[Adopted 7-1-1937 by L.L. No. 1-1937]
[Amended 7-6-1938 by L.L. No. 7-1938; 7-10-1939 by L.L. No. 4-1939; 7-1-1940 by L.L. No. 1-1940; 6-23-1941 by L.L. No. 2-1941; 8-3-1942 by L.L. No. 1-1942; 7-12-1944 by L.L. No. 1-1944; 8-13-1945 by L.L. No. 1-1945; 6-17-1946 by L.L. No. 1-1946; 7-28-1947 by L.L. No. 4-1947; 7-11-1949 by L.L. No. 2-1949; 6-26-1950 by L.L. No. 1-1950]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, a tax equal to 1%
of its gross income from and after July 1, 1937, is hereby imposed
upon every utility doing business in the City of Schenectady 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 provision
under Article 3-B of the Public Service Law, and a tax equal to 1%
of its gross operating income is hereby imposed from and after July
1, 1937, upon every other utility doing business in the City of Schenectady
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 City of Schenectady and shall be in
addition to any and all other taxes and fees imposed by any other
provision of law for the same period. Such taxes shall not be imposed
on any transaction originating or consummating outside the territorial
limits of the City of Schenectady, notwithstanding that some act be
necessarily performed with respect to such transaction within such
limits.
[Amended 7-6-1938 by L.L. No. 7-1938; 6-23-1941 by L.L. No. 2-1941; 8-3-1942 by L.L. No. 1-1942]
As used in this article, the following terms
shall have the meanings indicated:
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 City of Schenectady, 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 City of Schenectady 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 City of Schenectady 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, telephony, telegraphy
or in or by reason of the furnishing of such consumption or use of
gas, electricity, steam, water, refrigerator, telephone or telegraph
service in the City of Schenectady, including cash, credits and property
of any kind or nature, without any deductions 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, assignees of rent, 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.
Includes every person subject to the supervision of either
division 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, electricity, 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 persons or are only incidental
thereto, or of whether use is made of the public streets.
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Director
of Finance may require, and such records shall be preserved for a
period of three years, except that the Director of Finance may consent
to their destruction within that period or may require that they be
kept longer.
[Amended 7-6-1938 by L.L. No. 7-1938; 7-10-1939 by L.L. No. 4-1939; 7-1-1940 by L.L. No. 1-1940; 6-23-1941 by L.L. No. 2-1941; 8-3-1942 by L.L. No. 1-1942; 7-12-1944 by L.L. No. 1-1944; 8-13-1945 by L.L. No. 1-1945; 6-17-1946 by L.L. No. 1-1946; 7-28-1947 by L.L. No. 1-1947; 7-11-1949 by L.L. No. 2-1949; 6-26-1950 by L.L. No. 1-1950]
Every utility subject to tax hereunder shall
file, on or before September 25, December 25, March 25 and June 25,
a return for the three calendar months preceding each such return
date, including any period for which the tax imposed hereby or by
any amendment hereof is effective, each of which returns shall state
the gross income or gross operating income for the period covered
by each such return. Returns shall be filed with the Director of Finance
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the Director of Finance
may require to be included therein. Notwithstanding the foregoing
provisions of this section, any utility whose average gross income
or average gross operating income for the aforesaid three-month period
is less than $1,500 may file a return annually on June 25 for the
12 preceding calendar months, and the Director of Finance may require
any utility doing business in the City of Schenectady to file an annual
return which shall contain any data specified by the Director of Finance,
regardless of whether the utility is subject to a tax under this section.
The Director of Finance, 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 the Director of Finance.
Every return shall have annexed thereto an affidavit of the head of
the utility making the same, or of the owner or of the copartner thereof,
or of a principal official of the corporation, if such business be
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 Director of Finance the
tax imposed by this section 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.
[Amended 7-10-1939 by L.L. No. 4-1939]
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Director of Finance
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the Director of Finance
or if no return is made for any period, the Director of Finance 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 indexes or otherwise. The Director of Finance 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 Director of Finance
for a hearing or unless the Director of Finance, of his own motion,
shall reduce the same. After such hearing, the Director of Finance
shall give notice of his decision to the person liable for the tax.
The decision of the Director of Finance may be reviewed by a proceeding
under Article 78 of the Civil Practice Act of the State of New York,[1] if application therefor is made within 30 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 Director of Finance 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.
[1]
Editor's Note: See Article 78 of The Civil
Procedure Law and Rules.
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 section 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 section 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 Director of Finance, if
satisfied that the delay was excusable, may remit all or any portion
of such penalty.
[Amended 7-10-1939 by L.L. No. 4-1939]
If, within one year from the payment of any
tax or penalties, the payer thereof shall make application for a refund
thereof and the Director of Finance or the court shall determine that
such tax or penalty, or any portion thereof, was erroneously or illegally
collected, the Director of Finance 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 Director of Finance. However, no refund shall
be made of a tax or penalty paid pursuant to a determination of the
Director of Finance as hereinbefore provided, unless the Director
of Finance, 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
Act of the State of New York (Article 78 of the Civil Practice Law
and Rules) that such determination was erroneous or illegal. All refunds
shall be made out of moneys collected under this section. 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 Director
of Finance may receive additional evidence with respect thereto. After
making this determination, the Director of Finance 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 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 Corporation Counsel shall,
upon the request of the Director of Finance, bring an action to enforce
payment of the same. The proceeds of any judgment obtained in any
such action shall be paid to the Director of Finance. 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-b of the Tax Law is made
a lien.
In the administration of this section, the Director
of Finance 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, 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 section and to subpoena and require the attendance of witnesses
and the production of books, papers and documents.
A.
Except in accordance with the proper judicial order
or as otherwise provided by law, it shall be unlawful for the Director
of Finance or any agent, clerk or employee of the City of Schenectady
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 section. 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 City of Schenectady 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. 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 Director of Finance,
may assist in the collection of such delinquent taxes, or the inspection
by the Corporation Counsel or other legal representatives of the City
of Schenectady 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 $1,000 or by imprisonment
not exceeding six months, or both, and if the offender be an officer,
agent, clerk or employee of the City of Schenectady, he shall be dismissed
from office and shall be incapable of holding any office or employment
in the City of Schenectady for a period of five years thereafter.
C.
Notwithstanding any provision of this section, the
Director of Finance may exchange with the chief fiscal officer of
any other City in the State of New York information contained in returns
filed under this article, provided such other City grants similar
privileges to the City of Schenectady, and provided such information
is to be used for tax purposes only, and the Director of Finance shall,
upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Director
of Finance under this section shall be deposited by him in a separate
bank account or accounts and shall be used solely and exclusively
for the purpose of granting relief from the hardships and suffering
caused by unemployment within the City of Schenectady.
