[Adopted 8-28-1995 by L.L. No. 2-1995]
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 January 1959, is
hereby imposed upon every utility doing business in the Village of
Colonie, which is subject to the supervision of the State Department
of Public Service and which has a gross income for the 12 months ending
December 31 in excess of $500, except motor carriers or brokers subject
to such supervision under Article 3-b of the Public Service Law;[1] and a tax equal to 1% of its gross operating income from
and after the first day of January 1959, is hereby imposed upon every
utility doing business in the Village of Colonie which has a gross
operating income for the 12 months ending December 31 in excess of
$500, which taxes shall have application only within the territorial
limits of the Village of Colonie 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 Colonie, notwithstanding
that some act is necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: Article 3-b of the Public Service
Law was repealed by L. 1970, c. 267. For current provisions, see § 240
of the Transportation Law.
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 Colonie, 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 service or other costs, interest or discount
paid or any other expense whatsoever; provided, however, that "gross
income" with respect to the sale of telephony or telegraphy or the
furnishing of telephone or telegraph service shall include receipts
received in or by reason of all sales made or service furnished in
the Village of Colonie (whether or not for ultimate consumption or
use by the purchaser); but if telephony, including carrier access
service, or telegraphy which is sold in the Village of Colonie by
a utility or telephone service, including carrier access service,
or telegraph service which is furnished in the Village of Colonie
by a utility is then resold by the purchaser with respect to such
a sale, there shall be allowed a deduction from the receipts of such
purchaser from the resale of the amount paid to his seller or furnisher
for such telephony or telegraphy or telephone or telegraph service.
For the purpose of such deduction, the fact that an interexchange
carrier which has purchased carrier access service for resale is not
able to specifically identify and separate the portion of such service
which was actually resold in a particular sale of telephone service
to its customers shall not be grounds to disallow such deductions.
"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 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
Colonie 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; also profits from any transaction (except
sales for resale and rentals) within the Village of Colonie 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, 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 Colonie, 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 material used, labor
or services or other costs, interest or discount paid or any other
expenses whatsoever; provided, however, that "gross operating income"
with respect to the sale of telephony or telegraphy or the furnishing
of telephone or telegraph service shall include receipts received
in or by reason of all sales made or service furnished in the Village
of Colonie (whether or not for ultimate consumption or use by the
purchaser); but, if telephony, including carrier access service, or
telegraphy which is sold in the Village of Colonie by a utility or
telephone service, including carrier access service, or telegraph
service which is furnished in the Village of Colonie by a utility
is then resold by the purchaser with respect to such a sale, there
shall be allowed a deduction from the receipts of such purchaser from
the resale of the amount paid to his seller or furnisher for such
telephony or telegraphy or telephone or telegraph service. For the
purpose of such deduction, the fact that an interexchange carrier
which has purchased carrier access service for resale is not able
to specifically identify and separate the portion of such service
which was actually resold in a particular sale of telephone service
to its customers shall not be grounds to disallow such deductions.
Includes any seller of telephone service between two or more
exchanges that qualifies as a common carrier within the meaning of
Subsection H § 153 of Title 47 of the United States Code
or, if performing intrastate telephone service only, that would otherwise
qualify but for the fact that it was not engaged in providing interstate
or foreign telephone service.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees 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.
Includes every person subject to the supervision of the State
Department of Public Service, except persons engaged in the business
of operating on the public highways of the Village of Colonie 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 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 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, on or before March 15 of each year, a return for the year ended
on the preceding December 31, 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 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 Colonie 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 the 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 the Village Treasurer 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 indexes
or otherwise. The Village Treasurer 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 one year 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. Any final determination of the amount
of any tax payable hereunder shall be reviewable for error, illegality
or unconstitutionality or any other reason whatsoever by a proceeding
under Article 78 of the Civil Practice Laws and Rules, if application
therefor is made to the Supreme Court within 90 days after the giving
of the notice of such final determination; provided, however, that
any such proceeding under said Article 78 shall not be instituted
unless the amount of any tax sought to be reviewed, with such interest
and penalties hereon as may be provided for by local law, ordinance
or resolution, shall be first deposited and an undertaking filed 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 petitioner will pay all costs and charges
which may accrue in the prosecution of such proceeding.
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 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.
The same remedies shall be available for the
recovery of any tax or penalty imposed by this Article as are available
for the other taxes and penalties imposed by law.
Any notice authorized or requested 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, except 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 giving of notice
of any determination or assessment of any tax or penalty, the person
liable for the tax 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 been established in a certiorari
proceeding that such determination was erroneous or illegal. All refunds
shall be made out of moneys collected under this Article, deposited
to the credit of the Village Treasurer, with the approval of the Village
Treasurer. 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 his determination, the Village
Treasurer shall give notice thereof to the person interested. Where
any tax imposed hereunder shall have been erroneously, illegally or
unconstitutionally collected and application for the refund thereof
duly made to the proper fiscal officer or officers and such officer
or officers shall have made a determination denying such refund, such
determination shall be reviewable by a proceeding under Article 78
of the Civil Practice Laws and Rules; provided, however, that such
proceeding is instituted within 90 days after the giving of the notice
of such denial, that a final determination of tax due was not previously
made and that an undertaking is filed with the proper fiscal officer
or officers 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 petitioner will pay all costs
and charges which may accrue in the prosecution of such 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.
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.
