[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, 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.
Editor's Note: Art. 3-B of the Public Service Law was repealed by L. 1970, c. 267.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:
- 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 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.
- 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 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.
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.
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 are hereby exempted from the provisions hereof and from the payment of the tax provided herein.
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.