[Adopted 11-22-1971 as Ch. 68 of the 1970
Code]
Pursuant to the authority granted by § 6-640
of the Village Law of the State of New York,[1] a tax equal to 1% of its gross income from and after the
first day of January 1971 is hereby imposed upon every utility doing
business in the Village of Port Jefferson which is subject to the
supervision of the State Department of Public Service, 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,[2] and a tax equal to 1% of its gross operating income from
and after the first day of January 1971, is hereby imposed upon every
other utility doing business in the Village of Port Jefferson 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 Village of Port Jefferson, 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 of the territorial limits of the Village of
Port Jefferson, notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
As used in this Article, the following words
shall mean:
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 the gross income), made or service rendered for ultimate consumption
or use by the purchaser in the Village of Port Jefferson, 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 costs, 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 profit 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 Village of Port Jefferson 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 Village of Port Jefferson whatsoever; provided,
however, that the words "gross income" shall include, in the case
of a utility engaged in selling telephony or telephone service, only
receipts from local exchange service wholly consummated within the
Village of Port Jefferson and, in the case of a utility engaged in
selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village of Port Jefferson.
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, telephony, telegraphy or in or by reason of the
furnishing for such consumption or use of gas, electric, telephone
or telegraph service in the Village of Port Jefferson, 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 assignee of rents, any person
acting in a fiduciary capacity or any other entity and persons, their
assignees, lessees, trustees or receivers 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 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 sells gas, electricity, 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.
Every utility subject to such tax under this
Article shall keep such records of its business and in such form as
the Village Treasurer of the Village of Port Jefferson may require,
and such records shall be preserved for a period of three years, except
that the Village Treasurer of the Village of Port Jefferson 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 April 25, July 25, October 25 and January 25, a
return for the three calendar months preceding each such return date
or any portion thereof for which the tax imposed is hereby effective;
provided, however, that any utility whose average gross income or
average gross operating income, as the case may be, for the aforesaid
three-month period is less than $1,500 may file a return annually
on April 25 for the 12 preceding calendar months or any portion thereof
for which the tax imposed hereby is effective. Every return shall
state the gross income or gross operating income for the period covered
thereby. Returns shall be filed with the Village Treasurer of the
Village of Port Jefferson on a form to be furnished by him for such
purpose and shall contain such other data, information or matter as
he may require to be included therein. The Village Treasurer of the
Village of Port Jefferson, in order to ensure payment of the tax imposed,
may require at any time a further supplemental return, which shall
contain any data that may be specified by him, and he may require
any utility doing business in the Village of Port Jefferson to file
an annual return, which shall contain any data specified by him, regardless
of whether the utility is subject to tax under this Article. 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 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 Village Treasurer of
the Village of Port Jefferson 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 Village Treasurer of
the Village of Port Jefferson 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
of the Village of Port Jefferson 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.
He 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
Village Treasurer of the Village of Port Jefferson for a hearing,
or unless the Village Treasurer of the Village of Port Jefferson of
his own motion shall reduce the same. After such hearing, the Village
Treasurer of the Village of Port Jefferson shall give notice of his
decision to the person liable for the tax. Such decision 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 90
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
first be deposited with the Village Treasurer of the Village of Port
Jefferson 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 is dismissed or the tax is confirmed,
the applicant 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, 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. Except in the case
of a willfully false or fraudulent return with intent to evade the
tax, no assessment of additional tax shall be made after the expiration
of more than three years from the date of the filing of a return;
provided, however, that where no return has been filed as required
by this Article, the tax may be assessed at any time.
Any notice authorized or required under the
provisions of this Article may be given by mailing the same to the
persons 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 mailing of such notice.
Any person failing to file a 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 of the Village of Port Jefferson,
for cause shown, may extend the time for filing any return and, if
satisfied that the delay was excusable, may remit all or any portion
of the penalty fixed by the foregoing provisions of this section.
If within one year from the payment of any tax
or penalty the payer thereof shall make application for a refund thereof
and the Village Treasurer of the Village of Port Jefferson or the
court shall determine that such tax or penalty or any portion thereof
was erroneously or illegally collected, the Village Treasurer of the
Village of Port Jefferson 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 of the Village of Port Jefferson.
However, no refund shall be made of a tax or penalty paid pursuant
to a determination of the Village Treasurer of the Village of Port
Jefferson as hereinbefore provided unless the Village Treasurer, or
of his 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 Village Treasurer of the Village
of Port Jefferson may receive additional evidence with respect thereto.
After making his determination, the Village Treasurer of the Village
of Port Jefferson 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 provision 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 Village Attorney shall, upon
the request of the Village Treasurer of the Village of Port Jefferson,
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 of the Village of Port Jefferson. 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 Village
Treasurer of the Village of Port Jefferson shall have the power to
make such reasonable rules and regulations, not inconsistent with
the law, as may be necessary for the exercise of his powers and the
performances 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 proper judicial order or
as otherwise provided by law, it shall be unlawful for the Village
Treasurer of the Village of Port Jefferson or any agent, clerk or
employee of the Village of Port Jefferson 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 Village of Port Jefferson in any 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 Village Treasurer of the Village of Port
Jefferson, may assist in the collection of such delinquent taxes or
the inspection by the Village Attorney or other legal representative
of the Village of Port Jefferson 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 $250 or by imprisonment
for not more than 15 days, or both, and, if the offender is an officer,
agent, clerk or employee of the Village of Port Jefferson, he shall
be dismissed from office and shall be incapable of holding any office
or employment in the Village of Port Jefferson for a period of five
years thereafter.
[Amended 6-11-1992 by L.L. No. 4-1992]
C.
Notwithstanding any provisions of this Article, the
Village Treasurer of the Village of Port Jefferson may exchange with
the Chief Fiscal Officer of any city or any other Village in the State
of New York information contained in returns filed under this Article,
provided that such city or other Village grants similar privileges
to the Village of Port Jefferson, and provided that such information
is to be used for tax purposes only, and the Village Treasurer of
the Village of Port Jefferson shall, upon request, furnish the State
Tax Commission with any information contained in such returns.
All taxes and penalties received by order of
the Village Treasurer of the Village of Port Jefferson under this
Article shall be paid into the treasury and shall be credited to and
deposited in the general fund of the Village.
