[Adopted 6-23-1954 by L.L. No. 1-1954 (Ch. 41, Art. I, of
the 1972 Code)]
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 June 1954 is hereby imposed
upon every utility doing business in the Village of Malverne which
is subject to the supervision of the State Department of Public Service,
which has a gross income for the 12 months ending the last day of
February in each year, commencing with the 12 months ending February
28, 1955, in excess of $500, except motor carriers or brokers subject
to such supervision under § 240 of the Transportation Law,
and a tax equal to 1% of its gross operating income from and after
the first day of June 1954 is hereby imposed upon every other utility
doing business in the Village of Malverne which has a gross operating
income for the 12 months ending the last day of February in each year,
commencing with the 12 months ending February 28, 1955, in excess
of $500, which taxes shall have application only within the territorial
limits of the Village of Malverne, 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 Malverne,
notwithstanding that some act be necessarily performed with respect
to such transaction within such limits.
As used in this article, the following terms shall have the
meanings indicated:
Includes receipts received in or by reason of any sale made,
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), or service rendered for ultimate consumption
or use by the purchaser in the Village of Malverne, 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
material 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 Village of Malverne, 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 rental)
within the Village of Malverne, 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 Malverne,
and in the case of a utility engaged in selling telegraphy or telegraph
service, only receipts from transactions wholly consummated within
the Village of Malverne.
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 for such consumption or use of
gas, electric, steam, water, refrigerator, telephone or telegraph
service in the Village of Malverne, 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, assignee 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, 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 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, 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 March, a return for the 12 calendar months
preceding such return date or any portion thereof for which the tax
imposed hereby is 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 insure 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 Malverne 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 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.
A.
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 one year 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. 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 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 is 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 such granting of such order.[1]
B.
Except in the case of a willfully false or fraudulent return, with
intent to evade the tax, no bent 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 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 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, except
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 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 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 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, 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 may be added as a separate item to bills
rendered by the utility to customers or others.
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 Treasurer, 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 § 186-a 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.
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 Malverne 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 Malverne 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
Village Treasurer, may assist in the collection of such delinquent
taxes; or the inspection by the Village Attorney or other legal representatives
of the Village of Malverne of the return of any person who shall bring
action to set aside or review the tax based thereon, or against whom
any 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 one
year, or both, and if the offender is an officer, agent, clerk or
employee of the Village of Malverne, he shall be dismissed from office,
and shall be incapable of holding any office or employment in the
Village of Malverne for a period of five years thereafter.
C.
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 Malverne, 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 fund of the Village.