[Adopted 12-15-1975 as
Ch. 125 of the 1975 Ogdensburg Municipal Code]
Pursuant to the authority granted by § 20-b of the
General City Law of the State of New York, an annual tax equal to
1% of its gross income from and after July 1, 1937, is hereby imposed
upon every utility doing business in the City of Ogdensburg which
is subject to the supervision of the Department of Public Service,
State of New York, which has a gross income for the 12 months ending
May 31 of each year in excess of $500, except motor carriers or brokers
subject to such supervision under Article 5 of the Transportation
Law; and a tax equal to 1% of its gross operating income is hereby
imposed from and after July 1, 1937, upon every other utility doing
business in the City of Ogdensburg which has a gross operating income
for the 12 months ending May 31 of each year, in excess of $500, which
taxes shall have application only within the territorial limits of
the City of Ogdensburg, and shall be in addition to any and all other
taxes and fees imposed by any other provision of law for the same
period. Such taxes shall not be imposed on any transaction originating
or consummated outside of the territorial limits of the City of Ogdensburg,
notwithstanding that such act be necessarily performed with respect
to such transaction within such limits.
As used in this article, the following terms shall have the
meanings indicated:
Includes 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 city, 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 city 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 this city 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, refrigerator, telephone or telegraph
service in this city, 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.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees 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 and excepting a corporation organized and
operated exclusively for the purpose of leasing from a city in this
state a waterworks system designed to supply water at cost to users
thereof for discharge, either before or after industrial use, into
a river within such city in order to improve the flow and condition
of such river and thereby to provide a means to relieve such river
from pollution.
Includes 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 other than street surface,
rapid transit, subway and elevated 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, refrigerator, 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.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the City Comptroller may
require, and such records shall be preserved for a period of three
years, except that the City Comptroller may consent to their destruction
within that period or may require that they be kept longer.
Every utility subject to tax hereunder shall file on or before
September 25, December 25, March 25 and June 25 of each year a return
for the three calendar months preceding each such return date, including
any period for which the tax imposed hereby or by any amendment hereof
is effective, each of which returns shall state the gross income or
gross operating income for the period covered by each such return.
Returns shall be filed with the City Comptroller on a form to be furnished
by him for such purpose and shall contain such other data, information
or matter as the City Comptroller may require to be included therein.
Notwithstanding the foregoing provisions of this section, any utility
whose average gross income or average gross operating income, as the
case may be, for the aforesaid three-month periods is less than $1,500
may file a return annually on June 25 for the 12 preceding calendar
months and the City Comptroller may require any utility to file an
annual return, which shall contain any data specified by him, regardless
of whether the utility is subject to tax under this chapter. 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 officer of the corporation, if such business be
conducted by a corporation, to the effect that the statements contained
therein are true.
At the time of the filing of a return as required by this chapter,
each utility shall pay to the City Comptroller 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 in which the return is required
to be filed.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the City Comptroller 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 City Comptroller
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 City Comptroller for a hearing, or unless
the City Comptroller, of his own motion, shall reduce the same. After
such hearing, the City Comptroller shall give notice of his decision
to the person liable for the tax. 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 30
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 City Comptroller 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
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. Except in the case of 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 required 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 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, excepting
the first month, after such return was required to be filed or such
tax became due, but the City Comptroller, 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 article.
If, within one year from the payment of any tax or penalty,
the payer thereof shall make application for a refund thereof and
the City Comptroller or the court shall determine that such tax or
penalty or any portion thereof was erroneously or illegally collected,
the City Comptroller 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 City Comptroller. However, no refund shall be made of a tax
or penalty paid pursuant to a determination of the Comptroller as
hereinbefore provided unless the City Comptroller, 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,
deposited to the credit of the City Comptroller with the approval
of the City Comptroller. 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 City Comptroller may receive additional
evidence with respect thereto. After making its determination, the
City Comptroller shall give notice thereof to the person interested,
and he shall be entitled to commence a proceeding to review such determination,
subject to the provisions hereinbefore contained relating to the commencement
of such a proceeding.
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.
Whenever any person shall fail to pay any tax or penalty imposed
by this article, the City Attorney shall, upon the request of the
City Comptroller, bring an action to enforce payment of the same.
The proceeds of any judgment obtained in any such action shall be
paid to the City Comptroller. 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 City Comptroller
shall have power to make such reasonable rules and regulations, not
inconsistent with law, as may be necessary to 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.
Except in accordance with proper judicial order or as otherwise
provided by law, it shall be unlawful for the City Comptroller or
any agent, clerk or employee of the City of Ogdensburg, New York,
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 City of Ogdensburg, New York, 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 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 City Comptroller
may assist in the collection of such delinquent taxes; or the inspection
by the City Attorney or other legal representative of the City of
Ogdensburg, New York, 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. 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 both, and if the offender is an officer,
agent, clerk or employee of the City of Ogdensburg, New York, he shall
be dismissed from office and shall be incapable of holding any office
or employment for the City of Ogdensburg, New York, for a period of
five years thereafter. Notwithstanding any provisions of this article,
the City Comptroller may exchange with the chief fiscal officer of
any city or any village of the State of New York information contained
in returns filed under this article, provided that such city or village
grants similar privileges to the City of Ogdensburg, New York, and
provided that such information is to be used for tax purposes only,
and the City Comptroller shall, upon request, furnish the State Tax
Commission with any information contained in such returns.
All taxes and penalties received by the City Comptroller under
this article shall be paid into the treasury of the City of Ogdensburg,
New York, and shall be credited to and deposited in the general fund
of the City.
