[HISTORY: Adopted by the Board of Trustees
of the Village of Ocean Beach: Art. I, 6-29-68 as Article XVI of the
1951 Code of Ordinances; Art. II, 5-14-77 as L.L. No. 4-1977. Amendments noted where
applicable.]
[Adopted 6-29-68 as Article XVI of the 1951
Code of Ordinances]
Pursuant to the authority granted by § 5-530
of the Village Law of the State of New York, a tax equal to one per
centum (1%) of its gross income from and after the first day of July
1968 is hereby imposed upon every utility doing business in the Village
of Ocean Beach which is subject to the supervision of the State Department
of Public Service and which has a gross income for the 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 one per centum (1%) of its gross operating income from
and after the first day of May 1950 is hereby imposed upon every other
utility doing business in the Village of Ocean Beach which has a gross
operating income for the 12 months ending May 31 in excess of $500,
which taxes shall have application only within the territorial limits
of the Village of Ocean 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 Ocean 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 Ocean Beach, 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
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 Ocean 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 Ocean 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 Ocean 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 Ocean 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 Ocean 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, assignees of rent, 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 of Ocean Beach may require, and such records shall be preserved
for a period of three years.
Every utility subject to tax hereunder shall
file annually, on or before the 25th day of March, a return for the
12 calendar months preceding such return date or any portion thereof
for which the tax imposed hereby is effective. Every return shall
state the gross income or gross operating income for the period covered
thereby. Returns shall be filed with the Treasurer of the Village
of Ocean Beach 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 Treasurer of the Village of Ocean Beach,
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 Ocean 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 is 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 Treasurer of the Village
of Ocean Beach 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 Treasurer of the Village
of Ocean Beach, 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 Treasurer of the Village of
Ocean Beach 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. 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 30 days after the giving of notice
of such determination, apply to the Treasurer of the Village of Ocean
Beach for a hearing, or unless the Treasurer of the Village of Ocean
Beach, of his own motion, shall reduce the same. After such hearing,
the Treasurer of the Village of Ocean Beach 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 Law 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 Treasurer of the Village of Ocean Beach
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 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
persons 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
portion thereof, within the time required by this Article, shall be
subject to a penalty of five per centum (5%) of the amount of tax
due, plus one per centum (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 Treasurer of
the Village of Ocean Beach, 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 Treasurer of the Village of Ocean Beach or the court
shall determine that such tax or penalty or any portion thereof was
erroneously or illegally collected, the Treasurer of the Village of
Ocean Beach 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 of the Village of Ocean Beach. However, no refund
shall be made of a tax or penalty paid pursuant to a determination
of the Treasurer of the Village of Ocean Beach as hereinbefore provided
unless the Treasurer of the Village of Ocean Beach, 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 Act 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 hereinbefore provided, shall be deemed an application
for the revision of any tax or penalty complained of, and the Treasurer
of the Village of Ocean Beach may receive additional evidence with
respect thereto. After making his determination, the Treasurer of
the Village of Ocean Beach 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 provision 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 Village Attorney shall, upon
the request of the Treasurer of the Village of Ocean Beach, 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 of the
Village of Ocean Beach. 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
of the Village of Ocean Beach shall have the 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 Treasurer
of the Village of Ocean Beach or any agent, clerk or employee of the
Village of Ocean 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 Ocean 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 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 of the Village of Ocean Beach may assist in the collection
of such delinquent taxes, or the inspection by the Village Attorney
or other legal representatives of the Village of Ocean 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 $250; and if the offender
is an officer, agent, clerk or employee of the Village of Ocean Beach,
he shall be dismissed from office and shall be incapable of holding
any office or employment in the Village of Ocean Beach for a period
of five years thereafter.
C.
Notwithstanding any provisions of this Article the
Treasurer of the Village of Ocean Beach 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 Ocean Beach and provided that such information is to be used for
tax purposes only; and the Treasurer of the Village of Ocean Beach
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Treasurer
of the Village of Ocean Beach 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.
[Adopted 5-14-77 as L.L. No. 4-1977]
As provided in Subdivision 7 of § 485-b
of the Real Property Tax Law, the exemption table set forth in Subdivision
2(a) of that Section shall be amended to read as follows:
|
Year of Exemption
|
Percentage of Exemption
|
|---|---|
|
1
|
0
|
|
2
|
0
|
|
3
|
0
|
|
4
|
0
|
|
5
|
0
|
|
6
|
0
|
|
7
|
0
|
|
8
|
0
|
|
9
|
0
|
|
10
|
0
|
This Article is subject to a permissive referendum
as provided in § 24 of the Municipal Home Rule Law and shall
take effect upon filing in the Secretary of State's office as provided
in said law, and an additional copy shall be filed with the State
Board of Equalization.
