[Amended 9-4-2001 by L.L. No. 2-2001]
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 1954 is hereby
imposed upon every utility doing business in the Village of Massena
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 of each year hereafter, in excess of $500, except motor carriers
or brokers subject to such supervision under Transportation Law § 240
et seq. and a tax equal to 1% of its gross operating income from and
after the first day of June 1954 is hereby imposed upon every other
utility doing business in the Village of Massena which has a gross
operating income, for the 12 months ending May 31 of each year hereafter,
in excess of $500, which taxes shall have application only within
the territorial limits of the Village of Massena, and shall be in
addition to any and all other taxes and fees imposed by any other
provision of law for the same period. Such taxes shall not be imposed
on any transaction originating or consummated outside of the territorial
limits of the Village of Massena, 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
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 be included in gross
income), made or service rendered ultimate consumption or use by the
purchaser in the Village of Massena, 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 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
Massena 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 Massena whatsoever;
provided, however, that the words "gross income" shall include, in
the case of a utility engaged in selling telephony or telephone service,
only receipt from local exchange service wholly consummated within
the Village of Massena, and in the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village of Massena.
GROSS OPERATING INCOME
Includes receipt 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 Massena, 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, association, joint-stock
association, copartnerships, estates, assignee of rents, any person
acting in 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 district.
UTILITY
Includes every person subject to the supervision of either
division 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 of furnished
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 the chapter
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 March, a return for the
12 calendar months preceding such return date, including any period
for which the tax imposed hereby or by any amendment hereof 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 return date, including any period
for which the tax imposed hereby or by any amendment hereof is 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 insure 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 Massena
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
be 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 for 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.
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 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 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 become due; but the Village Treasurer,
for cause shown, may extend the time for filing any return for a period
not exceeding 60 days, 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 it shall have established in a
proceeding under Article 78 of the Civil Practice Act of the State
of New York that such determination was erroneous or illegal. All
refunds shall be made out of money 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 this determination, the Village Treasurer
shall give notice thereof the person interested, and he shall be entitled
to an order to review such determination under said Article 78 subject
to the provisions therein before 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 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, report and other records relating to administration
and enforcement of the tax, to the testimony and proofs, under oath,
with reference to any matter within the line of this official duty
under this article, and to subpoena and require the attendance of
witnesses and the production of books, papers and documents.
All taxes and penalties received by the Village
Treasurer under this article shall be credited and deposited by him
in the general fund of the Village.