[Adopted 10-8-1968 by L.L. No. 1-1968]
[Amended 11-18-1998 by L.L. No. 3-1998]
Pursuant to the authority granted by ยงย 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 November 1968, is
hereby imposed upon every utility doing business in the Village of
LeRoy, New York, which is subject to the supervision of the State
Department of Public Service, which has a gross income for 12 months
ending May 31 in excess of $500, except motor carriers of 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 from
and after the first day of November 1968, is hereby imposed upon every
other utility doing business in the Village of LeRoy, New York, 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 LeRoy 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 LeRoy notwithstanding
that some act be necessarily performed with respect to such transaction
within such limits.
[1]
Editor's Note: Article 3-B of the Public Service
Law was repealed by L. 1970, c. 267, ยงย 5, effective 3-1-1971.
See now ยงย 240 et seq. 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 the 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 LeRoy, New York, 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 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 Village of LeRoy, New
York, 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 Village of LeRoy, New York,
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 LeRoy, New York, and in the case
of a "utility" engaged in selling telegraphy or telegraph service,
only receipts from transactions wholly consummated within the Village
of LeRoy, New York.
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, telephone or telegraphy,
or in or by reason of the furnishing for such consumption or use of
gas, electric, steam, water, refrigeration, telephone or telegraph
service in the Village of LeRoy, New York, including cash, credits
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 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 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, telephone or telegraphy delivered through mains,
pipes or wires, or furnishes gas, electricity, steam, water, refrigeration,
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 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 Village
Treasurer may require or as the Village Board may require, and such
records shall be preserved for a period of three years, except that
the Village Treasurer or the Village Board 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 February, a return for
the 12 calendar months ending the 31st day of December or, on or before
the 25th day of March, a return for the 12 calendar months preceding
such return date of 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 1, December 1, March 1 and June
1, 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 Village
Treasurer 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 Village Treasurer, 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 LeRoy,
New York 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 Village of LeRoy 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.ย
In case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
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 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. 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 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 his decision to the person
liable for the tax.
B.ย
Such decision may be reviewed by a proceeding under
Article 78 of the Civil Practice 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 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 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.
C.ย
Except in the case of 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 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 such
tax for each month's delay or fraction thereof, excepting the first
mouth, after such return was required to be filed or such tax became
due, but the Village Treasurer, for cause shown, 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.
A.ย
If, within one year from the payment of any tax or
penalty, the payer thereof 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.
B.ย
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 if 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 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 he shall be entitled to an order to review such determination
under said Article 78 of the Civil Practice Law and Rules of the State
of New York, subject to the provisions hereinbefore contained relating
to the granting of such 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 Village Attorney shall, upon
the request of the Village Board, bring an action to enforce payment
of the same. The proceeds of any judgment obtained in any such action
shall be paid to the Village Treasurer. 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 ยงย 186 of the Tax Law is made a lien.
In the administration of this article, the Village
Treasurer 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.ย
Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Village
Treasurer or any agent, clerk or employee of the Village of LeRoy
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 officers 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 LeRoy 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 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 Village
Treasurer, may assist in the collection of such delinquent taxes,
or the inspection by the Village Attorney or other legal representative
of the Village of LeRoy of the return of any person who shall bring
action to set aside to review the tax based thereof, or against whom
an action has been instituted in accordance with the provisions of
this article.
B.ย
Any offense against the foregoing secrecy provisions
shall be punishable by a fine not exceeding $1,000 or by imprisonment
not exceeding one year, or both, and if the offender be an officer,
clerk or employee of the Village of LeRoy, he shall be dismissed from
office and shall be incapable of holding any office or employment
for the Village of LeRoy for a period of five years thereafter.
C.ย
Notwithstanding any provisions of this article, the
Village Treasurer 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 LeRoy, 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 of LeRoy and shall be credited to and deposited in the general
fund of the Village.