[Adopted 11-14-1977 by L.L.
No. 27-1977 as Ch. 95, Art. I, of the 1977 Code]
A. The Village of Piermont, an incorporated Village, has
been subjected to, and continues to experience, growth with respect to population,
housing, economy, land developments and utilization of resources. In order
to keep abreast of these conditions, it has been necessary to institute and
maintain major programs of highway and sidewalk improvements, including, in
some cases, reconstruction thereof, to institute massive drainage programs,
to establish parks and to render public services and facilities on a scale
not contemplated by the Village.
B. The Board of Trustees of the Village of Piermont realizes
that in order for the Village government to continue rendering services to
its citizens of the degree and caliber to which they are entitled, increased
funds must be available to meet the growing needs of the community. The Board
of Trustees realizes further that such funds cannot come from real property
taxation alone and that the tax base of the Village must be broadened.
Pursuant to the authority granted by § 6-640 of the Village
Law of the State of New York, there is hereby imposed:
A. A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Piermont, which utility 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 Piermont which
has an annual gross operating income in excess of $500.
As used in this article, the following terms shall have the meanings
indicated:
GROSS INCOME
Includes:
A.
In the case of a utility engaged in selling telephones or telephonic
service, only receipts from local exchange service wholly consummated within
the Village.
B.
In the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within the Village.
C.
In the case of any utility other than described in Subsections
A and
B hereof:
(1)
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.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property emanating from the ownership
or use of or interest in such property.
(4)
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.
(5)
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 receipts thereof.
(6)
Profits from any transaction, except sales for resale and rentals, within
the Village whatsoever.
GROSS OPERATING INCOME
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, refrigeration, 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 service or other costs, interest or discount paid or any other
expense whatsoever.
PERSON
Persons, corporations, companies, associations, joint-stock associations,
copartnerships, estates, assignees of rents, any persons 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.
UTILITY
Includes:
A.
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; and omnibus corporations subject to supervision under Article 3-A
of the Public Service Law.
B.
Every person who sells gas, electricity, steam, water, refrigeration,
telephone or telegraph service delivered through mains, pipes or wires, whether
or not such person is subject to the supervision of the State Department of
Public Services.
C.
Every person who furnishes gas, electric, steam, water, refrigeration,
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 Piermont.
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 Piermont, 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 the
effective date of this article.
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 Clerk-Treasurer shall be the chief enforcement officer of
this article and shall make and be responsible for all collections hereunder.
She shall also have the power and authority to make any rules or regulations
or directives, not inconsistent with law, which, in her 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 certified
mail to all utilities subject to this article which register as such with
the Village Clerk-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 Clerk Treasurer may require,
and such records shall be preserved for a period of three years unless the
Village Clerk-Treasurer directs otherwise.
A. Time of filing. Every utility subject to a tax hereunder
shall file, on or before December 25 and June 25, a return for the six calendar
months preceding each return date, including any period for which the tax
imposed hereby, or any amendment hereof, is effective. However, any utility
whose average gross income or gross operating income for the aforesaid six-month
period is less than $3,000 may file a return annually on June 25 for the 12
calendar months preceding each return date, including any period for which
the tax imposed hereby, or any amendment hereof, is effective. Any utility,
whether subject to tax under this article or not, may be required by the Village
Clerk-Treasurer to file an annual return.
B. Contents. Returns shall be filed with the Village Clerk-Treasurer
on a form to be furnished by her 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 Clerk-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 of the owner
or a copartner thereof, or of 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 Clerk-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, except the first month, after
such return was required to be filed or such tax became due; but the Village
Clerk-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 Clerk-Treasurer, she may require at any time
a further or supplemental return which shall contain any data that may be
specified by her, and, if a corrected or sufficient return is not filed within
20 days after the same is required by notice from her, or if no return is
made for any period, the Village Clerk-Treasurer shall determine the amount
to be due from such information as she is able to obtain and, if necessary,
may estimate the tax on the basis of external indices or otherwise. She shall
give notification of such determination to the utility liable for such tax.
Such determination shall finally and irrevocably fix such tax, unless, within
one year after the giving of notice of such determination, the utility shall
apply to her for a hearing or unless the Village Clerk-Treasurer shall reduce
the same. After such hearing, the Clerk-Treasurer shall give notice of her
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 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 Clerk-Treasurer or the court
shall determine that such tax or penalty, or any portion thereof, was erroneously
or illegally collected, the Village Clerk-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 Clerk-Treasurer. However, no refund
shall be made of a tax or penalty paid pursuant to a determination of the
Village Clerk-Treasurer as hereinbefore provided, unless the Village Clerk-Treasurer,
after a hearing as hereinabove provided, or by her 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 Clerk-Treasurer may receive additional evidence
with respect thereto. After making her determination, the Village Clerk-Treasurer
shall give notice thereof to the person interested, and she 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 shall
have been duly made to the Village Clerk-Treasurer and she 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 Clerk-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 Clerk-Treasurer
and in order to further ensure payment of the tax imposed hereby, the Village
Clerk-Treasurer shall have the power to:
A. Prescribe the form of all reports and returns required
to be made hereunder.
B. Take testimony and proofs under oath with reference to
any matter hereby entrusted to him.
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
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
Clerk-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 Clerk-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.