[Adopted 1-24-1972 by L.L. No. 1-1972 as
Ch. 36 of the 1972 Code]
[Amended 11-4-1991 by L.L. No. 4-1991]
Pursuant to the authority granted by Article
5, § 5-530, of the Village Law of the State of New York,
from on and after March 1, 1969, there is hereby imposed:
A.
A tax equal to 1% of the gross income of every utility
doing business in the Incorporated Village of Brightwaters 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.[1]
[1]
Editor's Note: Article 3-B of the Public Service
Law was repealed by Chapter 267 of the Laws of 1970. See now Transportation
Law § 240 et seq.
B.
A tax equal to 1% of the gross operating income of
every other utility doing business in the Incorporated Village of
Brightwaters which has an annual gross operating income in excess
of $500.
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
telephony or telegraph service, only receipts from transactions wholly
consummated within the Village.
In the case of any utility other than described
in the definition of "gross operating income" hereof:
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 same 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, with the Village 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, telephone 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, assignees 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, rapidtransit, subway
and elevated railroads.
Omnibus corporations subject to supervision
under Article 3-A of the Public Service Law.[1]
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.
[1]
Editor's Note: Article 3-A of the Public Service
Law was repealed by Chapter 267 of the Laws of 1970. See now Transportation
Law § 150 et seq.
This Article and the tax imposed thereby shall:
A.
Apply only within the territorial limits of the Village
of Brightwaters.
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 Brightwaters notwithstanding that some act
is necessarily performed with respect to such transaction within such
limits.
C.
Be in addition to any and all other taxes and fees
imposed by any other provisions of law.
D.
Apply to all subject income received on and after
March 1, 1969.
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
this Article 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, 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.
A.
Time of filing. Every utility subject to a tax hereunder
shall file, on or before March 1, a return for the 12 calendar months
preceding each return date, including any period for which the tax
imposed hereby or 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 of the owner or of 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 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 because 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 notice 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 this 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
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.
