[Adopted 1-13-2005 by L.L. No. 1-2005]
Pursuant to the authority granted by § 5-530 of the
Village Law of the State of New York, a tax equal to 1% of its gross
income from and after the first day of November 1968 is hereby imposed
upon every utility with the exception of any Village-owned utility,
doing business in the Village of Webster, New York, 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 of brokers subject to such supervision under
§ 240 et seq. of the Transportation Law, a tax equal to
1% of its gross operating income from and after the first day of November
1968 is hereby imposed upon every other utility doing business in
the Village of Webster, New York, 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 Webster notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
The terms used in this article shall be defined as provided
in § 186-a of the Tax Law and Subdivision 4 of § 5-530
of Village Law.
Every utility subject to tax shall keep such records of its
business and in such form as the Village Treasurer may require or
as the Village Board may require, and such records shall be preserved
for a period of three years, except that the Village Treasurer or
the Village Board may consent to their destruction within that period
or may require that they be kept longer.
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 the 31st day of December or, on or before the 25th day of March,
a return date of any portion thereof for which the tax imposed hereby
is effective; provided, however, that in lieu of the annual return
required by the foregoing provision, any utility may file quarterly
on or before September 1, December 1, March 1 and June 1, a return
for the three calendar months preceding each such return date, and
in the case of the first such return, for all preceding calendar months
during which the tax imposed hereby was effective. Every return shall
state the gross income or gross operating income for the period covered
thereby. Returns shall be filed with the Village Treasurer on a form
to be furnished by him/her for such purpose and shall contain such
other data, information or matter as he/she may require to be included
therein. The Village Treasurer, in order to insure payment of the
tax imposed, may require at any time that may be specified by him/her,
and he/she may require any utility doing business in the Village of
Webster, New York, to file an annual return, which shall contain any
data specified by him/her, 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 Village of Webster 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 Village Treasurer, and if a corrected or
sufficient return is not filed within 20 days after the same is required
by notice from him/her, or if no return is made for any period, the
Village Treasurer shall determine the amount of tax due from such
information as he/she is able to obtain, and if necessary, may estimate
the tax on the basis of external indices or otherwise. He/she 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 Village Treasurer
for a hearing, or unless the Village Treasurer, of his/her own motion,
shall reduce the same. After such hearing, the Village Treasurer shall
give notice of his/her decision to the person liable for the tax.
B. 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 Village Treasurer
and an undertaking filed with him/her, 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.
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 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 provision 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 to pay any tax or any
portion thereof, within the time required by this article, shall be
subject to a penalty of 5% of such tax for each month, after such
return was required to be filed or such tax became due, but the Village
Treasurer, for cause shown, 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.
A. If, within one year from the payment of any tax or penalty, the payer
thereof 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.
B. 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, or of his/her own motion,
shall have reduced the tax or penalty or if it shall have been established
in a proceeding under Article 78 of the Civil Practice Law and Rules
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 Village Treasurer may receive additional evidence
with respect thereto. After making his/her determination, the Village
Treasurer shall give notice thereof to the person interested, and
he shall be entitled to an order to review such determination under
said Article 78 of the Civil Practice Law and Rules of the State of
New York, subject to the provisions hereinbefore contained relating
to the granting of such order.
The tax imposed by this article shall be charged against and
be paid by the utility and may 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
Village Board, 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-a of the Tax Law is made a lien.
In the administration of this article, the Village Treasurer
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary for the exercise of his/her
powers and the performance of his/her 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/her 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 Village Treasurer or any agent,
clerk or employee of the Village of Webster 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 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 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, 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 Village Treasurer may assist in the collection
of such delinquent taxes; or the inspection by the Village Attorney
or other legal representative of the Village of Webster of the return
of any person who shall bring action to set aside to review the tax
based thereof, 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 one
year, or by both, and if the offender be an officer, clerk or employee
of the Village of Webster, he shall be dismissed from office and shall
be incapable of holding any office or employment for the Village of
Webster for a period of five years thereafter.
C. Notwithstanding any provisions of this article, the Village Treasurer
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 such city or other Village grants
similar privileges to the Village of Webster and provided such information
is to be used for tax purposes only, and the Village Treasurer shall,
upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Village Treasurer under
this article shall be paid into the treasury of the Village of Webster
and shall be credited to and deposited in the general fund of the
Village.
If any part or provision of this article or the application
thereof to any person or circumstance be adjudged invalid by any court
of competent jurisdiction, such judgment shall be confined in its
operation to the part or provision or application directly involved
in the controversy in which said judgment shall have been rendered
and shall not affect or impair the validity of the remainder of this
article or the application thereof to other persons or circumstances,
and the Village of Webster hereby declares that it would have passed
this article or the remainder thereof had such invalid application
or invalid provision been apparent.
This article shall take effect immediately upon filing in the
office of the Secretary of State in accordance with § 27
of the Municipal Home Rule Law.