[Added 8-13-2007 by L.L. No. 17-2007]
This article shall be known and may be cited
as the "Utility Tax Law of the Village of Sagaponack."
When used in this article, unless otherwise
required by the context, or unless a contrary intent is expressly
declared in the provision to be construed, the words, phrases or clauses
hereafter shall be construed as follows:
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 this state, 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 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 this state 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; also profits from any transaction whatsoever within this
state, except sales for resale and rentals.
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 this state, including cash, credits and property or 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, 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, 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.
The Treasurer of the Village of Sagaponack.
Every person subject to the supervision of the State Department
of Public Service, except persons engaged in the business of operating
on the public highways of this state one or more omnibuses having
a seating capacity of more than seven persons, and persons engaged
in the business of operating or leasing sleeping and parlor railroad
cars or of operating 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, refrigeration, 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.
The incorporated Village of Sagaponack, Suffolk County, New
York.
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 September 10, 2007, is hereby imposed
upon every utility doing business in the Village of Sagaponack which
is subject to the supervision of the State Department of Public Service
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 § 240 et seq. of the Transportation Law, and a tax
equal to 1% of its gross operating income from and after September
10, 2007, is hereby imposed upon every other utility doing business
in the Village of Sagaponack 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 Sagaponack,
and shall be in addition to any and all other taxes and fees imposed
by any other provisions of law. Such taxes shall not be imposed on
any transaction originating or consummated outside of the territorial
limits of the Village of Sagaponack, notwithstanding that some act
is necessarily performed with respect to such transaction within such
limits.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Treasurer
may require, and such records shall be preserved for a period of three
years, except that the Treasurer may consent to their destruction
within that period or may require that they be kept longer.
Every utility subject to a tax hereunder shall
file semiannually, on or before September 25 and March 25, a return
for the six 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 Treasurer 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, 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 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 or a responsible official 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 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 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 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 indices 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 for
a hearing, or unless the Treasurer of his own motion shall reduce
the same. After such hearing, the Treasurer shall give notice of his
decision to the person liable for the tax. Such decision may be reviewed
by a proceeding under Article 27 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 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 is 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. 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 acquired 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
the address given in the last report of the utility filed with the
Public Service Commission, or if no such report has been filed, 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, 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 payor thereof shall make application for a refund
thereof and the Treasurer or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected,
the 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 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 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 Treasurer
may receive additional evidence with respect thereto. After making
his determination, the 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, 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 paid by the utility and may be added as a separate item
to bills rendered by the utility to customers.
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, 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. 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
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 proper judicial order or
as otherwise provided by law, or in connection with regular audits
of the records of the Village by the State Department of Audit and
Control, it shall be unlawful for the Treasurer or any agent, clerk
or employee of the Village 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
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 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 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 may assist in the collection of such delinquent taxes,
or the inspection by the Village Attorney or other legal representatives
of the Village 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 provisions shall
subject the offender to disciplinary proceedings pursuant to the Civil
Service Law if an employee of the Village and to an action pursuant
to the provisions of § 51 of the General Municipal Law if
an officer of the Village.
C.
Notwithstanding any provisions of this article, the
Treasurer of the Village of Sagaponack 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 Sagaponack, and provided such information is to be used for tax
purposes only, and the Treasurer of the Village shall, upon request,
furnish the State Tax Commission with any information contained in
such return.
All taxes and penalties received by the Treasurer
of the Village 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.
