[Adopted 12-6-1967 by L.L. No. 1-1967]
Pursuant to the authority granted by § 6-640
of the Village Law of the State of New York, a tax equal to 1% of
its gross income from and after January 1, 1968, is hereby imposed
upon every utility doing business in the Village of Atlantic Beach
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, 1968, in excess of $500, except motor carriers or brokers subject
to such supervision under Article 3-b of the Public Services Law,
and a tax equal to 1% of its gross operating income from and after
January 1, 1968, is hereby imposed upon every other utility doing
business in the Village of Atlantic Beach which has a gross operating
income for the 12 months ending December 31, 1968, in excess of $500,
which taxes shall have application only within the territorial limits
of the Village of Atlantic Beach, 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 Atlantic
Beach, 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 Atlantic Beach, including
cash, credits and property of any kind or nature (whether or not such
sale is made or such service 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
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 Atlantic Beach 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 Atlantic Beach 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 Atlantic Beach, and in the case of a utility engaged in
selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village of Atlantic Beach.
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 Atlantic Beach, 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, 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 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 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
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 April, 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 April 25, July 25, October
25 and January 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 Atlantic Beach 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 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 him, 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.
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 90
days 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. Such decision may be reviewed by a proceeding under Article
78 of the Civil Practice Laws 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
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 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 the 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 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 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 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 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
hereinabove 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 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 commencement of such a 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.
A.
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 Atlantic
Beach 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 Atlantic Beach 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 proceedings,
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 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 Atlantic Beach 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 Atlantic Beach he shall
be dismissed from office, and shall be incapable of holding any office
or employment in the Village of Atlantic Beach 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 Atlantic Beach,
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.
