[Adopted 3-21-1968 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] from, on and after April 1, 1968, there is hereby imposed:
A.
A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Garden City which is subject
to the supervision of the New York State Department of Public Service and
which has an annual gross income in excess of $500, except motor carriers
or brokers subject to such supervision under Article 3-B of the Public Service
Law.
B.
A tax equal to 1% of the gross operating income of every
other utility doing business in the Incorporated Village of Garden City which
has an annual gross operating income in excess of $500.
[1]
Editor's Note: For current provisions, see § 5-503
of the Village Law.
As used in this article, the following terms shall have the meanings
indicated:
Includes:
In the case of a utility engaged in selling telephony or telephone service,
only receipts from local exchange service wholly consummated within the village.
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within the village.
The words "gross income" in the case of any utility other than as described in Subsection A hereof shall include:
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 village,
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 deductions
therefrom on account of the cost of the property sold, the cost of the materials
used, labor or services or other costs, interest or discount paid or any other
expense whatsoever.
Profits from the sale of securities.
Profits from the sale of real property growing out of the ownership
or use of or interest in such property.
Profits from the sale of personal property (other than property of a
kind which would properly be included in the inventory of a taxpayer if on
hand at the close of the period for which a return is made).
Receipts from interest, dividends and royalties, derived from sources
within the village (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.
Profits from any transaction (except sales for resale and rentals) within
the village whatsoever.
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 village, including cash,
credits and property of any kind or nature, without 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.
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, 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 or leasing sleeping and
parlor railroad cars.
Persons engaged in the business of operating or leasing railroads other
than street surface, rapid transit, subway and elevated railroads.
Omnibus corporations subject to supervision under Article 3-A of the
Public Service Law.
Every person who sells gas, electricity, steam, water, refrigeration,
telephony or telegraphy delivered through mains, pipes or wires, whether or
not such person is subject to the supervision of the State Department of Public
Service.
Every person who 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.
This Article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Village
of Garden City.
B.
Not apply and the tax shall not be imposed on any transaction
originating or consummated outside of the territorial limits of the Village
of Garden City notwithstanding that some act be necessarily performed with
respect to such transaction within such limits.
C.
Be in addition to any and all other taxes.
D.
Apply to all subject income received on and after April
1, 1968.
All revenues resulting from the imposition of the tax imposed by 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.
The Village Treasurer shall be the chief enforcement officer of this
Article and shall make and be responsible for all collections hereunder. He
shall also have the power and authority to make any rules or regulations or
directives, not inconsistent with law, which, in his discretion, are reasonably
necessary to facilitate the administration of this Article and the collection
of the taxes imposed hereby. Copies of all such rules and regulations and
directives as may from time to time be promulgated shall be sent by registered
mail to all utilities subject to this Article which register as such with
the Village Treasurer. All such rules, regulations and directives shall be
deemed a portion of this Article.
Every utility subject to tax under this Article shall keep such records
of its business and in such form as the Village Treasurer may require, and
such records shall be preserved for a period of three years unless the Village
Treasurer directs otherwise.
A.
Time of filing. Every utility subject to a tax hereunder
shall file on or before July 25, October 25, January 25 and April 25 a return
for the three calendar months preceding each return date, including any period
for which the tax imposed hereby or by any amendment hereof is effective.
However, any utility whose average gross income or gross operating income
for the aforesaid three-month period is less than $3,000 may file a return
annually on April 25 for the 12 calendar months preceding each return date,
including any period for which the tax imposed hereby or by any amendment
hereof is effective. Any utility, whether subject to tax under this Article
or not, may be required by the Village Treasurer to file an annual return.
B.
Contents. Returns shall be filed with the Village Treasurer
on a form to be furnished by him for such purpose and shall show thereon the
gross income or gross operating income for the period covered by the return
and such other information, data or matter as the Village Treasurer may require
to be included therein. Every return shall have annexed thereto a certification
by the head of the utility making the same or by the owner or a copartner
thereof or by a principal corporate officer 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 the tax imposed hereby for the period covered
by such return. Such tax shall be due and payable at the time of the filing
of the return, or if a return is not filed when due, on the last day on which
the return is required to be filed.
Any utility failing to file a return or a 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, if satisfied that the delay was excusable, may remit all or any
portion of such penalty.
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.
In case any return filed pursuant to this Article shall be insufficient
or unsatisfactory to the Village Treasurer, he may require at any time a further
or supplemental return, which shall contain any data that may be specified
by him, 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 Village Treasurer shall determine the amount 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 notification
of such determination to the utility liable for such tax. Such determination
shall finally and irrevocably fix such tax, unless the utility against which
it is assessed shall, within one year after the giving of notice of such determination,
apply to him for a hearing or unless the Village Treasurer, of his own motion,
shall reduce the same. After such hearing he shall give notice of his decision
to the utility liable for such tax.
Any final determination of the amount of any tax payable hereunder shall
be reviewable for error, illegality or unconstitutionality or any other reason
whatsoever by a proceeding under Article 78 of the Civil Practice Law and
Rules if the proceeding is commenced within 90 days after the giving of notice
of such final determination; provided, however, that any such proceeding under
said Article 78 shall not be instituted unless the amount of any tax sought
to be reviewed, with such interest and penalties thereon as may be provided
for by local law, ordinance or resolution, shall be first deposited and an
undertaking filed, in such amount and with such sureties as a Justice of the
Supreme Court shall approve, to the effect that if such proceeding is dismissed
or the tax confirmed the petitioner will pay all costs and charges which may
accrue in the prosecution of such proceeding.
Any notice authorized or required under the provisions of this Article
may be given by mailing the same to the utility for which it is intended,
in a postpaid envelope, addressed to such utility at the address given by
it in the last return filed by it 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 utility
to which addressed. Any period of time which is determined according to the
provisions of this section by the giving of notice shall commence to run from
the date of mailing of such notice.
If, within one year from the giving of notice of any determination or
assessment of any tax or penalty, the person liable for the tax shall make
application for a refund thereof and the Village Treasurer or the court shall
determine that such tax or penalty or any portion thereof was erroneously
or illegally collected, 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
hereinbefore 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 in the manner provided in the
Civil Practice Law and Rules that such determination was erroneous or illegal.
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
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 commence a proceeding to
review such determination, in accordance with the provisions of the following
section hereof.
Where any tax imposed hereunder shall have been erroneously, illegally
or unconstitutionally collected and application for the refund thereof duly
made to the Village Treasurer and he shall have made a determination denying
such refund, such determination shall be reviewable by a proceeding under
Article 78 of the Civil Practice Law and Rules; provided, however, that such
proceeding is instituted within 90 days after the giving of the notice of
such denial, that a final determination of tax due was not previously made
and that an undertaking is filed with the Village Treasurer, in such amount
and with such sureties as a Justice of the Supreme Court shall approve, to
the effect that if such proceeding is dismissed or the tax confirmed the petitioner
will pay all costs and charges which may accrue in the prosecution of such
proceeding.
Except in the case of a willfully false or fraudulent return with the
intent to evade the tax, no assessment or additional tax shall be made with
respect to taxes imposed under this Article, after the expiration of more
than three years from the date of filing of a return; provided, however, that
where no return has been filed as required hereby, the tax may be assessed
at any time.
In addition to any other powers herein given to the Village Treasurer
and in order to further ensure payment of the tax imposed hereby, he shall
have the power to:
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 of the Tax Law is made a lien.
