[Adopted as Subpart J of the 1970 Municipal
Code]
As used in this Article, the following terms
shall have the meanings indicated:
The officer in whom the Common Council shall vest the powers
and duties of administering the law and provisions of this Article.
Includes an individual, partnership, society, association,
joint-stock company, corporation, estate, receiver, trustee, assignee,
combination of any group of individuals and any person acting in a
fiduciary and representative capacity appointed by a court or otherwise.
A person who purchases tangible personal property the receipts
from which are taxable under this Article.
The amount of the sale price of tangible personal property
valued in money, whether received actually in money or otherwise in
the trade-in or exchange of property of any kind or nature or otherwise
as a credit. In arriving at the sale price, no deduction shall be
allowed for the cost of the personal property to the vendor nor other
expense, such as material used, transportation of service cost, interest
or discount.
The report of sales required by this Article and rules and
regulations of the director.
Any transfer of title or possession or both, exchange or
barter, license to use, license to consume, conditional or otherwise
in any manner of means whatsoever for a consideration or any agreement
therefor of tangible personal property.
Includes all corporeal personal property of every kind and
nature and shall include gas, electricity, steam and refrigeration.
The exercise of any right or power over tangible personal
property by a purchaser to consume, wear or use in any manner for
any purpose for any period of time, to place in storage and to affix
to any real property, except a purchase for purposes of resale.
A person selling tangible personal property upon the receipts
from which a tax is imposed by this Article. Whenever the principal
is undisclosed to the director, the term shall include any agent,
salesman, canvasser, distributor or other person representing the
undisclosed principal employer or supervisor and he shall be jointly
responsible for the collection and payment of the tax imposed under
this Article.
A.
Imposition of tax. Effective June 1, 1968, there shall
be paid a tax of 2% upon the amount of the receipts from every retail
sale and sale at retail of tangible personal property within the City
of Hornell, except as hereinafter made exempt from the tax. In addition
to the sale of such tangible personal property, the tax is imposed
on the same services of producing, fabricating, processing and printing,
and including the repair, alterating or reconditioning of tangible
personal property on behalf of the owner thereof to refit it for the
use for which it was originally produced, except as hereinafter made
exempt from such tax.
B.
Exemptions. The following sales of tangible personal
property shall be exempt from the imposition of the tax:
(1)
A sale for purposes of resale in the form of tangible
personal property.
(2)
A sale consummated prior to March 1, 1961.
(3)
A sale for the purpose of incorporation of such property,
as a material or a part, into or for use or consumption directly and
limited exclusively in the production of tangible personal property
for sale by manufacturing, processing, assembling, refining, mining,
extracting, farming, agriculture, horticulture or floriculture.
(4)
A sale of food and food products sold for human consumption,
including but not limited to cereals and cereal products, milk and
milk products, meat and meat products, fish and fish products, eggs
and egg products, vegetables and vegetable products, fruits, spices
and salt, sugar and sugar products, candy and confectionery, coffee
and coffee substitutes, beer or similar malt beverages, tea, cocoa
and cocoa products, water when delivered to the consumer through mains
or pipes, drugs, medicines, eye glasses, hearing aids, artificial
limbs and other similar devices to correct or alleviate physical incapacities
or handicaps when sold upon a physician's prescription, eye glasses
furnished upon an optometrist's prescription, newspapers and periodicals
and cigarettes. Soft drinks, sodas and beverages as are ordinarily
dispensed at bars and soda fountains, other than those mentioned as
exempt, shall be taxable.
(5)
A sale by or to the United States, the United Nations
or other similar worldwide organization of which the United States
is a member or a public corporation created by compact between states
or between nations.
(6)
A sale by or to the State of New York or any county,
city, town, village, school district, fire district, special improvement
district or other civil division or public authority where it is the
seller, purchaser, user or consumer, except sales of gas and electricity
by a municipally owned system, which is taxable.
(7)
A sale to any person or group of persons, such as
a corporation, association, society, trust, fund, foundation or community
chest, when operated exclusively for religious, charitable or educational
purposes or prevention of cruelty to children or animals and no part
of any net earnings inures to the benefit of any private shareholder
or individual. A sale to any person carrying on a business or trade
for profit is taxable, even though a portion of its earnings is paid
to such nonprofit organization.
(8)
A sale when the property is delivered or caused to
be delivered to a purchaser residing or having his place of business
outside the City of Hornell.
(9)
A sale of an automobile or other conveyance to veterans
of the armed forces of the United States as may be determined by the
President of the United States or concurrent resolution adopted by
Congress under the provisions of the laws of the United States.
A.
Imposition of tax. Effective June 1, 1968, there shall
be paid a tax of 2% upon the use of tangible personal property within
the City of Hornell when purchased at retail, except as hereinafter
made exempt from the tax. A nonresident of the City of Hornell shall
be deemed a resident of the City of Hornell and holding for the tax
imposed when the person lives, is the owner of real property or carries
on any business, trade, profession, vocation or commercial activity
within the City of Hornell.
B.
Exemptions. The following uses of tangible personal
property purchased at retail shall be exempt from the imposition of
the tax:
(2)
A use following a purchase of tangible personal property
consummated prior to March 1, 1961.
(3)
A use of tangible personal property purchased at retail by a person or unit of government entitled to an exemption from the imposition of the sales tax under the provisions of § 280-16 of this Article.
(4)
A use of tangible personal property upon which a compensating
use tax was imposed or is subject to a compensating use tax to be
imposed by any other state or any political subdivision of this or
another state.
(5)
A use of paper in the publication of newspapers and
periodicals.
(6)
A use by which the tangible personal property is converted
into or becomes a part of or is attached to any to be sold with, any
produce produced or manufactured for purposes or sale or resale at
retail.
(7)
Where the aggregate amount paid by any one user from
a vendor located outside the city does not exceed $25 during any quarterly
period of a calendar year.
A.
Imposition of the tax. Effective June 1, 1968, there
shall be paid a tax of 2% upon the receipts of sales of alcoholic
beverages at retail to be consumed on the premises by a human being
in restaurants, cafes, bars and similar establishments within the
City of Hornell, except as hereinafter made exempt from the tax.
On or before June 1, 1968, each vendor in the
City of Hornell shall file in the office of the Director a certificate
of registration in such form and content as the Director may prescribe.
Vendors opening business within the City of Hornell after June 1,
1968, shall file in the office of the Director such certificate or
registration within 10 days after the commencement or opening of business.
A vendor selling tangible personal property outside the City of Hornell
to be used by a purchaser within the city may likewise file a certificate
of registration.
Upon the filing of the certificate or registration,
the Director shall issue to a vendor a certificate of power and authority
to collect the tax herein imposed from the purchaser. The certificate
shall not name the vendor and the location of his business. The certificate
shall not be assignable nor transferable and shall be surrendered
to the Director upon ceasing to do business. A sufficient number of
duplicate certificates shall be furnished to the vendor to be prominently
displayed in the place of business. A vendor having no regular place
of business shall display the certificate upon the stand, truck or
other merchandising device. The failure of a vendor within the city
to possess and display the certificate shall not relieve him from
the payment of the tax herein imposed and which should have been imposed
and collected from the purchaser.
Every vendor within the city, whether he possesses
the certificate of authority or not, shall, at the time of making
the sale, become responsible to collect the tax and becomes liable
for any amount which should have been collected from the purchaser.
The tax shall be charged and collected separate from the sale price.
No vendor shall advertise or hold out to the public that the tax is
not considered an element in the price charged the purchaser.
Whenever a tax has not been collected by a vendor
located within the city, the purchaser may pay the same to the Director.
The purchaser shall be liable and he shall pay to the Director any
use tax imposed by this Article upon which the tax has not been paid
by the vendor.
Under such restrictions as the Common Council
may impose, the Director is empowered to adopt schedules and methods
of determining, in a practical manner, the amount of the tax to be
paid to the Director and to avoid fractions of a cent and details
of each and every sale.
In the administration of this Article and to
prevent evasion of the tax, all sales of tangible personal property
at retail and all purchases upon which a use tax is imposed and all
sales of alcoholic beverages to be consumed upon the premises by human
beings are presumed to be subject to the tax until the contrary is
established by the person liable to pay the same. The Director shall
furnish all necessary certificates or other forms for use by vendors
and purchasers showing sales for purposes of resale or otherwise rendering
the transaction exempt from the tax.
A.
The Director shall keep such books and records as
shall be prescribed by the State Department of Audit and Control and
by the Common Council.
B.
Each vendor and purchaser located within the city
shall keep such books and records as the Director may prescribe, and
they shall be open to inspection and examination by the Director and
any duly authorized representative of the Director. Such books and
records shall not be destroyed except in accordance with a direction
or rule of the Director.
C.
Each vendor within the city shall file with the Director
a quarterly return of the taxes in such form and contents as the Director
may prescribe. The Director may by direction or rule fix a different
period for practical reasons. The Director may fix a different period
for vendors located outside the city to whom authority has been granted
to collect the use tax and for the return by purchasers.
D.
Every return shall be kept secret, and neither the
Director nor any of his authorized representatives or employees shall
divulge or make known any information contained in the certificate
of registration or return relating to the business of the person filing
the same, except as may be authorized by law.
E.
New, amended and corrected returns may be required
by the Director at any time upon such reasonable notice as the Director
may prescribe.
All taxes collected by a vendor shall be deemed
held in trust for the City of Hornell. At the time of filing the return
and for the period covered by the return, the vendor and purchaser
shall pay the Director the amount of all taxes collected under this
Article or purported to have been collected under this Article.
Whenever the Director has reason to believe
a vendor is about to cease business, abscond, dissipate his assets
or for any other cause whereby the payment of the tax is rendered
insecure, he may require such vendor to furnish a bond with surety
authorized to do business in the State of New York in such reasonable
amount as the Director deems adequate. Such bond shall be furnished
within five days after demand by the Director, in writing, unless
within that period the vendor demands a hearing thereon at which the
necessity for the bond and the amount shall be determined by the Director.
In lieu of such bond, the Director is authorized to accept cash to
be held in escrow until the amount of the tax is determined.
A.
The Director shall determine the amount of the tax
due the City of Hornell.
B.
If a return has not been filed or is incorrect or
the amount paid with the return is not correct, the Director may require
an amended or supplemental return or he may determine the tax from
the best information he has available and notify the vendor or purchaser
of such tax.
A.
Review before Director. Within 90 days after the Director
has given notice of the amount of the tax, a vendor or purchaser may
demand a review before the Director. The Director shall grant such
hearing upon not less than 10 days' notice in writing. The hearing
may be held before the Director or one of his staff authorized to
do so by him, and counsel for the vendor and purchaser may attend
and examine all witnesses, documents and records. Adequate minutes
and testimony shall be taken down, upon which a proper return can
be prepared for a review in the Supreme Court as hereinafter provided.
After such hearing, the Director shall determine the tax, and it shall
be final.
B.
Review under Article 78 of the Civil Practice Law
and Rules. The final tax as determined by the Director shall be reviewable
by a proceeding under Article 78 of the Civil Practice Law and Rules.
Such proceeding may not be instituted without a payment of the tax
and interest to be held in escrow by the City Treasurer or by furnishing
an undertaking in such amount and with such sureties as the Supreme
Court may determine to the effect that, if the proceeding be dismissed
or the tax is confirmed, the petitioner will pay the tax and all costs.
Within five days after the receipt of any moneys
collected under this Article, the Director shall pay the same over
to the City Treasurer of the City of Hornell. The City Treasurer shall
keep such books and records as may be prescribed by the State Department
of Audit and Control and by the Common Council.
A.
Whenever any moneys have been held in escrow or the
Director determines that the vendor or purchaser is entitled to a
refund of a part of all of the tax and interest paid by him, he shall
issue a warrant to the City Treasurer directing such payment. The
warrant shall state the reason for the refund and amount.
B.
In a proper case, the Director may credit the amount
of a refund upon payments due from the vendor or purchaser.
C.
The Director shall furnish to vendors and purchasers the form and content of applications for a refund. An application for a refund shall be deemed a demand for a review before the Director, and the same rights and procedure shall govern as provided in § 280-29.
D.
No refund shall be granted when the vendor or purchaser
has failed to avail himself of the remedies provided in the Article.
A.
Interest on tax. Interest on unpaid taxes shall be
at the rate of 6% per annum calculated from the date the tax becomes
due to the city.
B.
Docketing tax warrant. Whenever a tax shall remain
unpaid for a period of 10 days after it has become due and payable
to the city, the Director may docket in the City Clerk's office of
Hornell a warrant in such form and content as he shall prescribe to
give the same information as a judgment docketed in that office. The
warrant shall be deemed a judgment for all intents and purposes of
the law, and the City Clerk may issue an execution thereon in the
same manner as upon a transcript of judgment from a court not of record.
Transcripts of the judgment may be issued and enforced in the same
manner as other judgments.
C.
Action to recover tax. As an additional and alternative
remedy, the Director may refer the unpaid tax to the City Attorney;
and upon request of the Director, the City Attorney shall bring an
action to enforce payment of the tax.
D.
Warrant to the Sheriff. Whenever the Director has
good reason to believe that the vendor or purchaser owing the tax
part past due has ceased business or is about to cease business or
to abscond or otherwise dissipate his assets and with intent to make
the tax uncollectable, the Director may issue a warrant directed to
the Sheriff and empowering him to levy and sell any real or personal
property of the tax debtor and to make return thereof to the Director
within 60 days. The warrant may be extended by the Director, and the
same procedure shall be followed as govern sales of real and personal
property under a property execution under the provisions of the Civil
Practice Law and Rules.
E.
Limitations of time. Whenever an error has been made
in any return or in the tax paid and the Director shall discover the
error, he shall notify the vendor or purchaser and make an added assessment
of the tax or refund, as the case may be. No added assessment of tax
shall be imposed more than three years after the return was filed.
When no return was filed, an assessment of the tax can be imposed
at any time. By agreement, in writing, signed by the Director and
the vendor or purchaser, the limitation of time can be extended.
This Article shall be administered and interpreted
to avoid the payment of more than one tax on the sale of tangible
personal property at retail or upon the use of tangible personal property.
Any notice authorized or directed by this Article
shall be in writing and either served personally or by mail to the
last known address appearing in the records in the office of the Director
from information furnished by the person. Mail not returned by the
postal authorities shall be presumptive evidence that it was received.
Periods of time shall start to run from the personal service or mailing.
Subject to such restrictions as may be imposed
by law and by the Common Council, the Director shall have the power
to:
A.
Make, adopt and amend rules and regulations appropriate
and deemed necessary to administer the powers and duties granted under
this Article.
B.
Require, furnish and prescribe the form and contents
of applications, certificates, returns, notices and other papers deemed
necessary to properly administer the powers and duties granted under
this Article.
C.
Extend the time to any vendor or purchaser to file
returns and other reports.
D.
Prescribe the books and records to be kept by a vendor
or purchaser.
E.
Assess, reassess, determine, revise, adjust, readjust
and compromise the taxes imposed by this Article.
F.
Delegate to any employee the authority, in writing,
to inspect the books and records of a vendor or purchaser, to conduct
hearings and to perform other acts deemed necessary to administer
this Article.
G.
Administer an oath to a witness and take oaths on
any papers filed in his office, and this power may be delegated to
any employee of his office.
H.
Issue and cause to be served a subpoena to require
the attendance of a witness and the production of books and records
pertinent to the performance of powers and duties under this Article.
I.
Request information of the Treasury Department of
the United States and State Department of Taxation and Finance and
any other source of information pertinent to the performance and duties
under this Article.
J.
Prescribe methods of determining the value of tangible
personal property.
K.
Have such powers and perform such duties as may be
provided by law or by the Common Council.
All moneys collected under this Article shall
be paid into the treasury of the city and shall be credited to and
deposited in the general fund thereof and used for general city purposes.
