[Adopted 6-30-1950 as L.L. No. 1-1950,
effective 6-30-1950]
Pursuant to the authority granted by § 138-d
of the Village Law of the State of New York, a tax equal to 1% of its gross income from June 1, 1950,
is hereby imposed upon every utility doing business in the Village
of Mamaroneck which is subject to the supervision of the State Department
of Public Service, which has a gross income for 12 months, ending
May 31, in excess of $500, except motor carriers or brokers subject
to such supervision under Article 3-B of the Public Service Law, and
a tax equal to 1% of its gross operating income is hereby imposed
from June 1, 1950, upon every other utility doing business in the
Village of Mamaroneck which has a gross operating income for 12 months,
ending May 31, in excess of $500, which taxes shall have application
only within the territorial limits of the Village of Mamaroneck and
shall be in addition to any and all other taxes and fees imposed by
any other provision of law for the same period. Such taxes shall not
be imposed on any transaction originating or consummated outside of
the territorial limits of the Village of Mamaroneck, notwithstanding
that some act is necessarily performed with respect to such transaction
within such limits.
As used in this Article, the following terms
shall have the meanings indicated:
GROSS INCOME
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 Mamaroneck, 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
the materials used, labor or services or other costs, interest or
discount paid or any other expense whatsoever; also 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 the Village of Mamaroneck 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 Mamaroneck whatsoever. Notwithstanding any other
provision of this Article or of § 186-a of the Tax Law,
the words "gross income" shall include:
A.
In the case of a utility engaged in selling
telephony or telephone service, only receipts from local exchange
service wholly consummated within the village.
B.
In the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the village.
GROSS OPERATING INCOME
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 Mamaroneck, 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.
PERSON
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.
UTILITY
Includes every person subject to the supervision of either
division of the State Department of Public Service, except persons
engaged in the business of operating or leas-ing 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 Treasurer-Clerk
may require, and such records shall be preserved for a period of three
years, except that the Treasurer-Clerk may consent to their destruction
within that period or may require that they be kept longer.
[Amended 2-25-1952 by L.L. No. 1-1952,
effective 3-3-1952]
Every utility subject to tax hereunder shall
file annually, on or before the 25th day of February, 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, including any
period for which the tax imposed hereby or by any amendment hereof
is effective, each of which returns shall state the gross income or
gross operating income for the period covered by each such return.
Returns shall be filed with the Treasurer-Clerk of the village on
a form to be furnished by him for such purpose and shall contain such
other data, information or matter as the Treasurer-Clerk may require
to be included therein. Notwithstanding the foregoing provisions of
this section, any utility whose average gross income or average operating
income, as the case may be, for the aforesaid three months' periods
is less than $1,500 may file its returns for such periods on June
25, 1951. The Treasurer-Clerk, 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 the Treasurer-Clerk.
Every return shall have annexed thereto an affidavit of the head of
the utility making the same or of the owner or of the copartner thereof
or of the principal officer of 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 Treasurer-Clerk 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.
In case any return filed pursuant to this Article
shall be insufficient or unsatisfactory to the Treasurer-Clerk and
if a corrected or sufficient return is not filed within 20 days after
the same is required by notice from the Treasurer-Clerk or if no return
is made for any period, the Treasurer-Clerk 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 Treasurer-Clerk 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-Clerk for a hearing or unless the Treasurer-Clerk,
of his own motion, shall reduce the same. After such hearing, the
Treasurer-Clerk shall give notice of his decision to the person liable
for the tax. The decision of the Treasurer-Clerk may be reviewed by
certiorari if application therefor is made within 30 days after the
giving of notice of such decision. An order of certiorari shall not
be granted unless the amount of any tax sought to be reviewed, with
penalties thereon, if any, shall be first deposited with the Treasurer-Clerk
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 order is dismissed or the tax confirmed, the applicant for
the order will pay all costs and charges which may accrue in the prosecution
of the certiorari proceeding, or, at the option of the applicant,
such undertaking may be in a sum sufficient to cover the tax, penalties,
costs and charges aforesaid, in which event the applicant shall not
be required to pay such tax and penalties as a condition precedent
to the granting of such order.
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 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 Treasurer-Clerk, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
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-Clerk or the court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected, the Treasurer-Clerk 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-Clerk. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
Treasurer-Clerk as hereinbefore provided, unless the Treasurer-Clerk,
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. 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-Clerk may receive additional evidence
with respect thereto. After making his determination, the Treasurer-Clerk
shall give notice thereof to the person interested, and he shall be
entitled to a certiorari order to review such determination, 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 costs of such utility.
Whenever any person shall fail to pay any tax
or penalty imposed by this Article, the Corporation Counsel shall,
upon the request of the Treasurer-Clerk, 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-Clerk. 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-Clerk
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 the proper judicial order
or as otherwise provided by law, it shall be unlawful for the Treasurer-Clerk
or any agent, clerk or employee of the Village of Mamaroneck 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 Mamaroneck 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 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 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 Treasurer-Clerk, may assist in the collection
of such delinquent taxes, or the inspection by the Corporation Counsel
or other legal representatives of the Village of Mamaroneck 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 six months, or both, and if the offender is an officer,
agent, clerk or employee of the Village of Mamaroneck, he shall be
dismissed from office and shall be incapable of holding any office
or employment in the Village of Mamaroneck for a period of five years
thereafter.
C. Notwithstanding any provisions of this Article, the
Treasurer-Clerk may exchange with the chief fiscal officer of any
other city or first class village in the State of New York information
contained in returns filed under this Article, provided that such
other city or village grants similar privileges to the Village of
Mamaroneck, and provided that such information is to be used for tax
purposes only, and the Treasurer-Clerk shall, upon request, furnish
the State Tax Commission with any information contained in such returns.
All taxes and penalties received by the Treasurer-Clerk
for taxes heretofore or hereafter imposed under this Article shall
be credited and deposited by him in the general fund of the village.