[Adopted 5-13-1974 as Ch. 59 of the 1974 Code]
[Amended 8-14-1996 by L.L. No. 5-1996]
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 July 1961 is hereby
imposed upon every utility doing business in the Village of Albion
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, and a tax
equal to 1% of its gross operating income from and after the first
day of July 1961 is hereby imposed upon every other utility doing
business in the Village of Albion 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 Albion 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 Albion, notwithstanding that
some act be necessarily performed with respect to such transaction
within such limits.
[Amended 8-14-1996 by L.L. No. 5-1996]
As used in this article, the following terms
shall have the meanings indicated:
Include 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 this state, 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; provided, however, that "gross income"
with respect to a provider of telecommunication services shall not
include receipts from the sale of telecommunication services as such
services are defined in § 186-e of the Tax Law. "Gross income"
also includes 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 this state other than such
as are received from a corporation a majority of whose voting stock
is owned by the tax paying utility, without any deduction therefrom
for any expenses whatsoever incurred in connection with the receipt
thereof, also profits from any transaction (except sales for resale
and rentals) within this state whatsoever.
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 or refrigeration, or in or by reason
of the furnishing for such consumption or use of gas, electric, steam,
water or refrigerator service in this state, 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
companies or associations, partnerships and limited liability companies,
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, 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, and excepting
a corporation organized and operated exclusively for the purpose of
leasing from a city in this state a waterworks system designed to
supply water at cost to users thereof for discharge, either before
or after industrial use, into a river within such city in order to
improve the flow and condition of such river and thereby to provide
a means to relieve such river from pollution.
Shall have the same meaning as such term is defined in § 186-e
of the Tax Law.
Includes every person (including every provider of telecommunication
services) subject to the supervision of the State Department of Public
Service, except persons engaged in the business of operating on the
public highways of this state one or more omnibuses, having a seating
capacity of more than seven persons, and 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 or not such person
is subject to such supervision) who sells gas, electricity, steam,
water or refrigeration, delivered through mains, pipes or wires or
furnishes gas, electric, steam, water or refrigeration 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 a tax under this article
shall keep such records of its business and in such form as the Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Treasurer may consent to their destruction
within that period or may require that they be kept longer.
[Amended 8-14-1996 by L.L. No. 5-1996]
Every utility subject to tax hereunder shall
file annually, on or 15th of March, a return for the 12 calendar months
ending December 31 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 Treasurer on a form to be furnished by him or her for
such purpose and shall contain such other data, information or matter
as he or she may require to be included therein. The Treasurer, in
order to ensure payment of the tax imposed, may require any utility
doing business in the Village of Albion to file at any time a further
or supplemental return, which shall contain any data that may be specified
by him or her, and he or she may require any utility doing business
in the Village of Albion to file an annual return, which shall contain
any data specified by him or her, 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 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 Treasurer, and if a
corrected or sufficient return is not filed within 20 days after the
same is required by notice from him or her, or if no return is made
for any period, the Treasurer shall determine the amount of tax due
from such information as he or she is able to obtain, and if necessary,
may estimate the tax on the basis of external indices or otherwise.
He or she 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 for a hearing, or unless the Treasurer of his or her
own motion shall reduce the same. After such hearing, the Treasurer
shall give notice of his or her 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 and an
undertaking filed with him or her, 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 or persons at the address given in the last return
filed by such person or persons under this article, or, if no return
has been filed, then to such address as may be obtained from existing
directories or records. The mailing of such notice shall be presumptive
evidence of the receipt of the same by the person or persons 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, for causes
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 or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected,
the 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 Treasurer. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Treasurer as hereinbefore
provided unless the Treasurer, after a hearing as hereinbefore provided,
or of his or her 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 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 may receive
additional evidence with respect thereto. After making his or her
determination, the Treasurer shall give notice thereof to the person
interested, and he or she 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 cost 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, 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. 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 Treasurer
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary for the exercise of his
or her powers and the performance of his or her 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 or her 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,
or any agent, clerk or employee of the Village of Albion, 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 Albion 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 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 may assist
in the collection of such delinquent taxes; or the inspection by the
Village Attorney or other legal representatives of the Village of
Albion 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 be an officer,
agent, clerk or employee of the Village of Albion he or she shall
be dismissed from office and shall be incapable of holding any office
or employment in the Village of Albion for a period of five years
thereafter.
C.
Notwithstanding any provisions of this article, the
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 Albion, and provided
that such information is to be used for tax purposes only, and the
Treasurer shall, upon request, furnish the State Tax Commission with
any information contained in such returns.
All taxes and penalties received by the 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.
