[Adopted 12-7-1970 by L.L. No. 1-1970]
A tax equal to 1% of its gross income from and after January 1, 1971,
is hereby imposed upon every utility, as hereinafter defined, doing business
in the Village of Asharoken which is subject to the supervision of the New
York State Department of Public Services which has a gross income for the
12 months ending December 31 of the current calendar year in excess of $500,
which tax shall have application only within the territorial limits of the
Village of Asharoken and shall be in addition to any and all other taxes.
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 Village of Asharoken, including cash, credits and property of any kind
or nature (whether or not such sale is made or such service rendered for profit)
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 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, profits from any transaction (except
sales for resale and rentals) within the Village of Asharoken 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 Asharoken.
Persons, corporations, companies, associations, joint-stock associations,
copartnerships 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.
Includes every person who manufactures, conveys, transports, sells
or distributes gas (natural or manufactured or a mixture of both) or electricity
for light, heat or power or owns, leases or operates gas plants or electric
plants; owns, leases or operates any telephone line within the Village of
Asharoken; or sells gas, electricity or telephony delivered through mains,
pipes or wires or furnishes gas, electric or telephone 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 within the Village.
Every utility subject to tax under this Article shall keep such records
of its business and in such form as the Village Treasurer may require and
such records shall be preserved for a period of three years, except that the
Village Treasurer 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 April a return for the 12 calendar months preceding such return
date or any portion thereof for which the tax imposed hereby is effective,
each of which returns shall state the gross income for the period covered
by each such return. Returns shall be filed with the Village Treasurer on
a form to be furnished by him for such purpose and shall contain such other
data, information or matter as the Village Treasurer may require to be included
therein. The Village Treasurer may require any utility to file such a return,
which shall contain any data specified by him, whether or not the utility
is subject to tax under this Article. Every return shall have annexed thereto
a certification by the head of the utility making the same or of the owner
or of a copartner thereof or a principal officer 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 the return as required by this Article, each utility
shall pay to the Village Treasurer 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 Village Treasurer and if a correct or sufficient
return is not filed within 20 days after the same is required by notice from
the Village Treasurer or if no return is made for any period, the Village
Treasurer 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 Village Treasurer 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 one year of given notice of such determination, apply
to the Village Treasurer for a hearing or unless the Village Treasurer of
his own motion shall reduce the same. After such hearing the Village Treasurer
shall give notice of such decision to the person liable for the tax. The decision
of the Village Treasurer may be reviewed in the manner provided in the Civil
Practice Law and Rules if application therefor is made within 30 days after
the giving of notice of such decision. The proceeding may not be commenced
unless the amount of any tax sought to be reviewed, with 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 the proceeding be dismissed or the
tax confirmed, the petitioner will pay all costs and charges which may accrue
in the prosecution of the proceeding or at the option of the petitioner such
undertaking may be in a sum sufficient to cover the tax, penalties, costs
and charges aforesaid, in which event the petitioner shall not be required
to pay such tax and penalties as a condition precedent to the commencement
of the proceeding.
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 last 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, excepting the first month after
such return was required to be filed or such tax became due; but the Village
Treasurer, for cause shown, may extend the time for filing of any return and,
if satisfied that the delay was excusable, may remit all or any portion of
such penalty.
If, within one year from the giving of notice of any determination or
assessment of any tax or penalty, the person liable for the tax shall make
application for a refund thereof and the Village Treasurer or the court shall
determine that such tax or penalty or any portion thereof was erroneously
or illegally collected, the Village Treasurer 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 Village Treasurer. However, no refund shall be made of a
tax or penalty paid pursuant to a determination of the Village Treasurer as
hereinbefore provided unless the Village 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 in the manner provided in the
Civil Practice Law and Rules that such determination was erroneous or illegal.
All refunds shall be made out of moneys collected under this Article. An application
for a refund 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 such person shall
be entitled to commence a proceeding to review such determination subject
to the provisions hereinbefore contained relating to the commencement of such
a proceeding.
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 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 available for the recovery of any tax
or penalty imposed by this article as are available for the recovery of taxes
and penalties imposed by Article 7 of the New York Tax Law.
In the administration of this article, the Village Treasurer shall have
power to make such reasonable rules and regulations 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.
The Village Treasurer may exchange with the chief fiscal officer of
any City, Town or other Village in the State of New York information contained
in returns filed under this article, provided that such City, Town or other
Village grants similar privileges to the Village of Asharoken, 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.
