[Adopted 2-2-1953 by L.L. No. 2-1953]
[Amended 6-15-1998 by L.L. No. 3-1998]
Pursuant to the authority granted by § 5-530 of the Village Law of the State of New York, a tax equal to 1% of its gross income from and after the first day of June, 1953, is hereby imposed upon every utility doing business in the Village of Hamburg which is subject to the supervision of the State Department of Public Service, which has a gross income for the 12 months ending May 31st 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 from and after the first day of June, 1953, is hereby imposed upon every other utility doing business in the Village of Hamburg which has a gross operating income for the 12 months ending May 31st in excess of $500, which taxes shall have application only within the territorial limits of the Village of Hamburg, 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 Hamburg, notwithstanding that some act be necessarily performed with respect to such transaction within such limits.
[1]
Editor's Note: Article 3-b of the Public Service Law was repealed by Chapter 267 of the Laws of 1970. See now § 240 of the Transportation Law.
[Amended 6-15-1998 by L.L. No. 3-1998]
The terms used in this article shall have the meanings provided in § 186-a, Subdivision 2, of the Tax Law and § 5-530 of the Village Law.
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, except that the Village Treasurer may consent to their destruction within that period or may require that they be kept longer.
[Amended 11-1-1976 by L.L. No. 22-1976]
A. 
Every public utility subject to tax hereunder shall file on or before the 15th day of March of each year a rate for the year ended on the preceding December 31, except that the year ended December 31, 1976, shall be deemed for purposes of this section to have commenced on June 1, 1976, including any period for which the tax imposed hereby is effective.
B. 
Every return shall state the gross income or gross operating income for the period covered thereby. Returns shall be filed with the Village Treasurer on a form to be furnished by the Treasurer for such purpose and shall contain such other data, information or matter as he or she may require to be included therein.
C. 
The Village Treasurer, in order to ensure 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 him or her, and the Treasurer may require any utility doing business in the Village of Hamburg to file an annual return which shall contain any data specified by him or her, regardless of whether the utility is subject to tax under this article.
D. 
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 of a principal officer of the corporation if such business be conducted by a corporation, to the effect that the statements contained therein are true.
[Amended 11-1-1976 by L.L. No. 22-1976]
A. 
All taxes and fees imposed by this article which are payable to the Village of Hamburg shall be due and payable at the time of filing the return required by § 212-5 hereof or in case such return is not filed when due on the last day specified for filing thereof.
B. 
Failure to pay tax.
(1) 
If any corporation, association, joint-stock company, incorporated company, person, partnership or other entity liable to pay any such tax or any portion thereof shall, without intent to evade such tax, fail to pay any such tax when due, there shall be paid in addition to the amount of such tax, a sum as set forth in Chapter 1, General Provisions, Article II, § 1-14, Penalties assessed against unpaid taxes, sewer rents and invoices.
[Amended 4-19-1999 by L.L. No. 2-1999]
(2) 
If any corporation, association, joint-stock company, unincorporated company, person, partnership or other entity, with intent to evade any such tax, shall fail to pay the same when due, such tax shall be doubled and the doubled tax shall be increased by 1% for each month or fraction of a month from the time the tax was originally due to the date of payment.
C. 
Every corporation, association, joint-stock company, unincorporated company, person, partnership or other entity failing to make any return required by this article within the time specified for the making thereof or failing to make any special report required by the Clerk-Treasurer of the Village of Hamburg, within any reasonable time to be specified by him, shall be liable to a penalty of not more than $1,000 to be assessed and collected in the manner provided for the assessment and collection of real property or in a civil action at the instance of the Board of Trustees, and any officer or agent of any such corporation, association, joint-stock company, unincorporated company, or other entity, or person or member of a partnership or other entity making or certifying a false or fraudulent report or statement with intent to defeat or evade the payment of the taxes prescribed by this article shall be liable to a penalty of not more than $500, to be assessed and collected in like manner.
D. 
The Board of Trustees in its discretion may modify the penalties or additional amounts provided in this section without regard to whether such penalties or additional amounts have been included in a statement of account or an application for revision of such account has been filed.
E. 
Each such tax shall be a lien and binding upon the real and personal property of the corporation, joint-stock company, association, unincorporated company, person, partnership or other entity liable to pay the same, situate in the Village of Hamburg, until the same is paid in full. But the lien of each such tax shall be subject to the lien of any mortgage indebtedness existing against real property previous to the time when the tax became a lien and where such mortgage indebtedness has been incurred in good faith and was not given, directly or indirectly, to any officer or stockholder of the corporation owning such real property, whether as a purchase money mortgage or otherwise, and shall also be subject to the lien of local taxes and assessments, without regard to when the lien for such taxes and assessments may have accrued. In any action to foreclose any such mortgage, or to foreclose the lien of local taxes or assessments, to which the Village of Hamburg shall have been made a party defendant by reason of the existence of a lien for any such tax or, if no such tax was due or a lien at the time of the commencement of such action and the filing of the notice of pendency thereof, but such a tax becomes due or a lien subsequent to the time of the commencement of such action and the filing of the notice of pendency thereof, such real property shall be sold and conveyed in such action free from any such lien, and any such lien may become a lien on any surplus moneys which may result from such sale, to be determined in the proceedings for the distribution of such surplus moneys. Where title to real property passes from an individual, or from a corporation owing no franchise tax, to another corporation which is in default for such tax, the lien herein provided shall not be enforceable except at to any equity after the prior mortgage encumbrance.
F. 
The Board of Trustees may, upon application made to it and the payment of a fee of $25, release any real property from the lien of any tax or taxes due, or to become due, imposed by that article, provided that payment be made to the Clerk-Treasurer of the Village of Hamburg of such a sum as the Clerk-Treasurer shall deem adequate consideration for such release, or deposit be made of such security or such bond be filed as he or she shall deem proper to secure payment of any tax or taxes the lien of which is being released. The application for such release shall contain an accurate description of the property to be released, together with such other information as the Clerk-Treasurer of the Village of Hamburg may require. Such release may be recorded in any office in which conveyances of real estate are entitled to be recorded.
G. 
Where an application for consent to dissolution, as provided by Section 1004 of the Business Corporation Law, is filed with the Clerk-Treasurer of the Village of Hamburg prior to the commencement of any tax year, or period, by a corporation subject to tax under this article, such corporation shall not be liable for any tax imposed by that article for such following year or period, provided that the certificate of dissolution for such corporation is duly filed in the office of the Secretary of State within 60 days after the commencement of such tax year or period and such corporation does not conduct business in the Village of Hamburg in such tax year or period.
H. 
Notwithstanding any other provision of this article, the Clerk-Treasurer of the Village of Hamburg may grant a reasonable extension of time for payment of any tax imposed by this article under such conditions as he or she deems just and proper.
[Added 11-1-1976 by L.L. No. 22-76]
A. 
Every taxpayer subject to the tax imposed by this article shall make a declaration of its estimated tax for the current taxable year containing such information as the Clerk-Treasurer of the Village of Hamburg may prescribe.
B. 
The term "estimated tax" means the amount which the taxpayer estimates to be the taxes imposed by this article for the current taxable year less the sum of any credits which it estimates to be allowable against such taxes.
C. 
A declaration of estimated tax shall be filed in the office of the Clerk-Treasurer of the Village of Hamburg on or before July 15 of taxable years beginning on and after January 1, 1977.
D. 
A taxpayer may amend a declaration of estimated tax in the manner provided by the Clerk-Treasurer of the Village of Hamburg or by the Tax Commission of the State of New York.
E. 
If the taxable period for which a tax is imposed by this article is other than 12 months, every taxpayer required to make a declaration of estimated tax for such taxable period shall make such declaration in the manner provided by the rules of the Tax Commission of the State of New York.
[Added 11-1-1976 by L.L. No. 22-76]
A. 
For taxable years beginning on or after January 1, 1977, every taxpayer subject to tax under this article shall pay in each such year an amount equal to 25% of the tax imposed hereby for the preceding taxable year. Such amount shall be paid with the return or report required to be filed with respect to such tax for such preceding taxable year or with an application for extension of the time for filing such return or report.
B. 
Notwithstanding any other provision of this article to the contrary, any taxpayer required under this section to pay an amount equal to 25% of its tax for the taxable year ending on December 31, 1976, shall compute such amount as if its tax for such taxable year were determined on the basis of its gross income or gross operating income, as the case may be, for either the preceding 12 months ending on such date or for the period from the date of its incorporation under the laws of this state or the date it commenced carrying on or doing business in the Village of Hamburg to and including December 31, 1976, if such date of incorporation or commencement of the carrying on or doing business was within the twelve months immediately preceding December 31, 1976.
C. 
The estimated tax for each taxable year with respect to which a declaration of estimated tax is required to be filed under this article shall first be reduced by any amount paid under Subsection A, and the balance shall be paid in three equal installments as follows: July 15, October 15 and January 15.
D. 
If any amendment of a declaration is filed, the remaining installments, if any, shall be ratably increased or decreased (as the case may be) to reflect any increase or decrease in the estimated tax by reason of such amendment, and if any amendment is made with or after the last installment of estimated tax is due for the taxable year under Subsection B, any increase in the estimated tax by reason thereof shall be paid at the time of making such amendment.
E. 
Any amount paid pursuant to Subsection A shall be applied as a first installment against the estimated tax of the taxpayer for the taxable year shown on the declaration required to be filed pursuant to § 212-6, or if no declaration is filed pursuant to such section, any such amount shall be considered a payment on account of the tax shown on the return or report required to be filed by the taxpayer for such taxable year.
F. 
Notwithstanding the provisions of Section 1088 of this Tax Law or Section 16 of the State Finance Law, if an amount paid pursuant to Subsection A of this section exceeds the tax shown on the return or report required to be filed by the taxpayer for the taxable year during which amount so paid pursuant to Subsection A exceeds such tax, at the rate set by the Tax Commission pursuant to subdivision (e) of Section 1090 of the Tax Law, or if no rate is set, at the rate of 6% per annum, from the date of payment of the amount so paid pursuant to such Subsection A or the 15th day of March of the taxable year, whichever is later, to the 15th day of March following the close of the taxable year; provided, however, that no interest shall be allowed or paid under this subdivision if the amount thereof is less than $1.
G. 
This section shall apply to a taxable period of less than 12 months in accordance with regulations of the Tax Commission of the State of New York.
H. 
The Clerk-Treasurer may grant a reasonable extension of time, not to exceed six months, for the payment of any installment of estimated tax required pursuant to this section, on such terms and conditions as it may require, including the furnishing of a bond or other security by the taxpayer in an amount not exceeding twice the amount for which any extension of time for payment is granted; provided, however, that interest at the rate set by the Tax Commission pursuant to subdivision (e) of Section 1096 or, if no rate is set, at the rate of 6% per annum for the period of the extension shall be charged and collected on the amount for which an extension of time for payment is granted under this subdivision.
I. 
A taxpayer may elect to pay any installment of estimated tax prior to the date prescribed in this section for the payment thereof.
[Added 11-1-1976 by L.L. No. 22-1976]
The provisions of Article 27 of the Tax Law which pertain to declarations and payments of estimated taxes shall be applicable to declarations and payments of estimated tax required under this article as if this article had been specifically incorporated in and referred to in such provisions.
A. 
Estimation of tax; notice. In case any return filed pursuant to this article shall be insufficient or unsatisfactory to the Village Treasurer, and if a corrected or sufficient return is not filed within 21 days after the same is required by notice from the Treasurer, or if no return is made for any period, the Village 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. The Village Treasurer shall give notice of such determination to the person liable for such tax.
B. 
Appeal of determination; decision; further appeals. 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 determinations, apply to the Village Treasurer for a hearing, or unless the Village Treasurer of his or her own motion shall reduce the same. After such hearing, the Village Treasurer shall give notice of his or her decision to the person liable for the tax. Such decision may be reviewed by a proceeding under Article 78 of the Civil Practice Act 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 be first deposited with the Village Treasurer 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 be dismissed or the tax confirmed, the applicant will pay all cost 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.
C. 
Time limitation. 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 person for who it is intended in a postpaid envelope addressed to such person at the address given by such person 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 name 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.
[Amended 4-19-1999 by L.L. No. 2-1999]
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 as set forth in Chapter 1, General Provisions, Article II, § 1-14, Penalties assessed against unpaid taxes, sewer rents and invoices, excepting the first month, after such return was required to be filed or such tax became due, but the Village Treasurer, 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 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 the Treasurer's own motion, shall have reduced the tax or penalty or it shall have been established in a proceeding under Article 78 of the Civil Practice Act 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 may receive additional evidence with respect thereto. After making the determination, the Village Treasurer shall give notice thereof to the person interested, and he or she shall be entitled to an order to review such determination under said Article 78, 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 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, 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 Section 186-A of the Tax Law is made a lien.
In the administration of this article, the Village Treasurer shall have power to make such reasonable rules and regulations, not inconsistent with law, as may be necessary for the exercise of the 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 the 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. 
Except in accordance with proper judicial order or an otherwise provided by law, it shall be unlawful for the Village Treasurer or any agent, clerk or employee of the Village of Hamburg 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.
B. 
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 Hamburg in an action or proceeding under the provisions of this article, or on behalf of the State Tax Commission in an action or proceeding and 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.
C. 
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 that person, 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 may assist in the collection of such delinquent taxes; or the inspection of by the Village Attorney or other legal representatives of the Village of Hamburg of the return of any person who shall bring action to set aside or review the tax based thereon, or against whom any action has been instituted in accordance with the provisions of this article.
D. 
Any offense against the foregoing secrecy provisions shall be punishable by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, and if the offender be an officer, agent, clerk or employee of the Village of Hamburg, the offender shall be dismissed from office and shall be incapable of holding any office or employment in the Village of Hamburg for a period of five years hereafter.
E. 
Notwithstanding any provisions of this article, the Village Treasurer 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 Hamburg, and provided that such information is to be used for tax purposes only, and the Village Treasurer shall, upon request, furnish the State Tax Commissioner with any information contained in such returns.
All taxes and penalties received by the Village Treasurer under 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.
This article shall take effect immediately.