[Adopted 3-17-1969 by L.L. No. 1-1969]
[Amended 9-6-1993 by L.L. No. 4-1993]
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 June, 1969, is hereby
imposed upon every utility doing business in the Village of Penn Yan,
New York, which is subject to the supervision of the State Department
of Public Service, which has a gross income for 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,[1] and a tax equal to 1% of its gross operating income from
and after the first day of June, 1969, is hereby imposed upon every
other utility doing business in the Village of Penn Yan, New York,
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 Penn Yan, New York, 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 Penn Yan, New York, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
[1]
Editor's Note: Article 3-B of the Public Service
Law was repealed by Ch. 267 of the Laws of 1970; see now Articles
7 and 11 of the Transportation Law.
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 the 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 Penn Yan, New York, 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 expense whatsoever; 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 Penn Yan,
New York, 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 Penn Yan, New
York, 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 within the Village of Penn Yan, New York, and in the case
of a utility engaged in selling telegraphy or telegraph service, only
receipts from transactions wholly consummated within the Village of
Penn Yan, New York.
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 of Penn Yan, New York, 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 services 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 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 who furnishes gas, electricity, steam, water, refrigeration,
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 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 or as the Village Board may require, and such
records shall be preserved for a period of three years, except that
the Village Treasurer or the Village Board 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 February a return for the
12 calendar months ending the 31st day of December or 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 Penn
Yan, New York, 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 copartner 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 of Penn Yan 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 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 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 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
persons 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 of his own motion, shall have reduced
the tax or penalty or if 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 of the Civil Practice Law and Rules of the State of New York, subject
to the provision 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 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 Board, 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-a of the Tax Law 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.
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 Penn Yan,
New York, 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 Penn Yan, New York, 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 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 representative of the Village
of Penn Yan, New York, of the return of any person who shall bring
action to set aside or review the tax based thereof 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 Penn Yan, New York, he
shall be dismissed from office and shall be incapable of holding any
office or employment for the Village of Penn Yan, New York, for a
period of five years thereafter.
C.
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 Penn Yan, New
York, 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 of Penn Yan, New York, and shall be credited to and deposited
in the general fund of the Village.