[Adopted 6-6-1969 by L.L. No. 1-1969]
Pursuant to the authority granted by Article
6, § 6-640 of the Village Law of the State of New York,[1] from, on and after July 1, 1969, there is hereby imposed:
A.
A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of North Haven (hereinafter
referred to as "Village") 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 $500, except motor carriers or brokers subject
to such supervision under Article 3-B of the Public Service Law.[2]
[2]
Editor's Note: Article 3-B of the Public Service
Law was repealed by L. 1970, c. 267, § 5, effective March
1, 1971. Motor carriers previously regulated by Article 3-B of the
Public Service Law are now regulated by Article 7 of the Transportation
Law, adopted by L. 1970, c. 267, § 3.
B.
A tax equal to 1% of the gross operating income of
every other utility doing business in said Village which has an annual
gross operating income in excess of $500.
[1]
Editor's Note: Section 6-640 of the Village
Law was repealed by L. 1972, c. 892, § 1. See now 5-530
of the Village Law.
As used in this article, the following terms
shall have the meanings indicated:
Includes:
In the case of a utility engaged in selling
telephony or telephone service, only receipts from local exchange
service wholly consummated within the Village.
In the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village.
Receipts received in, or by reason of, any sale,
conditional or otherwise, made (except sales hereinafter referred
to with respect to which it is provided that profits from the sale
shall be included in gross income) 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.
Profits from the sale of securities.
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
Profits from the sale of personal property (other
than property of a kind which would be properly included in the inventory
of a taxpayer if on hand at the close of the period for which a return
is made).
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.
Profits from any transaction (except sales for
resale and rentals) within the Village whatsoever.
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, refrigeration, 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 the materials used, labor or services
or other costs, interest or discount paid or any other expense whatsoever.
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.
Includes:
Every person subject to the supervision of the
New York 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.
Every person (whether or not such person is
subject to such supervision) engaged in the business of operating
one or more omnibuses having a seating capacity of more than seven
passengers.
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, regardless of whether such activities are the main business
of such person or are only incidental thereto or 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.
B.
Not apply and the tax shall not be imposed on any
transaction originating or consummated outside of the territorial
limits of said Village, notwithstanding that some act is necessarily
performed with respect to such transaction within such limits.
C.
Be in addition to any and all other taxes.
D.
Apply to all such subject income received on and after
December 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 shall also have the power and authority
to make any rules, regulations and directives, not inconsistent with
law and subject to the approval of the Board of Trustees of said Village,
which, in his discretion, are reasonably necessary to facilitate the
administration of this article and the collection of the taxes imposed
hereby. Copies of all such rules, regulations and directives as may
from to time be promulgated shall be sent by registered mail to all
utilities by the aforesaid Village Treasurer, subject to this article,
which register as such with the Village Treasurer. All such rules,
regulations and directives shall be deemed a part 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 years unless the Village Treasurer directs otherwise.
A.
Time of filing. In each year hereafter, every utility
subject to a tax hereunder shall file on or before February 25 a return
for the preceding six calendar months of July through December and
on August 25 a return for the preceding six calendar months of January
through June, each return including any period for which the tax imposed
hereby or any amendment hereof is effective. However, any utility
whose gross income or gross operating income for the aforesaid six-month
period is less than $3,000 may file a return annually on August 25
for the 12 calendar months next 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. Returns filed for periods in 1969 shall exclude any income
prior to July 1, 1969.
B.
Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by him 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 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 failing 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 Village Treasurer,
if satisfied that the delay was excusable, may, subject to the approval
of the Board of Trustees, 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 may require at any time a further or supplemental return, which
shall contain any data that may be specified by him, 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 Village Treasurer shall determine the amount due from such available
information and, if necessary, may estimate the tax due on the basis
of external indexes or otherwise. He shall thereupon 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 year after the giving of notice
of such determination, apply to him for a hearing or unless the Village
Treasurer, on his own motion, shall reduce or amend the same. After
such hearing he shall give notice of his 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 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 the tax sought
to be reviewed, with such interest and penalties thereon as may be
provided by local law, resolution or ordinance, 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 be dismissed or the tax confirmed the petitioner will
pay all cost and charges which may accrue in the prosecution of such
proceedings.
Any notice authorized or required under this
law may be given by mailing the same to the intended utility in a
postpaid envelope addressed to such utility at the address given in
the last return filed by it under this article or if no return has
been previously filed then to such address as may be obtainable elsewhere.
The mailing of such notice shall be presumptive evidence of the receipt
of the same by the utility to which it is 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 the
mailing of such notice.
If, within one 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 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 on his own motion, shall have reduced or amended 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 determination, the Village Treasurer shall give notice thereof to the person interested, and he shall be entitled to commence a proceeding to review such determination, in accordance with the provisions of § 151-15 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 has
defined 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 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 the 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 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 shall have the power, subject to the approval
of the Board of Trustees, 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.
C.
Subpoena and require the attendance of witnesses and
the production of all relevant books, papers, records and documents.
Whenever any person fails to pay any tax or
penalty imposed by this article, the Village Attorney shall, upon
the request of the Village Treasurer and with the approval of the
Board of Trustees, bring an action to enforce payment of said tax.
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 manner and to the same extent that the tax and penalty imposed
by a § 186-a of the Tax Law of the State of New York is
made a lien.
