[Adopted 2-15-1973 by L.L. No. 1-1973]
[Amended 4-30-1996 by L.L. No. 1-1996]
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 March 1973 is hereby
imposed upon every utility doing business in the Village of Fort Plain
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 March 1973 is hereby imposed upon every
other utility doing business in the Village of Fort Plain 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 of Fort Plain 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 Fort
Plain, New York, notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
[Amended 4-30-1996 by L.L. No. 1-1996]
The words used in this Article shall have the
meanings given them in § 186-a, Subdivision 2, of the Tax
Law and § 5-530 of the Village Law.
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 Fort Plain may require, and such records shall be
preserved for a period of three years, except that the Treasurer of
said village 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 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. Every return shall state the gross income or gross
operating income for the period covered thereby. Returns shall be
filed with the Treasurer of the Village of Fort Plain 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.
The Treasurer of said village, 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 Fort Plain
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. 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 Treasurer of the Village
of Fort Plain 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 Fort Plain 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 said village 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. 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 said village for a hearing
or unless the Treasurer of said village of his own motion shall reduce
the same. After such hearing, the Treasurer of said village 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 Treasurer of the Village
of Fort Plain 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
persons 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 a 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 Treasurer of the Village
of Fort Plain, 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 Fort Plain or the court
shall determine that such tax or penalty or any portion thereof was
erroneously or illegally collected, the Treasurer of said village
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 said village. However, no refund shall be made of a tax or penalty
paid pursuant to a determination of the Treasurer of said village
as hereinbefore provided unless the Treasurer of said village, 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 Treasurer of said village may receive additional evidence
with respect thereto. After making his determination, the Treasurer
of said village shall give notice thereof to the person interested,
and he shall be entitled to an order to review such determination
under said Article 78 of the Civil Practice Law and Rules subject
to the provision hereinbefore contained relating to the granting of
such an order.
Whenever any person shall fail to pay any tax
or penalty imposed by this Article, the Village Attorney shall, upon
the request of the Treasurer of the Village of Fort Plain, bring an
action to enforce payment of the same. The proceeds of any judgment
obtained in any such action shall be paid to the Treasurer of said
village. 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.
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.
In the administration of this Article, the Treasurer
of the Village of Fort Plain 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 proper judicial order or
as otherwise provided by law, it shall be unlawful for the Treasurer
of the Village of Fort Plain or any agent, clerk or employee of the
Village of Fort Plain 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 Fort
Plain 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 Treasurer of said
village, may assist in the collection of such delinquent taxes; or
the inspection by the Village Attorney or other legal representatives
of the Village of Fort Plain 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. Any offense against the foregoing secrecy provisions
of this Article shall be punishable by a fine not exceeding $500 or
by imprisonment not exceeding three months, or both, and if the offender
is an officer, agent, clerk or employee of the Village of Fort Plain,
he shall be dismissed from office and shall be ineligible to hold
any office or employment in the Village of Fort Plain for a period
of two years thereafter.
D. Notwithstanding any provisions of this Article, the
Treasurer of said village 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
Fort Plain, and provided that such information is to be used for tax
purposes only, and the Treasurer of said village shall, upon request,
furnish the State Tax Commission with any information contained in
such returns.
All taxes and penalties received by the Treasurer
of the Village of Fort Plain 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.