[Adopted 5-1-1950 by L.L. No. 3-1950]
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 is hereby imposed upon every utility doing business in
the City of Newburgh 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,[1] and a tax equal to 1% of its gross operating income is
hereby imposed for the same period upon every other utility doing
business for the City of Newburgh 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
Newburgh 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 consummated
outside of the territorial limits of the City of Newburgh, notwithstanding
that some act is necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: Art. 3-B of the Public Service Law was repealed
by L. 1970, c. 267. See now Art. 7 of the Transportation Law.
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 services rendered for ultimate consumption
or use by the purchaser in the City of Newburgh, 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 reduction 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; 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 Newburgh
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 Newburgh 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 or telegraphy
or in or by reason of the furnishing of such consumption or use of
gas, electric, steam, water, refrigerator, telephone or telegraph
service in the City of Newburgh, including cash, credit 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.
Persons, corporations, companies, associations, joint-stock
associations, copartnerships, estates, assignees of rents, any persons
acting in a fiduciary capacity or any other entities 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, municipality and public
districts.
Includes every person subject to the supervision of the State
Department of Public Service, except persons engaged in the business
of operating on the public highways of this state one or more omnibuses
having a seating capacity of more than seven persons and 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 of whether such activities are
the main business of such person or are only incidental thereto or
whether use is made of the public streets.
[Amended 6-13-1988 by L.L. No. 4-1988]
Every utility subject to tax under this article shall keep such
records of its business and in such form as the Comptroller may require,
and such records shall be preserved for a period of three years, except
that the Comptroller may consent to their destruction within that
period or may require that they be kept longer.
[Amended 6-13-1988 by L.L. No. 4-1988]
Every utility subject to tax hereunder shall file on or before
March 15 of each year a return for the year ended on the preceding
December 31, 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 Comptroller of the City of Newburgh
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the Comptroller of the City
of Newburgh may require to be included therein, limited, however,
to taxable income under this article. The Comptroller of the City
of Newburgh, in order to secure payment of the tax imposed by this
article, may require at any time a further or supplemental return,
which shall contain any data that may be specified by the Comptroller
of the City of Newburgh pertaining to taxable income 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 the 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 Comptroller 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.
In case any return filed pursuant to this article shall be insufficient
or unsatisfactory to the Comptroller and if a corrected or sufficient
return is not filed within 20 days after the same is required by notice
from the Comptroller or if no return is made for any period, the Comptroller
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. The Comptroller 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 Comptroller for a hearing or unless
the Comptroller, of his own motion, shall reduce the same. After such
hearing, the Comptroller shall give notice of his decision to the
person liable for the tax. The decision of the Comptroller may be
reviewed by certiorari if application therefor is made within 30 days
after the giving of notice of such decision. An order of certiorari
shall not be granted unless the amount of any tax sought to be reviewed,
with penalties thereon, if any, shall be first deposited with the
Comptroller 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 an order is dismissed or the tax confirmed,
the applicant for the order will pay all costs and charges which may
accrue in the prosecution of the certiorari proceeding, or, at the
option of the applicant, such undertaking may be in a sum sufficient
to cover the tax penalties, cost and charges aforesaid, in which event
the applicant shall not be required to pay such tax and penalties
as a condition precedent to the granting of such order.
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 corrective 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
the 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 Comptroller, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
If, within one year from the payment of any tax or penalty,
the payer thereof shall make application for a refund thereof and
the Comptroller of the City shall determine that such tax or penalty
or any portion thereof was erroneously or illegally collected, the
Comptroller 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 Comptroller. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Comptroller as hereinbefore
provided unless the Comptroller, 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 certiorari proceeding that such determination
was erroneous or illegal. All refunds shall be made out of moneys
collected under this article, deposited to the credit of the Comptroller,
with the approval of the Comptroller. 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 Comptroller
may receive additional evidence with respect thereto. After making
his determination, the Comptroller shall give notice thereof to the
person interested, and he shall be entitled to a certiorari order
to review such determination 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 a person shall fail to pay any tax or penalty imposed
by this article, the Corporation Counsel shall, upon the request of
the Comptroller, bring an action to enforce payment of the same. The
proceeds of any judgment obtained in any such action shall be paid
to the Comptroller. 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 Comptroller 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 article,
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 as otherwise
provided by law, it shall be unlawful for the Comptroller or any agent,
Clerk or employee of the City of Newburgh 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 City of Newburgh 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 Comptroller,
may assist in the collection of such delinquent taxes, or the inspection
by the Corporation Counsel or other legal representatives of the City
of Newburgh 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 is an officer, agent, Clerk
or employee of the City of Newburgh, he shall be dismissed from office
and shall be incapable of holding any office or employment in the
City of Newburgh for a period of five years thereafter. Notwithstanding
any provisions of this article, the Comptroller 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
that such other City grants similar privileges to the City of Newburgh
and provided that such information is to be used for tax purposes
only, and the City Comptroller shall, upon request, furnish the State
Tax Commission with any information contained in such returns.
All taxes and penalties received by the Comptroller of the City
of Newburgh for taxes heretofore or hereafter imposed under this article
shall be credited and deposited by him in the general fund of the
City of Newburgh.
[Added 12-27-1955 by L.L. No. 3-1955]
Omnibus corporations subject to the supervision of the State
Department of Public Service under Article 3-a of the Public Service
Law[1] are hereby exempted from the provisions hereof and from
the payment of the tax provided herein.
[1]
Editor's Note: Art. 3-a of the Public Service Law was repealed
by L, 1970, c. 267. See now Art. 6 of the Transportation Law.
