[Adopted 5-14-1969 by L.L.
No. 3-1969]
Pursuant to the authority granted by § 6-640 of the Village
Law of the State of New York,[1] 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 Manorhaven which is subject to the supervision of the State Department
of Public Service and which has a gross income for the 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,[2] 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 Manorhaven 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 Manorhaven 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 Manorhaven,
notwithstanding that some act 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 Manorhaven, 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 securities; also profits from the sale of real property growing
out of the ownership or use of or interest in such property; also profits
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 Manorhaven 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
expense whatsoever incurred in connection with the receipt thereof; and also
profits from any transaction (except sales for resale and rentals) within
the Village of Manorhaven 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 Manorhaven, and in the case of a utility engaged in
selling telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village of Manorhaven.
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 Manorhaven, including cash, credits and property of any kind or nature,
without any deductions 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, 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, 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 of operating railroads other
than street surface, rapid transit, subway and elevated railroads, and bus
service, 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 who furnishes
gas, electric, steam, water, refrigerator, 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 of 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 Treasurer of the village may require,
and such records shall be preserved for a period of three years, except that
the Treasurer of the village may consent to their destruction within that
period or may require that they be kept longer.
A.
Every utility subject to tax hereunder shall file, on
or before September 25, December 25, March 25 and June 25, a return for the
three calendar months preceding each such return date, including any period
for which the tax imposed hereby or by any amendment hereof is effective,
each of which returns shall state the gross income or gross operating income
for the period covered by each such return.
B.
Returns shall be filed with the Treasurer of the village
on a form to be furnished by him for such purpose and shall contain such other
data, information or matter as the Treasurer of the village may require to
be included therein.
C.
Notwithstanding the foregoing provisions of this section,
any utility whose average gross income or average gross operating income,
as the case may be, for the aforesaid three months' period is less than $1,500,
may file a return annually on June 25 for the 12 preceding calendar months,
and the Treasurer of the village may require any utility 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.
D.
Every return shall have annexed thereto a certification
by the head of the utility making the same, or by the owner or a copartner
thereof, or by 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 Treasurer of the village 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 Treasurer of the village 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
Treasurer of the village 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 Treasurer
of the village for a hearing, or unless the Treasurer of the village, of his
own motion, shall reduce the same. After such hearing, the Treasurer of the
village 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 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 Treasurer of the village 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 be 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 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 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 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, excepting the first month, after
such return was required to be filed or such tax became due; but the Treasurer
of the village, 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 Treasurer of the
village or the court shall determine that such tax or penalty or any portion
thereof was erroneously or illegally collected, the Treasurer of the village
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 Treasurer of the
village. However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Treasurer of the village as hereinbefore provided,
unless the Treasurer of the village, 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 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
Treasurer of the village may receive additional evidence with respect thereto.
After making his determination, the Treasurer of the village shall give notice
thereof to the person interested, and he shall be entitled to an order to
review such determination under said Article 78, subject to the provisions
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 Treasurer
of the village, bring an action to enforce payment of the same. The proceeds
of any judgment obtained in any such action shall be paid to the Treasurer
of the village. 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 § 1432[1] are made a lien.
[1]
Editor's Note: Section 1432 of the Real Property Tax Law.
In the administration of this article, the Treasurer of the village
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 Treasurer of the village
or any agent, clerk or employee of the Village of Manorhaven 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 Manorhaven
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, 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.
B.
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
Treasurer of the village, may assist in the collection of such delinquent
taxes; nor to prohibit the inspection by the Village Attorney or other legal
representatives of the Village of Manorhaven 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.
C.
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 Manorhaven, he shall be dismissed from office
and shall be incapable of holding any office or employment in the Village
of Manorhaven for a period of five years thereafter.
D.
Notwithstanding any provisions of this article, the Treasurer
of the village 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 Manorhaven, and provided that such information
is to be used for tax purposes only, and the Treasurer of the village shall,
upon request, furnish the State Tax Commission with any information contained
in such returns.
All taxes and penalties received by the Treasurer of the village 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.