[Adopted as Subpart E of the 1970 Municipal
Code]
[Amended 12-28-1992 by L.L. No. 4-1992]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, as amended, a tax
equal to 1% of its gross income is hereby imposed upon every utility
doing business in the City of Hornell which is subject to the supervision
of the State Department of Public Service, except motor carriers subject
to such supervision under § 240 et seq. of the Transportation
Law, and a tax equal to 1% of its gross operating income is hereby
imposed upon every utility doing business in the City of Hornell,
which taxes shall have application only within the territorial limits
of the City of Hornell and shall be in addition to any and all other
taxes and fees imposed by any other provision of law. Such taxes shall
not be imposed on any transaction originating or consummated outside
the territorial limits of the City of Hornell notwithstanding that
some act is 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 the City of Hornell, 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 the materials
used, labor or services or other cost, 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 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 City of Hornell,
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; and also profits from any transaction, except
sales for resale and rentals, within the City of Hornell 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 the City of Hornell, 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 and public districts.
Includes every person subject to the supervision of either
division of the State Department of Public Service, except 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 shall engage in the business of selling gas, electricity, steam,
water, refrigeration, telephony or telegraphy delivered through mains,
pipes or wire or of furnishing gas, electric, steam, water, refrigeration,
telephone or telegraph service by means of mains, pipes or wires.
Every utility subject to tax under this Article
shall keep such records of its business and in such form as the City
Chamberlain of the City of Hornell may require, and such records shall
be preserved for a period of three years, except that the City Chamberlain
of the City of Hornell 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,
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 Chamberlain
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the City Chamberlain 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 each of the aforesaid
three-month periods is less than $1,500 may file its returns annually
as follows: on the 15th day of June in each year while this Article
is in effect. The City Chamberlain may require at any time a further
or supplemental return, which shall contain any data that may be specified
by the City Chamberlain. 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 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 City Chamberlain of the
City of Hornell 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 City Chamberlain and
if a corrected or sufficient return is not filed within 20 days after
the same is required by notice from the City Chamberlain or if no
return is made for any period, the City Chamberlain 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 City Chamberlain 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 Chamberlain for a hearing or unless
the City Chamberlain, of his own motion, shall reduce the same. After
such hearing, the City Chamberlain shall give notice of his decision
to the person liable for the tax. The decision of the City Chamberlain
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 Chamberlain 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 (order) is dismissed or the tax confirmed, the
applicant (for the order) will pay all costs and charges which may
accrue in the prosecution of such proceedings 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.
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 the 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 Chamberlain of the
City of Hornell, 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
thereof and the City Chamberlain or the Court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected, the City Chamberlain 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 Chamberlain. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
City Chamberlain as hereinbefore provided unless the City Chamberlain,
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 hereinbefore provided,
shall be deemed an application for the revision of any tax or penalty
complained of, and the City Chamberlain may receive additional evidence
with respect thereto. After making his determination, the City Chamberlain
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 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 Corporation Counsel shall,
upon the request of the City Chamberlain of the City of Hornell, 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 Chamberlain
of the City of Hornell. 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
Chamberlain of the City of Hornell 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 the proper judicial orders
or as otherwise provided by law, it shall be unlawful for the City
Chamberlain of the City of Hornell or any agent, clerk or employee
of the City of Hornell 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
Hornell 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 Chamberlain
of the City of Hornell, may assist in the collection of such delinquent
taxes; or the inspection by the Corporation Counsel or other legal
representatives of the City of Hornell 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 secrecy provisions
shall be punishable by a fine not exceeding $1,000 or by imprisonment
not exceeding six months, or both; and if the offender is an officer,
agent, clerk or employee of the City of Hornell, he shall be dismissed
from office and shall be incapable of holding any office or employment
in the City of Hornell for a period of five years thereafter.
C.
Notwithstanding any provisions of this section, the
City Chamberlain of the City of Hornell may exchange with the chief
fiscal officer of any other city in the State of New York information
contained in returns filed under this Article, provided that such
other city grants similar privileges to the City of Hornell and provided
that such information is to be used for tax purposes only, and the
City Chamberlain of the City of Hornell, shall, upon request, furnish
the State Tax Commission with any information contained in such returns.
All taxes and penalties received by the City
Chamberlain of the City of Hornell for taxes herein or hereafter imposed
under this Article shall be handled and deposited by him in the general
fund of the City of Hornell.
