[Adopted 7-14-1980 by L.L. No. 19-1980
as Ch. 130, Art. I, of the 1980 Code]
[Amended 9-27-1994 by L.L. No. 13-1994]
Pursuant to the authority granted by § 5-530
of the Village Law of the State of New York, from, on and after March
1, 1968, there is hereby imposed:
A. A tax equal to one per centum (1%) of the gross income
of every utility doing business in the Incorporated Village of Thomaston
which is subject to the supervision of the New York State Department
of Public Service and which has an annual gross income in excess of
five hundred dollars ($500.), except motor carriers or brokers subject
to such supervision under Article 7 of the Transportation Law.
B. A tax equal to one per centum (1%) of the gross operating
income of every other utility doing business in the Incorporated Village
of Thomaston which has an annual gross operating income in excess
of five hundred dollars ($500.).
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
Includes:
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.
C.
In the case of any utility other than described
above:
(1)
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, 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 deductions 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.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
(4)
Profits from the sale of personal property,
other than property of a kind which would properly be included in
the inventory of a taxpayer if on hand at the close of the period
for which a return is made.
(5)
Receipts from interest, dividends and royalties
derived from sources within the village (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.
(6)
Profits from any transaction, except sales for
resale and rentals within the village whatsoever.
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, including cash, credits and property of any
kind or nature, without 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 expense whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees of rents, any persons
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, 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.
UTILITY
Includes:
A.
Every person subject to the supervision of the
State Department of Public Service, except:
(1)
Persons engaged in the business of operating
or leasing sleeping and parlor railroad cars.
(2)
Persons engaged in the business of operating
or leasing railroads other than street surface, rapid transit, subway
and elevated railroads.
(3)
Omnibus corporations subject to supervision
under Article 7 of the Transportation Law.
B.
Every person who sells gas, electricity, steam,
water, refrigeration, telephony or telegraphy delivered through mains,
pipes or wires, whether or not such person is subject to the supervision
of the State Department of Public Service.
C.
Every person 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 of whether
use is made of the public streets.
This article and the tax imposed thereby shall:
A. Apply only within the territorial limits of the Village
of Thomaston.
B. Not apply and the tax shall not be imposed on any
transaction originating or consummated outside of the territorial
limits of the Village of Thomaston, notwithstanding that some act
be necessarily performed with respect to such transaction within such
limits.
C. Be in addition to any and all other taxes.
D. Apply to all subject income received on and after
March 1, 1968.
All revenues resulting from the imposition of
the tax imposed by 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 Village Treasurer shall be the chief enforcement
officer of this article and shall make and be responsible for all
collections hereunder. He or she shall also have the power and authority
to make any rules or regulations or directives not inconsistent with
law, which, in his or her discretion, are reasonably necessary to
facilitate the administration of this article and the collection of
the taxes imposed hereby. Copies of all such rules and regulations
and directives as may from time to time be promulgated shall be sent
by registered mail to all utilities subject to this article which
register as such with the Village Treasurer. All such rules, regulations
and directives shall be deemed a portion of this article.
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 (3) years unless the Village Treasurer directs otherwise.
A. Time of filing. Every utility subject to a tax hereunder
shall file on or before December 25 and June 25 a return for the six
(6) calendar months preceding each return date, including any period
for which the tax imposed hereby or any amendment hereof is effective.
However, any utility whose average gross income or gross operating
income for the aforesaid six-month period is less than three thousand
dollars ($3,000.) may file a return annually on June 25 for the twelve
(12) calendar months preceding each return date, including any period
for which the tax imposed hereby or any amendment hereof is effective.
Any utility, whether subject to tax under this article or not, may
be required by the Village Treasurer to file an annual return.
B. Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by him or her for such purpose
and shall show thereon the gross income or gross operating income
for the period covered by the return and such other information, data
or matter as the Village Treasurer may require to be included therein.
Every return shall have annexed thereto a certification by the head
of the utility making the same or of the owner or of a copartner thereof
or of a principal corporate officer 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 hereby for the period covered by such return. Such tax
shall be due and payable at the time of the filing of the return or,
if a return is not filed when due, on the last day on which the return
is required to be filed.
Any utility failing to file a return or a 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 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, except the first month, after
such return was required to be filed or such tax became due; but the
Village Treasurer, if satisfied that the delay was excusable, may
remit all or any portion of such penalty.
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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
he or she may require at any time a further or supplemental return,
which shall contain any data that may be specified by him or her,
and, if a corrected or sufficient return is not filed within twenty
(20) days after the same is required by notice from him or her or
if no return is made for any period, the Village Treasurer shall determine
the amount due from such information as he or she is able to obtain
and, if necessary, may estimate the tax on the basis of external indices
or otherwise. He or she shall give notification of such determination
to the utility liable for such tax. Such determination shall finally
and irrevocably fix such tax, unless the utility against which it
is assessed shall, within one (1) year after the giving of notice
of such determination, apply to him or her for a hearing or unless
the Village Treasurer, of his or her own motion, shall reduce the
same. After such hearing, he or she shall give notice of his or her
decision to the utility liable for such 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 Law and Rules if the proceeding
is commenced within ninety (90) days after the giving of 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 thereon
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.
Any notice authorized or required under the
provisions of this article may be given by mailing same to the utility
for which it is intended, in a postpaid envelope, addressed to such
utility at the address given by it in the last return filed by it
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 utility to
which addressed. Any period of time which is determined according
to the provisions of this section by the giving of notice shall commence
to run from the date of mailing of such notice.
If, within one (1) 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 or her own motion, shall have
reduced the tax or penalty or it shall have been established in a
proceeding in the manner provided in the Civil Practice Law and Rules
that such determination was erroneous or illegal. 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 or her determination, the Village Treasurer shall give
notice thereof to the person interested, and he or she shall be entitled
to commence a proceeding to review such determination, in accordance
with the provisions of the following section hereof.
Where any tax imposed hereunder shall have been
erroneously, illegally or unconstitutionally collected and application
for the refund thereof duly made to the Village Treasurer, and he
or she shall have made a determination denying such refund, such determination
shall be reviewable by a proceeding under Article 78 of the Civil
Practice Law and Rules; provided, however, that such proceeding is
instituted within ninety (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 Village 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 and charges
which may accrue in the prosecution of such proceeding.
Except in case of a willfully false or fraudulent
return with the intent to evade the tax, no assessment or additional
tax shall be made with respect to taxes imposed under this article
after the expiration of more than three (3) years from the date of
filing of a return; provided, however, that where no return has been
filed as required hereby, the tax may be assessed at any time.
In addition to any other powers herein given
the Village Treasurer and in order to further ensure payment of the
tax imposed hereby, he or she shall have the power to:
A. Prescribe the form of all reports and returns required
to be made hereunder.
B. Take testimony and proofs, under oath, with reference
to any matter hereby entrusted to him or her.
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
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 of the Tax Law is made a lien.