any other state or of the United States. If, however, the Comptroller,
in his discretion, believes that any such grantor or grantee subject
to the provisions of this article is about to cease business, leave
the state or remove or dissipate the assets out of which the tax or
penalty might be satisfied and that any such tax or penalty will not
be paid when due, he may declare such tax or penalty to be immediately
due and payable and may issue a warrant immediately.
B.
As an additional or alternate remedy, the Comptroller may issue a
warrant directed to the Sheriff of Westchester County commanding him
to levy upon and sell the real and personal property of the grantor,
grantee or other person liable for the tax which may be found within
the City for the payment of the amount thereof, with any penalty and
interest, and the cost of executing the warrant, and to return such
warrant to the Comptroller and to pay to him the money collected by
virtue thereof within 60 days after the receipt of such warrant. The
said Sheriff shall, within five days after the receipt of the warrant,
file with the Clerk of Westchester County a copy thereof, and thereupon
such Clerk shall enter in the judgment docket the name of the person
mentioned in the warrant and the amount of the tax, penalty and interest
for which the warrant is issued and the date when such copy is filed.
Thereupon, the amount of such warrant so docketed shall become a lien
upon the title to and the interest in real and personal property of
the person against whom the warrant is issued. The Sheriff shall then
proceed upon the warrant in the same manner, and with like effect,
as that provided by law in respect to executions issued against property
upon judgments of a court of record, and for services in executing
the warrant, he shall be entitled to the same fees, which he may collect
in the same manner. In the discretion of the Comptroller, a warrant
of like terms, force and effect may be issued and directed to an officer
or employee of the Department of Finance, and in the execution thereof
such officer or employee shall have all the powers conferred by law
upon sheriffs, but shall be entitled to no fee or compensation in
excess of the actual expenses paid in the performance of such duty.
If a warrant is returned not satisfied in fall, the Comptroller may,
from time to time, issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the City had recovered
judgment therefor and execution thereon had been returned unsatisfied.
In addition to the powers granted to the Comptroller in this
article, he is hereby authorized and empowered to:
A.
Make, adopt and amend rules and regulations appropriate to the carrying
out of this article and the purposes thereof.
B.
Extend, for cause shown, the time for filing any return for a period
not exceeding 90 days and, for cause shown, to remit penalties but
not interest computed at the rate of 18% per annum; and to compromise
disputed claims in connection with the taxes hereby imposed.
C.
Request information from the Tax Commission of the State of New York
or the Treasury Department of the United States relative to any person;
and to afford returns, reports and other information to such Tax Commission
or such Treasury Department relative to any person, any other provision
of this article to the contrary notwithstanding.
D.
Delegate his functions hereunder to the City Auditor or any employee
or employees of the Department of Finance.
E.
Prescribe the methods for determining the consideration attributable
to that portion of real property located partly within and partly
without the City of Mount Vernon which is located within the City
of Mount Vernon or any interest therein.
F.
Require any grantor or grantee to keep such records and for such
length of time as may be required for the proper administration of
this article and to furnish such records to the Comptroller upon request.
G.
Assess, determine, revise and adjust the taxes imposed under this
article.
A.
The Comptroller or his employees or agents duly designated and authorized
by him shall have power to administer oaths and take affidavits in
relation to any matter or proceeding in the exercise of their powers
and duties under this article. The Comptroller shall have power to
subpoena and require the attendance of witnesses and the production
of books, papers and documents to secure information pertinent to
the performance of his duties hereunder and of the enforcement of
this article and to examine them in relation thereto and to issue
commissions for the examination of witnesses who are out of the state
or unable to attend before him or excused from attendance.
B.
A Justice of the Supreme Court, either in court or at chambers, shall
have power summarily to enforce, by proper proceedings, the attendance
and testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the Comptroller
under this article.
C.
Any person who shall refuse to testify or to produce books or records
or who shall testify falsely in any material matter pending before
the Comptroller under this article shall be guilty of a misdemeanor,
punishment for which shall be a fine of not more than $1,000 or imprisonment
for not more than one year, or both such fine and imprisonment.
D.
The officers who serve the summons or subpoena of the Comptroller
and witnesses attending in response thereto shall be entitled to the
same fees as are allowed to officers and witnesses in civil cases
in courts of record, except as herein otherwise provided. Such officers
shall be the Sheriff of Westchester County and his duly appointed
deputies or any officers or employees of the Department of Finance,
designated to serve such process.
A.
Any person failing to file a return or to pay any tax within the
time required by this article shall be subject to a penalty of 8%
of the amount of tax due, plus interest at the rate of 1 1/2%
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 Comptroller, if satisfied that the delay was
excusable, may remit all or any part of such penalty, but not interest
at the rate of 1 1/2% per year. Such penalties and interest shall
be paid and disposed of in the same manner as other revenues from
this article. Unpaid penalties and interest may be enforced in the
same manner as the tax imposed by this article.
B.
Any grantor, grantee or officer of a corporation failing to file a return required by this article or filing or causing to be filed or making or causing to be made or giving or causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this article which is willfully false, and any grantor, grantee or officer of a corporation failing to keep the required by § 234-54F of this article, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.
C.
The certificate of the Comptroller to the effect that a tax has not
been paid or that information has not been supplied pursuant to the
provisions of this article shall be presumptive evidence thereof.
D.
Any person willfully simulating, altering, defacing, destroying or
removing any evidence of the filing of a return or the payment of
a tax provided for in this article shall be guilty of a misdemeanor,
punishment for which shall be a fine of not more than $1,000 or imprisonment
for not more than one year, or both such fine and imprisonment.
A.
Except in accordance with proper judicial order or as otherwise provided
by law, it shall be unlawful for the Comptroller or any officer or
employee of the Department of Finance to divulge or make known, in
any manner, any information contained in or relating to any return
provided for by this article. The officers 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 Comptroller in an action or proceeding under
the provisions of this article 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,
and may admit in evidence, so must 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 grantor or grantee of a deed or to any subsequent owner of the real
property conveyed by such deed or to the duly authorized representative
of any of them of a certified copy of any return filed in connection
with the tax on such deed; nor to prohibit the delivery of such a
certified copy of such return or of any information contained in or
relating thereto to the United States of America or any department
thereof, the State of New York or any department thereof, the City
of Mount Vernon or any department thereof, provided that the same
is required for official business; nor to prohibit the publication
of statistics so classified as to prevent the identification of particular
returns or items thereof.
B.
Any violation of Subsection A of this section shall be punishable by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, in the discretion of the court, and if the offender is an officer or employee of the City, he shall be dismissed from office and be incapable of holding any public office in this City for a period of five years thereafter.
A.
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
in the last return filed by him pursuant to the provisions of this
article, in any application made by him or in any deed which is the
subject of the notice, or, if no return has been filed or application
made or address stated in the deed, 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.
B.
The provisions of the Civil Practice Law and Rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the City to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this article. However, 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 provided
by law, the tax may be assessed at any time.
C.
Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a taxpayer has consented in writing
that such period be extended, the amount of such additional tax due
may be determined at any time within such extended period. The period
so extended may be further extended by subsequent consents in writing
made before the expiration of the extended period.
This article shall be construed and enforced in conformity with
Subdivision (b) of § 1205 of the Tax Law of the State of
New York, as authorized by Chapter 442 of the Laws of 1984.
If any provision or provisions of this article are held to be
invalid, ineffective, unconstitutional, in whole or in part, or inapplicable
to any person or situation, it is the purpose and intent of this article
that such determination shall not affect the validity, force and effect
of any other provisions thereof.
All revenues resulting from the imposition of the tax under
this article shall be paid into the treasury of the City and shall
be credited to and deposited in the general fund of the City.
This article shall take effect on September 1, 1984.
