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 1968, is hereby imposed
upon every utility doing business in the Village 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, and a tax equal to 1% of its gross operating income from
and after the first day of June 1968, is hereby imposed upon every
other utility doing business in the Village 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
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, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
As used in this article, the following terms shall have the
meanings indicated:
GROSS INCOME
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 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 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 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, and in the case of a utility engaged in selling telegraphy
or telegraph service, only receipts from transactions wholly consummated
within the Village.
GROSS OPERATING INCOME
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 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.
PERSON
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, municipalities,
political and civil subdivisions of the state or municipality and
public districts.
UTILITY
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, steam,
water, refrigeration, 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 or 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.
VILLAGE
The Incorporated Village of Stewart Manor.
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.
Every utility subject to tax hereunder shall file annually,
on or before the 25th day of June, a return for the 12 calendar months
preceding such return date or any portion thereof for which the tax
imposed hereby is effective; provided, however, that in lieu of the
annual return required by the foregoing provisions, any utility may
file quarterly, on or before the 25th days of September, December,
March and June of each year, a return for the three calendar months
preceding each such return date, and in the case of the first such
return, for all preceding calendar months during which the tax imposed
hereby was 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 on a form to be furnished by her
for such purpose and shall contain such other data, information or
matter as she may require to be included therein. 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 her, and she may require any utility doing
business in the Village to file an annual return which shall contain
any data specified by her, regardless of whether the utility is subject
to the 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 of 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 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.
Any notice authorized or required under the provisions of this
article may be given by mailing the same to the person 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 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, 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
after a hearing as hereinbefore unless the Village Treasurer, or of
her 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 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 may
receive additional evidence with respect thereto. After making this
determination, the Village Treasurer 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 provisions
hereinbefore contained relating thereto.
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 § 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 her
powers and the performance of her 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 her official duty
under this article and to subpoena and require the attendance of witnesses
and the production of books, papers and documents.
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.
The remedy provided by this article for review of a decision
of the Village Treasurer shall be the exclusive remedy available to
any taxpayer to judicially determine the liability of such taxpayer
for taxes under this article.