[Adopted 11-17-1981 by L.L. No. 8-1981]
This article shall be known and may be cited as the "Utility Taxation
Law of the Village of New Hyde Park."
For purposes of this article and all amendments or additions hereto,
the following words and phrases shall have the meanings described herein,
as and whenever the same shall appear in this article:
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 New Hyde Park, 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 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 receipts from interest, dividends
and royalties, derived from sources within the Village of New Hyde Park 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, also
profits from any transaction except sales for resale and rentals) within the
Village of New Hyde Park whatsoever; provided, however, that notwithstanding
any other provision of law, 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 New Hyde Park and, in the case of a utility engaged in the selling of telegraphy
or telegraph service, only receipts from transactions wholly consummated within
the Village of New Hyde Park.
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 New Hyde Park, including any cash, credits and property of any kind and
nature, without deductions 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.
Includes 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 of New York, municipalities, political and civil
subdivisions of the state or municipality, public districts and corporations
and associations organized and operated exclusively for religious, charitable
or educational purposes, no part of the net earnings of which inures to the
benefit of any private shareholder or individual.
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 which operation commences or terminates outside
of the territorial limits of the Village, and excepting 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, 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.
Notwithstanding the provisions of any other law, ordinance, order or
resolution, and 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 1981, is hereby imposed upon every utility
doing business in the Village of New Hyde Park which is subject to the supervision
of the State Department of Public Service, which has a gross income, for the
12 months (one-year period) ending May 31, in excess of $500, except motor
carriers or brokers who may have been subject to such supervision under Article
3-B of the Public Service Law and who are now subject to the supervision of
the State Commissioner of Transportation under Article 7 of the Transportation
Law; and a tax equal to 1% of its gross operating income, from and after the
first day of June 1981, is hereby imposed upon every other utility doing business
in the Village of New Hyde Park which has a gross operating income, for the
12 months (one-year period) ending May 31, in excess of $500, which taxes
shall be in addition to any and all other taxes and fees imposed by any other
provision of law, ordinance, rule, order or resolution for the same period.
The tax imposed by this article law shall have application only within the
territorial limits of the Village of New Hyde Park, and no tax shall be imposed,
or be deemed to be imposed, upon any transaction originating or consummated
outside of the territorial limits of the Village of New Hyde Park, notwithstanding
that some act is necessarily performed with respect to such transaction within
such limits.
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, as chief
fiscal officer thereof, may require, and such records shall be preserved for
a period of three years, except that said Treasurer may consent to their destruction
within that period or may require that they be kept longer.
A.
Every utility subject to tax hereunder shall file annually,
on or before the 25th day of July, a return for the 12 calendar months ending
May 31 next 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 provision, any utility may file semiannually,
on or before January 25 and July 25, respectively, a return for the six calendar
months ending November 30 and May 31, respectively, next preceding each of
the said semiannual return dates, and in the case of the first return, all
prior months during which the tax imposed hereby was effective.
[Amended 3-2-1982 by L.L. No. 1-1982]
B.
Every return shall state the gross income or gross operating
income for the period covered thereby.
C.
Returns shall be filed with the Treasurer of the Village,
on forms 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.
D.
The Treasurer of the 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 the Treasurer, notwithstanding the provisions of the foregoing Subsection A hereof, may require any utility doing business in the Village of New Hyde Park 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.
E.
Every return shall have annexed thereto a sworn certification
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 or provided for 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.
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.
A.
In case any return filed pursuant to this article shall
be insufficient or unsatisfactory to the Treasurer of the Village, and if
a corrected or sufficient return is not filed with said Treasurer within 20
days after the same is required by notice from the Treasurer, or if no return
is made for any period, the Treasurer of the 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 indices or otherwise. The Treasurer
shall give written notice of such determination to the person liable for such
tax, and such determination shall finally and irrevocably fix such tax, unless
the person liable therefor shall, within 30 days after the giving of notice
of such determination, apply to the Treasurer of the Village for a hearing
to review same or unless the Treasurer, of his own motion, shall reduce the
same prior to the expiration of such period.
B.
In the event that a hearing is provided in accordance
with the provisions of this section, the Treasurer shall give written notice
of his decision to the person liable for the tax, within 30 days of the date
of such hearing. Any final determination of the amount of any tax payable
hereunder shall be reviewable for error, illegality or unconstitutionality
or any other reason whatsoever by a proceeding under Article 78 of the Civil
Practice Law and Rules, provided that such proceeding is commenced within
90 days after the giving of the notice of such final determination; provided,
further, however, that any such proceeding under said Article 78 not be instituted
unless the amount of any tax sought to be reviewed, with such interest and
penalties as may be provided for by this article or by ordinance or resolution
of the Board of Trustees, shall be first deposited and an undertaking filed,
in such amount and with such sureties as a Justice of the Supreme Court of
the State of New York shall approve, to the effect that if such proceeding
be dismissed or the tax confirmed the petitioner will pay all costs and charges
which may accrue in the prosecution of such proceeding.
If, within one year from the payment of tax or penalty, the payer thereof
shall make application for a refund thereof and the Treasurer of the Village
or a court of competent jurisdiction shall determine that such tax or penalty,
or any portion thereof, was erroneously, illegally or unconstitutionally collected,
the 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 Treasurer
of the Village. Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the refund thereof
duly made to the Village Treasurer and said Treasurer shall have made a determination
denying such refund, such determination shall be reviewable by a proceeding
under Article 78 of the Civil Practice Law and Rules; provided, however, that
such proceeding is commenced within 90 days after the giving of the notice
of such denial, that a final determination of tax due was not previously made
and that an undertaking is filed with the Treasurer in such amount and with
such sureties as a Justice of the Supreme Court of the State of New York shall
approve, to the effect that if such proceeding be dismissed or the tax confirmed
the petitioner will pay all costs and charges which may accrue in the prosecution
of such proceeding.
Except in the case of a willfully false or fraudulent return with intent
to evade the tax imposed hereunder, no assessment of additional tax shall
be made with respect to taxes so imposed after the expiration of more than
three years from the date of the filing of a return, provided that, where
no return has been filed as provided for 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, by registered or certified mail, return receipt requested,
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 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 as
provided for herein.
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, plus 1% of such tax for each month
or fraction thereof, except the first month, in which the same shall remain
unpaid in full from the date the return was required to be filed or such tax
was due; provided, however, that the Village Treasurer, for good 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 article.
A.
Whenever any person shall fail to pay any tax or penalty
imposed under or by the provisions of this article or shall fail to file or
make any return so required, the Village Attorney, or such other attorney
retained by the Board of Trustees for such purpose, upon the request of the
Village Treasurer, shall bring an action to enforce payment of the said tax
or penalty or the filing of the said return.
B.
The proceeds of any judgment obtained in any such action
shall be paid to the Treasurer of the Village and deposited in the general
fund of the Village. Each tax, and all penalties and interest thereon, shall
be a lien upon the property of the person liable to pay the same, in the same
manner and to the same extent as other Village taxes and assessments are made
liens.
In the administration of this article, the Village Treasurer shall have
the power to make such reasonable rules and regulations, not inconsistent
with law, as may be necessary for the exercise of his lawful powers and the
performance of his duties under the provisions of this article, to prescribe
the form of blanks, reports, returns and all other records relating to the
administration and enforcement of the tax provided for herein; to take testimony
and proofs, under oath, with reference to any matter within the scope of his
official duties under this article; and to subpoena and require attendance
of witnesses and the production of any books, records, papers and documents
in connection therewith.
All taxes and penalties and any interest thereon received by the Village
Treasurer under the provisions of 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.
Notwithstanding any provisions and requirements of any law, ordinance,
rule or regulation of the Village, the Treasurer of the Village may exchange
with the chief fiscal officer of any city, county, Village or town or with
the chief fiscal officer of the State of New York, or any authorized deputies,
agents or assistants thereof, information contained in returns filed under
the provisions of this article, provided that the laws, ordinances, rules
or regulations of any such county, city, town or Village or any statute or
other law of the State of New York grants reciprocal privileges to the Village
of New Hyde Park, and provided that such information is to be used for tax
purposes only or for such other purposes as may be otherwise permitted under
the State Freedom of Information Law[1] or other state law; and the Treasurer of the Village shall, upon
request, furnish the State Tax Commission with any information contained in
any returns required or received in accordance with this article.
[1]
Editor's Note: See § 85 et seq. of the Public Officers
Law.
