[Adopted 7-28-1976 by L.L. No. 3-1976 (Ch. 37 of the 1977
Code)]
Pursuant to the authority granted by § 6-640 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 October 1976, is hereby imposed
upon every utility doing business in the Village of Hillburn, New
York, which is subject to the supervision of the State Department
of Public Service and which is subject to the tax imposed by § 186-a
of the Tax Law of the State of New York, 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 October 1976, is hereby imposed upon every
other utility doing business in the Village of Hillburn which has
a gross operating income in excess of $500, as defined in § 186-a
of the Tax Law, which taxes shall have application only within the
territorial limits of the Village of Hillburn, New York, 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 Hillburn, notwithstanding that some act be necessarily
performed with respect to such transaction within such limits.
A. As used in this article, the word "utility" and the word "person"
shall mean and be defined as they mean and are defined in Subdivision
2 of § 186-a of the Tax Law of the State of New York.
B. Definitions. As used in this article, the following terms shall have
the meanings indicated:
GROSS INCOME
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 gross income), made or service rendered for ultimate consumption
or use by the purchaser in the Village of Hillburn, New York, 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 cost of the period for which a return is
made); also receipts from interest, dividends and royalties derived
from sources within the Village of Hillburn, New York, 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 Hillburn, New York, 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 Hillburn, New York, and in the case of a utility engaged
in selling telegraphy or telegraph service, only receipts from transactions
wholly consummated within the Village of Hillburn, New York; and the
said term "gross income" shall also include all items in such definition
as contained in § 6-640 of the Village Law whether or not specifically hereinabove set forth.
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, refrigerator, telephone or telegraph
service in the Village of Hillburn, New York, 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.
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Treasurer of the Village
of Hillburn may require, and such records shall be preserved for a
period of three years, except that the Treasurer of the Village of
Hillburn may consent to their destruction within that period or may
require that they be kept longer.
A. Every utility subject to tax hereunder shall file annually, on or
before the 25th day of March, 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 September 25, December 25, March 25 and
June 25, 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.
B. Every return shall state the gross income or gross operating income
for the period covered thereby.
C. Returns shall be filed with the Treasurer of the Village of Hillburn
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.
D. The Treasurer of the Village of Hillburn, 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,
and he may require any utility doing business in the Village of Hillburn
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.
E. Every return shall have annexed thereto an affidavit of a principal
officer of the utility making the same, or of the owner or of a copartner
thereof, 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 Treasurer of the Village of Hillburn
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.
A. In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Treasurer of the Village of Hillburn 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 Treasurer of the Village of Hillburn 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 Treasurer of the Village of Hillburn for a hearing, or unless
the Treasurer on his motion shall reduce the same. After such hearing,
the Treasurer 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 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 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.
B. 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 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, except
the first month, after such return was required to be filed or such
tax became due; but the Treasurer of the Village of Hillburn, 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
Treasurer of the Village of Hillburn or the court shall determine
that such tax or penalty or any portion thereof was erroneously or
illegally collected, the Treasurer of the Village of Hillburn 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 Treasurer
of the Village. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Treasurer of the Village,
as hereinbefore provided, unless the said 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 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 his 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
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, 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 his
powers and the performance of his duties; 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 or any agent,
clerk or employee of the Village of Hillburn 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 Hillburn in an 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.
B. 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 may assist in the collection
of such delinquent taxes; nor the inspection by the Village Attorney
or other legal representative of the Village of Hillburn 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.
C. 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 Hillburn, and provided
that such information is to be used for tax purposes only, and the
Village Treasurer shall, upon request, furnish the State Tax Commission
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 funds of the Village.
This article shall take effect on the first day of October 1976.