[Adopted 11-19-1979 as Ch. 122, Art. I, of the 1979 Code]
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 October 1969 is hereby
imposed upon every utility doing business in the Village of Springville,
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 § 240 of the Transportation Law,
and a tax equal to 1% of its gross operating income from and after
the first day of October 1969 is hereby imposed upon every other utility
doing business in the Village of Springville, 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 Springville, 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
Springville, New York, 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:
GROSS INCOME
A.
In the case of a utility engaged in selling
telephony or telephone service, includes only receipts from local
exchange service wholly consummated within the Village of Springville,
New York.
B.
In the case of a utility engaged in selling
telegraphy or telegraph service, includes only receipts from transactions
wholly consummated within the Village of Springville, New York.
C.
In the case of any utility other than described
above, includes the following:
(1)
Receipts received in or by reason of any sale
made, 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 operating income), or service rendered
for ultimate consumption or use by the purchaser in the Village of
Springville, 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.
(2)
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
(3)
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.
(4)
Receipts from interest, dividends and royalties,
derived from sources within the Village of Springville, 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.
(5)
Profits from any transaction, except sales for
resale and rentals, within the Village of Springville, New York.
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 of Springville, 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.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assigns 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.
UTILITY
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,
telephony or telegraphy delivered through mains, pipes or wires or
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 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 Village
Clerk and 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 Clerk and 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 April 25 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 October 25, January 25, April 25 and July
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
Clerk and 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 Clerk and 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 Springville, 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 Springville
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 Clerk and 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 Clerk and 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 indexes 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 Clerk and Village Treasurer for
a hearing or unless the Village Clerk and Village Treasurer of his
own motion shall reduce the same. After such hearing, the Village
Clerk and 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 Clerk and 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 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
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 Clerk and 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 Clerk and Village Treasurer or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the Village Clerk and 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 Clerk
and Village Treasurer. However, no refund shall be made of a tax or
penalty paid pursuant to a determination of the Village Clerk and
Village Treasurer as hereinbefore provided unless the Village Clerk
and 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 Clerk and Village
Treasurer may receive additional evidence with respect thereto. After
making his determination, the Village Clerk and 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 Clerk and 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
Clerk and 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
Clerk and Village Treasurer or any agent, clerk or employee of the
Village of Springville, 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 Springville, 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 Clerk and
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 Springville, New York, 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 is an officer,
agent, clerk or employee of the Village of Springville, New York,
he shall be dismissed from office and shall be incapable of holding
any office or employment for the Village of Springville, New York,
for a period of five years thereafter.
C. Notwithstanding any provisions of this Article, the
Village Clerk and 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 Springville, New York, and provided that such information is to
be used for tax purposes only, and the Village Clerk and 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
Clerk and Village Treasurer under this Article shall be paid into
the treasury of the Village of Springville, New York, and shall be
credited to and deposited in the general fund of the village.