[Adopted 4-15-1968 by L.L. No. 1-1968]
Pursuant to the authority granted by § 6-640
of the Village Law of the State of New York,[1] a tax equal to 1% of its gross operating income from and
after the first day of April 1968 is hereby imposed upon every utility
doing business in the Village of Elmsford, New York, which is subject
to the supervision of the State Department of Public Service which
has a gross operating income for the 12 months ending May 31 in excess
of $500, except motor carriers or brokers subject to such supervision
under Article 3-B of the Public Service Law,[2] which taxes shall have application only within the territorial
limits of the Village of Elmsford, New York, 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 tax shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the
Village of Elmsford, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
As used in this article, the following word
or words shall have the meanings indicated:
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 Village, 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.
The words "gross operating income" shall include in the case of a
utility engaged in selling telephony or telephone services only receipts
for local exchange service wholly consummated within the Village;
and in the case of a utility engaged in selling telegraphy or telegraph
service only receipts from transactions wholly consummated within
the Village of Elmsford.
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.
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 Village
Treasurer of the Village of Elmsford may require, and such records
shall be preserved for a period of three years, except that the Village
Treasurer of the Village of Elmsford 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 each September 25, December 25, March 25 and June
25 hereafter, 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 operating income for the period covered by each such
return. Returns shall be filed with the Village Treasurer on a form
to be furnished by him for such purpose and shall contain such other
data, information or matter as the Village Treasurer may require to
be included therein. Notwithstanding the foregoing provisions of this
article, any utility whose average gross operating income for the
aforesaid three months period is less than $1,500 may file one return
only each year, on June 25 in each year to cover the preceding twelve-month
period ending May 31. The Village 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 the
Village Treasurer. Every return shall have annexed thereto an affidavit
of 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 filing a return as required by
this article, each utility shall pay to the Village Treasurer of the
Village of Elmsford the tax imposed hereby 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 Village Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the Village Treasurer, or
if no return is made for any period, the Village 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. The Village Treasurer 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 Village Treasurer for a hearing, or unless
the Village Treasurer, of his own motion, shall reduce the same. After
such hearing, the Village Treasurer shall give notice of his decision
to the person liable for the tax. The decision of the Village Treasurer
may be reviewed by a proceeding under Article 78 of the Civil Practice
Act of the State of New York,[1] if application therefor is 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 Village 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 be dismissed or the
tax confirmed, the petitioner will pay all costs and charges which
may accrue in the prosecution of such proceeding, or at the option
of the petitioner such undertaking may be in a sum sufficient to cover
the tax, interest, penalties, costs and charges aforesaid, in which
event the petitioner shall not be required to pay such tax, interest
and penalties as a condition precedent to the commencement of the
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 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.
[1]
Editor's Note: See now Article 78 of the Civil
Practice Law and Rules.
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 Village Treasurer
of the Village of Elmsford, if satisfied that the delay was excusable,
may remit all or any portion of such penalty.
If, within one year from the payment of any
tax or penalty, the payer thereof shall make application for a refund
and the Village Treasurer or the court shall determine that such tax
or penalty or any portion thereof was erroneously or illegally collected
under this article, 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
of the Village Treasurer as herein provided unless the Village Treasurer,
after a hearing as hereinbefore provided, or of his own motion, shall
have reduced the tax or penalty or 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 hereinabove 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 an order to review such determination under
said Article 78, subject to the provision hereinbefore contained relating
to the granting of such an order.
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 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 tax and penalty
imposed by § 186-a of the Tax Law is made a lien.
In the administration of this article the Village
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.Â
Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Village
Treasurer, or any agent, clerk or employee of the Village of Elmsford
to divulge or make known in any manner the amount of 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 a court, except on
behalf of the Village of Elmsford 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 Village 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
Elmsford 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 the article.
B.Â
Notwithstanding any provisions of this article, the
Village Treasurer 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 that such city or other
Village grants similar privileges to the Village of Elmsford, and
provided that such information is to be used for tax purposes only,
and the Village Treasurer shall, upon request, furnish the State Tax
Commission with any information contained in such returns.
All taxes and penalties received by the Village
Treasurer 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.
