[Adopted 1-19-2000 by L.L. No. 2-2000]
Pursuant to the authority granted by Article
5, § 5-530, of the Village Law of the State of New York,
there is hereby imposed, effective February 11, 2000, a tax equal
to 1% of:
A.
The gross income of every utility doing business in
the Village of Harrison that is subject to the supervision of the
New York State Department of Public Service and that has an annual
gross income in excess of $500, except motor carriers or brokers subject
to such supervision under Transportation Law § 240 et seq.;
and
B.
The gross operating income of every other utility
doing business in the Village of Harrison which has an annual gross
operating income in excess of $500.
As used in this article, the following terms
shall have the meanings indicated:
Includes:
For utilities engaged in selling telephony or
telephone service, receipts from local exchange service wholly consummated
within the Village of Harrison;
For utilities engaged in selling telegraphy
and telegraph service, receipts from transactions wholly consummated
within the Village of Harrison; and
For all other utilities, 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 of
Harrison, 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;
provided, further, that sales of gas, electricity, steam, water or
refrigeration or gas, electric, steam, water or refrigerator service
to a landlord that is a person as defined in this section for resale
by such landlord to a tenant, for consumption by such tenant as an
incident to such landlord's activity of renting premises to such tenant,
shall be subject to the tax imposed under this section even though
such sales are not for ultimate consumption by such landlord; provided,
further, that receipts derived by a landlord from the resale for such
gas, electricity, steam, water or refrigeration or furnishing gas,
electric, steam, water or refrigerator service to such tenant shall
be conclusively presumed to be equal to such landlord's cost of the
same, and, if the tax under this section was imposed on the sale to
such landlord, no additional tax under this section shall be owing
on the sale by such landlord to such tenant. If, however, the tax
under this section was not imposed on such sale to the landlord, then
such landlord, on the sale to its tenant, shall file a return hereunder
based on such landlord's cost (including any associated transportation
cost) of such gas, electricity, steam, water or refrigeration or gas,
electric, steam, water or refrigerator service.
"Gross Income" also includes 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
profits 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 the Village of Harrison 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 (except sales for resale and rentals) within
the Village of Harrison 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 or refrigeration, or in or by reason
of the furnishing for such consumption or use of gas, electric, steam,
water or refrigerator service in the Village of Harrison including
cash, credits and property of 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; provided, further, that sales
of gas, electricity, steam, water or refrigeration or gas, electric,
steam, water or refrigerator service to a landlord that is a person
as defined in this section for resale by such landlord to a tenant,
for consumption by such tenant as an incident to such landlord's activity
of renting premises to such tenant, shall be subject to the tax imposed
under this section even though such sales are not for ultimate consumption
by such landlord; provided, further, that receipts derived by a landlord
from the resale of such gas, electricity, steam, water or refrigeration
or furnishing gas, electric, steam, water or refrigerator service
to such tenant shall be conclusively presumed to be equal to such
landlord's cost of the same, and, if the tax under this section was
imposed on the sale to such landlord, no additional tax under this
section shall be owing on the sale by such landlord to such tenant.
If the tax under this section was not imposed on such sale to the
landlord, then such landlord on the sale to its tenant shall file
a return hereunder based on such landlord's cost (including any associated
transportation cost) of such gas, electricity, steam, water or refrigeration
or gas, electric, steam, water or refrigerator service.
Persons, corporations, companies, associations, joint-stock
companies or associations, partnerships and limited liability companies,
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.
Includes any real property or part thereof and any structure
thereon or space therein.
Shall have the same meaning as such term is defined in § 186-e
of the Tax Law.
Includes a person paying, or required to pay, rent for premises
as a lessee, sublessee, licensee or concessionaire.
Includes:
Every person (including every provider of telecommunication
services) subject to the supervision of the State Department of Public
Service, except persons engaged in the business of:
Omnibus corporations subject to supervision
under Article 3-A of the Public Service Law.
Every person (whether or not such person is
subject to such supervision) who sells 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 persons 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 Harrison.
B.
Not apply to, and the tax shall not be imposed on,
any transaction originating or consummated outside of the territorial
limits of the Village of Harrison notwithstanding that some acts be
necessarily performed with respect to such transaction within such
limits; and
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 or receipts received on
and after February 11, 2000.
All revenues resulting from the imposition of
the tax imposed by this article shall be paid to the Treasurer 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.
A.
Time of filing. Every utility subject to a tax hereunder
shall file on or before March 20 and September 20, 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 March 20 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 law or not, may be required by the Village Treasurer
to file an annual return.
[Amended 6-6-2001 by L.L. No. 1-2001]
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 gross income or gross operating income for a period
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 by the owner or a co-partner thereof, or by 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.
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
the Village Treasurer may require at any time a further or supplemental
return that shall contain any data that may be specified by the Village
Treasurer 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 the Village Treasurer is able
to obtain and, if necessary, may estimate the tax on the basis of
external indices or otherwise. The Village Treasurer shall give notice
of such determination to the utility liable for such tax. Such determination
shall finally and irrevocably fix the 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 30 days after the giving of the 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 be dismissed or the tax confirmed,
the petitioner will pay all costs and charges that 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, 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 it is addressed. Any period of time, which is determined
to 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 and upon consent of the Village Board. 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 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
commenced within 30 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 intent to evade the tax, no assessment of 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:
Every utility subject to tax under this article
shall keep records of its business and in such form as the Village
Treasurer may require, and such records shall be preserved for a period
of at least three years, except that the Village Treasurer may consent
to their destruction within any three-year period or may require that
they be kept longer.
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.
A.
Except in accordance with the proper judicial order
or as otherwise provided by law, it shall be unlawful for the Treasurer,
or any agent, clerk or employee of the Village of Harrison, 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 of Harrison 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 of 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 or her 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
that, 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 Harrison of the return
of any person who shall bring an 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 secrecy provisions
shall be punishable by a fine not to exceed $1,000 or by imprisonment
not exceeding six months, or both, and if the offender be an officer,
agent, clerk or employee of the Town of Harrison or Village of Harrison,
he or she shall be dismissed from office and shall be incapable of
holding any office or employment in the Town of Harrison or Village
of Harrison for a period of five years thereafter.
C.
Notwithstanding any provisions of this article, the
Treasurer may exchange, with the chief fiscal officer of any other
city or first class village in the State of New York, information
contained in returns filed under this article, provided that such
other city or village grants similar privileges to the Village of
Harrison, and provided that such information is to be used for tax
purposes only, and the Treasurer shall, upon request, furnish the
State Tax Commission with any information contained in such returns.
