[Adopted 3-28-1991 by L.L. No. 2-1991 as
Ch. 180 of the 1991 Code]
A.
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, a tax equal to 1%
of its annual gross income for the period from July 1 to June 30 of
each and every year is hereby imposed upon every utility doing business
in the City of Auburn which has a gross 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,[1] and a tax equal to 1% of its gross operating income is
hereby imposed for the same period upon every other utility doing
business in the City of Auburn which has a gross operating income
for the 12 months ending May 31 in excess of $500, which taxes shall
have application only within the territorial limits of the City of
Auburn and shall be in addition to any and all other taxes and fees
imposed by any other provision of law for the same period.
[1]
Editor's Note: Article 3-b of the Public Service
Law was repealed by L. 1970, c. 267. For current provisions, see § 240
of the Transportation Law.
B.
Such taxes shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the
City of Auburn, notwithstanding that some act is necessarily performed
with respect to such transaction within such limits.
C.
All of the provisions of § 186-a of the
Tax Law, so far as the same are applicable, shall apply to the taxes
imposed by this article.
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; provided, however, that gross income
with respect to the sale of telephony or telegraphy or the furnishing
of telephone or telegraph service, except as otherwise provided with
respect to the provision of carrier access service to interexchange
carriers, shall include receipts received in or by reason of all sales
made or service furnished in this City (whether or not for ultimate
consumption or use by the purchaser), but if telephony or telegraphy
which is sold in this City by a utility or telephone or telegraph
service which is furnished in this City by a utility is then resold
by the purchaser with respect to such a sale, there shall be allowed
a deduction from the receipts of such purchaser from the resale the
amount paid to his seller or furnisher for such telephony or telegraphy
or telephone or telegraph service, provided further that receipts
of an exchange carrier paid by interexchange carriers for the provision
of carrier access which is resold by such interexchange carriers shall
be excluded from the gross income of such exchange carrier, and no
deduction shall be allowed to such interexchange carriers for the
amount so paid for such access 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 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;
provided, however, that gross operating income with respect to the
sale of telephony or telegraphy or the furnishing of telephone or
telegraph service shall, except as otherwise provided with respect
to the provision of carrier access service to interexchange carriers,
include receipts received in or by reason of all sales made or service
furnished in this City (whether or not for ultimate consumption or
use by the purchaser), but if telephony or telegraphy which is sold
in this City by a utility or telephone or telegraph service which
is furnished in this City by a utility is then resold by the purchaser
with respect to such a sale, there shall be allowed a deduction from
the receipts of such purchaser from the resale the amount paid to
his seller or furnisher for such telephony or telegraphy or telephone
or telegraph service, provided further that receipts of an exchange
carrier paid by interexchange carriers for the provision of carrier
access service which is resold by such interexchange carriers shall
be excluded from the gross operating income of such exchange carrier,
and no deduction shall be allowed to such interexchange carriers for
the amount so paid for such access service.
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, 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 City 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, and the
words "interexchange carrier" shall mean and include any seller of
telephone service between two or more exchanges that qualifies as
a common carrier with the meaning of Subsection (h) of § 153
of Title 47 of the United States Code or, if performing intrastate
telephone service only, would otherwise qualify but for the fact that
it was not engaged in providing interstate or foreign telephone service.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the City
Treasurer may require, and such records shall be preserved for a period
of three years, except that the City Treasurer may consent to their
destruction within that period or may require that they be kept longer.
A.
Quarterly returns. 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 previous unreported 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.
B.
Form and contents. Returns shall be filed with the
City Treasurer on a form to be furnished by him or her for such purpose
and shall contain such other data, information or matter as the City
Treasurer may require to be included therein.
C.
Annual returns. 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 Treasurer may require
any utility doing business in the City to file an annual return, which
shall contain any data specified by the City Treasurer, regardless
of whether the utility is subject to tax under this article.
D.
Supplemental returns. The City Treasurer, in order
to insure 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 City Treasurer.
E.
Affidavit required. Every return shall have annexed
thereto an affidavit of the head of the utility making the same, 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 Treasurer 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.
A.
Determination of tax for insufficient returns. In
case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the City Treasurer, and if a corrected or sufficient
return is not filed within 20 days after the same is required by notice
from the City Treasurer, or if no return is made for any period, the
City Treasurer shall determine the amount of tax due from such information
as he or she is able to obtain and, if necessary, may estimate the
tax on the basis of external indices or otherwise.
B.
Notice of determination; time limit to review. The
City 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 City Treasurer for a hearing or unless the City Treasurer,
of his or her own motion, shall reduce the same. After such hearing,
the City Treasurer shall give notice of his or her decision to the
person liable for the tax.
C.
Court review. The decision of the City Treasurer may
be reviewed by a proceeding under Article 78 of the Civil Practice
Law and Rules, 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 penalties thereon, if any, shall be first deposited with the
City Treasurer and an undertaking filed with him or her in such amount
and with such sureties as a Justice of the Supreme Court shall approve,
to the effect that, if such 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 proceeding, or, at the option of
the applicant, such undertaking may be in a sum sufficient to cover
the tax, penalties, costs and charges as aforesaid, in which event
the applicant shall not be required to pay such tax 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 or her in the last return
filed by him or her 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 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 Treasurer,
if satisfied that the delay was excusable, may remit all or any portion
of such penalty.
A.
Generally. 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 Treasurer or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the City 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 City Treasurer. However, no refund
shall be made of a tax or penalty paid pursuant to a determination
of the City Treasurer as hereinbefore provided unless the City Treasurer,
after a hearing as hereinbefore provided, or of his or her own motion,
shall have reduced the tax or penalty or it shall have been established
in an Article 78 proceeding of the Civil Practice Law and Rules that
such determination was erroneous or illegal. All refunds shall be
made out of moneys collected under this article.
B.
Procedure; review. 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 Treasurer may receive
additional evidence with respect thereto. After making his or her
determination, the City Treasurer shall give notice thereof to the
person interested, and he or she shall be entitled to an order to
review such determination under Article 78 of the Civil Practice Law
and Rules 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 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 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 City 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 are made a
lien.
In the administration of this article the City
Treasurer shall have power to make such reasonable rules and regulations
not inconsistent with law as may be necessary for the exercise of
his or her powers and the performance of his or her 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 or her official duty under this article and to subpoena and require
the attendance of witnesses and the production of books, papers and
documents.
A.
Generally. Except in accordance with the proper judicial
order or as otherwise provided by law, it shall be unlawful for the
City Treasurer, or any agent, clerk or employee of the City, 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 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 is pertinent
to the action or proceeding and no more.
B.
Limited use. 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 or her or 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 Treasurer
may assist in the collection of such delinquent taxes, or the inspection
by the Corporation Counsel or other legal representatives of the City
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.
C.
Penalties for breach. Any offense against the foregoing
secrecy provision 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, he or she shall
be dismissed from office and shall be incapable of holding any office
or employment in the City for a period of five years thereafter.
D.
Exchange of information. Notwithstanding any provisions
of this article, the City Treasurer 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 such other City grants
similar privileges to the City and provided such information is to
be used for tax purposes only, and the City Treasurer shall, upon
request, furnish the State Tax Commission with any information contained
in such returns.
All taxes and penalties received by the City
Treasurer for the taxes heretofore or hereafter imposed under this
article shall be credited and deposited by him or her in the general
fund of the City.
The City does hereby exempt the Auburn Transit
Corporation, a corporation operating buses in the City, from the utility
tax imposed pursuant to § 20-b of the General City Law.
