[Adopted 7-20-1993 as L.L. No. 1-1993]
The title of this article is the "Utility Tax."
Pursuant to the authority granted by Article
5, Section 5-530, of the Village Law of the State of New York, from
and after September 4, 1993, there is hereby imposed:
A.
A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Elmira Heights 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.
[Amended 1-4-1996 by L.L.
No. 1-1996]
B.
A tax equal to 1% of the gross operating income of
every other utility doing business in the Incorporated Village of
Elmira Heights which has an annual gross operating income in excess
of $500.
[Amended 1-4-1996 by L.L.
No. 1-1996]
Words and phrases as used in this article, unless
otherwise noted, shall have the same meanings as ascribed to them
in § 186-a of the Tax Law.
This Article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Village
of Elmira Heights.
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 Elmira Heights, notwithstanding that some
acts be necessarily performed with respect to such transaction within
such limits.
C.
Be in addition to any and all other taxes and fees
imposed by any other provisions of law.
D.
Apply to all subject income received on and after
September 1, 1993.
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 chapter 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.
A.
Time of filing. Every utility subject to a tax hereunder
shall file on or before December 1 and June 1 a return for the six
calendar months preceding each return date, including any period for
which the tax imposed hereby or amendment thereof is effective. However,
any utility whose average gross income or gross average operating
income for the aforesaid six-month period is less than $3,000 may
file a return annually on May 1 for the 12 calendar months preceding
each return date, including any period for which the tax imposed hereby
or any amendment thereof 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 the Treasurer for such purpose
and shall show thereon the gross income or gross operating income
for a 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 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 first day when 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 5% of the amount
of tax due, plus 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 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 by 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 20 days after
the same is required by notice from the Treasurer 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 indexes
or otherwise. He or she shall give notice of such determination 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 such notice of such
final determination, provided, however, that any such proceeding under
this 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 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 be 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 the 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, 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 giving of notice shall commence
to run from the date of 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 charged, 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 if the Village Treasurer,
as hereinbefore provided on his or her own motion, shall have reduced
the tax or penalty or if 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 any 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 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 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
and in order to further payment of the tax imposed hereby, the Village
Treasurer shall have the power to:
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 law and penalty
imposed by § 186-a of the Tax Law is made a lien.
