[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.
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.
A.
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:
(1)
Service paid for by inserting coins in coin-operated
telephones available to the public.
(2)
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.
(3)
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
A.
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.
B.
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:
A.
To make, adopt and amend rules and regulations appropriate
to the carrying out of this article and the purposes thereof.
B.
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.
C.
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.
D.
To delegate his functions hereunder to the Deputy
City Treasurer or other employee or employees of the City.
E.
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.
F.
To assess, reassess, determine, revise and readjust
the taxes imposed by this article.
A.
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.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
