[Adopted 7-18-1983 by L.L. No. 2-1983 as Ch. X, Art. VI, Div. 2, of the 1983 Code]
When used in this article the following terms shall mean or include:
- The amount of the consideration for property or service subject to tax under this article, whether receivable in money or otherwise, including all receipts, cash, credits and property of any kind or nature and all fixed charges incidental thereto.
- CITY TREASURER
- The City Treasurer of this City.
- Includes an individual, partnership, society, association, joint-stock company, corporation, estate, receiver, trustee, assignee, referee, or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of individuals.
- A person who purchases property or to whom are rendered services, the use or consumption of which is subject to the tax imposed by this article.
- Includes any return filed or required to be filed as herein provided.
- A person selling property or rendering services, the use or consumption of which is subject to the tax imposed by this article.
Commencing January 1, 1965, there shall be paid by the purchaser and collected by the vendor a tax at the rate of 3% of the charge for the consumption or use within this City of the following: gas, electricity, refrigeration, steam, and gas, electric, refrigeration or steam service of whatsoever nature for domestic or commercial use, and telephony and telegraphy and telephone or telegraph service of whatsoever nature except:
Service paid for by inserting coins in coin-operated telephones available to the public.
Transactions by or with this City, the County of Albany, the State of New York, or municipality or other political subdivision of the state where it is the purchaser, user or consumer and, also, by or with the United States insofar as it is immune from taxation.
Transactions by or with organizations contributions to which are deductible in computing personal income taxes as provided in Article 22 of the Tax Law of the State of New York.
Telephone or telegraph service shall be deemed used or consumed within the City if such services originate within this City, or, in the case of collect messages, terminate within this City, except that where the services rendered include the furnishing to subscribers located in this City of service such as stock market quotations, baseball scores, racing results and similar services, such services are subject to the tax imposed by this article irrespective of the City in which such services may originate.
Upon each charge to a purchaser for property or service subject to tax under this article the tax to be collected by the vendor shall be stated and charged separately therefrom; provided, however, that the City Treasurer shall permit a vendor to combine the charge and the tax if the bill to the purchaser indicates a method of determining the amount of the tax and if the vendor maintains records satisfactory to the City Treasurer showing such tax. The tax shall be paid by the purchaser to the vendor as trustee for and on account of this City and the vendor shall be liable for the collection thereof. The vendor shall be personally liable for the tax collected under this article, and the vendor shall have the same right in respect to collecting the tax from the purchaser or in respect to nonpayment of the tax by the purchaser, as if the tax were a part of the charge.
Where the purchaser has failed to pay and a vendor has failed to collect a tax imposed by this article, then in addition to all other rights, obligations and remedies provided, such tax shall be payable by the purchaser directly to the City Treasurer and it shall be the duty of the purchaser to file a return thereof with the City Treasurer and to pay the tax imposed thereon to the City Treasurer within 30 days after the bill to the purchaser is rendered.
The City Treasurer may, whenever he deems it necessary for the proper enforcement of this article, provide by regulation that the purchaser shall file returns and pay directly to the City Treasurer the tax herein imposed at such times as returns are required to be filed and payment over made by the vendor.
The tax imposed by this article shall be paid with respect to charges for property or services used or consumed on or after January 1, 1965, although made under a contract dated prior to said date. Where property is sold or service rendered on a periodic, monthly or other term basis, the bill for such property or service for such month or other term shall be a charge subject to the tax hereby imposed and the tax shall become applicable upon all bills based on meters read on or after a day after the first day of January 1965, which is 1/2 of the number of days of such normal periodic term basis; provided, however, that where such bills are for telephone or telegraph service the tax shall apply to all charges on such bills dated on or after January 1, 1965, for which no previous bill was rendered, excepting, however, charges for services furnished before the date on the first of such bills. Where the charge has been ascertained to be worthless, the amount thereof may be deducted by the vendor in computing charges subject to tax or, in case the tax has been paid, a credit or refund of the amount of the tax may be allowed under regulation of the City Treasurer.
For the purpose of proper administration of this article and to prevent evasion of the tax hereby imposed, it shall be presumed that all amounts received by a vendor from any property or service of a kind specified in § 333-84A of this article are subject to tax until the contrary is established, and the burden of proving that any such amount is not taxable hereunder shall be upon the vendor or the purchaser.
The City Treasurer shall by regulation prescribe a method or methods or a schedule or schedules of the amounts to be collected from purchasers in respect to any charge for property or service with respect to which a tax is imposed by this article so as to eliminate fractions of $0.01.
Every vendor shall keep records of charges, of the tax payable thereon and records of purchases of property or services of a kind subject to tax under this article in such form as the City Treasurer may by regulation require. Such records shall be available for inspection and examination at any time upon demand by the City Treasurer or his duly authorized agent or employee and shall be preserved for a period of three years, except that the City Treasurer may consent to their destruction within that period or may require that they be kept longer.
Every vendor shall file with the City Treasurer a return of the taxes payable for the quarterly periods ending March 31, June 30, September 30 and December 31 of each year. Such returns shall be filed within 30 days from the expiration of the period covered thereby. The City Treasurer may permit or require a return to be made for shorter or longer periods and upon such dates as he may specify.
The form of the return shall be prescribed by the City Treasurer and shall contain such information as he may deem necessary for the proper administration of this article. The City Treasurer may require amended returns to be filed within 20 days after notice and to contain the information specified in the notice.
If a return required by this article is not filed or if a return when filed is incorrect or insufficient on its face the City Treasurer shall take the necessary steps to enforce the filing of such a return or of a corrected return.
At the time of filing a return each vendor shall pay to the City Treasurer the taxes imposed by this article, as well as all other moneys collected by the vendor acting or purporting to act under the provisions of this article. All the taxes for the period for which a return is required to be filed shall be due from the vendor and payable to the City Treasurer on or before the date fixed for the filing of the return of such period, without regard to whether a return is filed or whether the return which is filed correctly shows the amount of the taxes due.
If a return required by this article is not filed, or if a return when filed is incorrect or insufficient, the amount of tax due shall be assessed by the City Treasurer from such information as may be obtainable. If a purchaser refuses to pay the tax imposed by this article or if for any reason it is impossible for the vendor to collect the tax from the purchaser, the vendor shall report to the City Treasurer the name and address of such purchaser, the nature of the property sold or service rendered, and the amount charged therefor. Upon receipt of such information the City Treasurer shall forthwith assess such tax directly against such purchaser. Written notice of such assessment shall be given to the person liable for the collection or payment of the tax. Such assessment shall finally and irrevocably fix and determine the tax unless the person against whom it is assessed within 90 days after the giving of notice of such assessment shall apply in writing to the City Treasurer for a hearing or unless the City Treasurer, on his own motion, shall reassess the same. After such hearing the City Treasurer shall give written notice of his determination to the person against whom the tax is assessed. The determination of the City Treasurer shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under Article 78 of the Civil Practice Law and Rules if application therefor is made to the Supreme Court within (90) days after the giving of the notice of such determination. A proceeding under Article 78 of the Civil Practice Law and Rules shall not be instituted unless the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the City Treasurer and an undertaking filed with the City Treasurer, 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 petitioner will pay all costs which may accrue in the prosecution of the proceeding.
In the manner provided in this article, the City Treasurer shall refund or credit any tax erroneously, illegally or unconstitutionally collected if written application to the City Treasurer for such refund shall be made within two years from the payment thereof. For like cause and within the same period a refund may be so made on the initiative and order of the City Treasurer. Whenever a refund is made, the reasons therefor shall be stated in writing. Such application may be made by the person upon whom such tax was imposed and who has actually paid the tax. Such application may also be made by a vendor who has collected and paid such tax to the City Treasurer, provided that the application is made within two years of the payment by the purchaser to the vendor, but no refund of money shall be made to the vendor until he shall first establish to the satisfaction of the City Treasurer, under such regulations as the City Treasurer may prescribe, that he has repaid to the purchaser the amount for which the application for refund is made. The City Treasurer, in lieu of any refund required to be made, may allow credit therefor on payments due from the applicant.
An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax of the notice of such determination and provided that a final determination of tax was not previously made. Such proceeding shall not be instituted unless an undertaking is filed with the City Treasurer 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 petitioner will pay all costs which may accrue in the prosecution of such proceeding.
Whenever any vendor or any purchaser or other person shall fail to collect and pay over any tax or to pay any tax, penalty or interest imposed by this article as therein provided, the Corporation Counsel shall, upon the request of the City Treasurer, bring an action to enforce the payment of the same. If, however, the City Treasurer believes that any such vendor, purchaser or other person subject to the provisions of this article is about to cease business, leave the state, or remove or dissipate assets, or for any other similar reason he deems it necessary in order to protect revenues under this article, he may declare such tax or penalty to be immediately due and payable and may issue a warrant immediately.
As an additional or alternative remedy, where the tax shown to be due upon a return is not paid at the time of filing such return, or an assessment of tax made under § 333-89 of this article is not paid, where the City Treasurer believes that any vendor, purchaser or other person subject to the provisions of this article is about to cease business, leave the state, or remove or dissipate assets, penalty or interest complained of and the City Treasurer may receive evidence with respect thereto. After making his determination the City Treasurer shall give notice thereof to the applicant who shall be entitled to review such determination by a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided that such proceeding is instituted within 90 days after the giving or for any other similar reason he deems it necessary in order to protect revenue under this article, he may issue a warrant, directed to the Sheriff of this county commanding him to levy upon and sell the real and personal property of the person liable for the tax which may be found within this county, for the payment of the amount thereof, with any penalties and interest, and the cost of executing the warrant, and to return such warrant to the City Treasurer and to pay to him the money collected by virtue thereof within 60 days after the receipt of such warrant. The Sheriff shall within five days after the receipt of the warrant file with the County Clerk a copy thereof, and thereupon such Clerk shall enter in the judgment docket the name of the person mentioned in the warrant and the amount of the tax, penalties and interest for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to and interest in real and personal property of the person against whom the warrant is issued. The Sheriff shall then proceed upon the warrant in the same manner, and with like effect, as that provided by law in respect to executions issued against property upon judgments of a court of record ,and for services in executing the warrant he shall be entitled to the same fees, which he may collect in the same manner. In the discretion of the City Treasurer a warrant of like terms, force and effect may be issued and directed to any officer or employee of this City, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. If a warrant is returned not satisfied in full, the City Treasurer may from time to time issue new warrants and shall, also, have the same remedies to enforce the amount due thereunder as if the City had recovered judgment therefor and execution thereon had been returned unsatisfied.
In addition to all other powers granted to the City Treasurer, he is hereby authorized and empowered:
To make, adopt and amend rules and regulations appropriate to the carrying out of this article and the purposes thereof.
To extend, for cause shown, the time of filing any return for a period not exceeding 60 days, and for cause shown, to waive, remit or reduce penalties or interest.
To request information from the Department of Taxation and Finance or the Department of Public Services of the State of New York or the officials of any political subdivision of this state or Treasury Department of the United States relative to any person; and to afford information to such departments, officials or Treasury Department relative to any person, any other provision of the article to the contrary notwithstanding.
To delegate his functions hereunder to the Deputy City Treasurer or other employee or employees of the City.
To prescribe methods for determining the charges for property or services subject to tax under this article or for the classification of such charges as taxable or nontaxable.
To assess, reassess, determine, revise and readjust the taxes imposed by this article.
The City Treasurer or his employees or agents duly designated and authorized by him in writing shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of his powers and duties under this article. The City Treasurer shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of his duties hereunder and of the enforcement of this article and to examine them in relation thereto.
A Justice of the Supreme Court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of book, paper and documents called for by the subpoena of the City Treasurer under this article.
Any person who shall refuse to testify or to produce books or records or who shall testify falsely in any material matter pending before the City Treasurer shall be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.
The officers who serve the City Treasurer's summons or subpoena and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the County Sheriff and his duly appointed deputies or any officers or employees of this City designated to serve such process.
Any person who, without intent to evade the tax imposed by this article, fails to pay the tax when due shall pay interest at the rate of 6% per annum from the due date of the tax to the date of payment, or to the 10th day after the date of the notice of assessment of such tax, whichever date is earlier. If such tax is assessed and is not paid within 10 days from the date of the notice of assessment, such person, in addition to such interest, shall pay a penalty of 5% of the amount of tax due plus interest at the rate of 1% of such tax for each full month after the date of the notice of assessment during which the tax remains unpaid.
Any person who, with intent to evade the tax imposed by this article, fails to pay the tax when due, shall pay a penalty equal to the amount of tax due plus interest at the rate of 1% of such tax for each full month from the due date of the tax to the date of payment.
Any vendor or purchaser willfully failing to file a return required by this article, or filing or causing to be filed or making or giving or causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this article, which is willfully false, and any vendor failing to keep records required by this article shall be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.
The certificate of the City Treasurer to the effect that a tax has not been paid or that information has not been supplied pursuant to the provisions of this article shall be presumptive evidence thereof.
Except in accordance with proper judicial order, or as otherwise provided by law, it shall be unlawful for the City Treasurer or any officer or employee of this City to divulge or make known in any manner the charges, receipts, expenses or other information relating to or contained in any return under this article. The officers 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 City in an action or proceeding under the provisions of this article, 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 courts may require the production of, and may admit in evidence, so much of said returns or of the facts shown thereby, as is pertinent to the action or proceeding and no more. Nothing herein shall be construed to prohibit the delivery to the taxpayer or his authorized representative of a certified copy of any return filed in connection with his tax nor to prohibit the publication of statistics so classified as to prevent the identification of particular returns and the items thereof, or the inspection by the Corporation Counsel or other legal representatives of the City of the return of any taxpayer who shall bring legal action to set aside or review the tax based thereon, or against whom an action or proceeding under this article may be instituted. Returns shall be preserved for three years and thereafter until the City Treasurer permits them to be destroyed.
It shall be a misdemeanor to violate any provision of this section, and if the offender be an officer or employee of the City he shall be dismissed from office and be incapable of holding any public office or employment in the City for a period of five years thereafter.
Any notice authorized or required under the provisions of this article shall be in writing and shall be served personally or by mailing the same to the person for whom it is intended in a postpaid envelope addressed to such person at the address given in the last return filed by him pursuant to the provisions of this article or in any application made by him, or if no return has been filed or application made, 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.
The provisions of the Civil Practice Law and Rules or any other law relative to limitations of time for the enforcement of a civil remedy shall not apply to any proceeding or action taken by this City to levy, appraise, assess, determine or enforce the collection of any tax or penalty provided by this article. However, 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 provided by law the tax may be assessed at any time.
Where, before the expiration of the period described herein for the assessment of an additional tax, a taxpayer has consented in writing that such period be extended, the amount of such additional tax due may be determined at any time within such extended period. The period so extended may be further extended by subsequent consents in writing made before the expiration of the extended period.
Moneys collected from taxes imposed by this article shall be paid into the treasury of the City and shall be credited to and deposited in the general fund thereof and shall be available for any City purpose and shall constitute a portion of the budgetary estimated revenues. Expenditures from the proceeds of the tax hereby imposed shall not be considered as part of the cost of government within the meaning of any limitation on expenditures contained in existing laws.
This article shall be construed and enforced in conformity with Chapter 278 of the Laws of 1947, as amended by Chapter 651 of the Laws of 1948 and Chapter 742 of the Laws of 1952, pursuant to which it is enacted.