[Adopted 4-3-1956 as L.L. No. 1-1956]
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 January 1956 is hereby
imposed upon every utility doing business in the Village of East Rockaway,
which is subject to the supervision of the State Department of Public
Service, which has a gross income for the 12 months ending December
31 in excess of $500, except motor carriers or brokers subject to
such supervision under Article 3-B of the Public Service Law, and
a tax equal to 1% of its gross operating income from and after the
first day of January 1956 is hereby imposed upon every utility doing
business in the Village of East Rockaway, which has a gross operating
income for the 12 months ending December 31 in excess of $500, which
taxes shall have application only within the territorial limits of
the Village of East Rockaway 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 East Rockaway,
notwithstanding that some act shall 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 East Rockaway, 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 materials used, labor or services or other costs, interest
or discount paid or any other expense whatsoever, also profits from
the sale of securities, profits from the sale of real property growing
out of the ownership or use of or interest in such property, 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),
receipts from interest, dividends and royalties derived from sources
within the Village of East Rockaway, 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 East Rockaway 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, and
in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the village.
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, refrigerator, telephone or telegraph
service in the Village of East Rockaway, 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 rent, 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, 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.
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, telephony or telegraphy, delivered through mains,
pipes or wires, or furnishes gas, electric, steam, water, refrigerator,
telephone or telegraphy 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, 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 February, 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 East Rockaway 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 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 the Village Treasurer, 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. The Village Treasurer 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 one year 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. 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 Act, if application
wherefor is made to the Supreme Court within 90 days after the giving
of the 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 hereon 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 proceeding.
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 filing of a return; provided, however, that where no return
has been filed as required by this Article, the tax may be assessed
at anytime.
The same remedies shall be available for the
recovery of any tax or penalty imposed by this Article as are available
for the other taxes and penalties imposed by law.
Any notice authorized or requested 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, except 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.
A.
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 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 certiorari
proceeding that such determination was erroneous or illegal. All refunds
shall be made out of moneys collected under this Article, deposited
to the credit of the Village Treasurer, with the approval of the Village
Treasurer.
B.
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.
C.
Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the
refund thereof duly made to the proper fiscal officer or officers,
and such officer or officers shall have made a determination denying
such refund, such determination shall be reviewable by a proceeding
under Article 78 of the Civil Practice Act 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 proper fiscal
officer or officers 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.
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 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 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.
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 East
Rockaway, 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 East Rockaway, 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.
A.
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 East Rockaway 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 shall be an officer,
agent, clerk or employee of the Village of East Rockaway, he shall
be dismissed from office, and he shall be incapable of holding any
office or employment in the Village of East Rockaway 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 East Rockaway,
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.
The remedy provided by this article for review
of a decision of the Village Treasurer shall be the exclusive remedy
available to any taxpayer to judicially determine the liability of
such taxpayer for taxes under this article.
