[Adopted 3-27-1962 by L.L. No. 1-1962 (Ch.
222, Art. I, of the 1981 Code)]
Pursuant to the authority granted by § 5-530
of the Village Law of the State of New York, from on and after June
1, 1962, there is hereby imposed a tax of 1% on the gross income or
gross operating income of the following:
A. Every utility doing business in the Incorporated Village
of Babylon which is subject to the supervision of the New York State
Department of Public Service and which has a gross income for the
12 months ending December 31 in excess of $500, except motor carriers
or brokers subject to such supervision under Article 7 of the Transportation
Law.
B. Every other utility doing business in the Incorporated
Village of Babylon which has a gross operating income for the 12 months
ending December 31 in excess of $500.
As used in this article, the following terms
shall have the meanings indicated:
GROSS INCOME
Includes:
A.
In the case of a utility engaged in selling
telephony or telephone service, including over the Internet, only
receipts from local exchange service wholly consummated within the
Village.
[Amended 6-22-2004 by L.L. No. 2-2004]
B.
In the case of a utility engaged in selling
telegraphy or telegraph service, only receipts from transactions wholly
consummated within the Village.
C.
In the case of any utility other than described in Subsections
A and
B hereof includes:
(1)
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, 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 deductions 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.
(2)
Profits from the sale of securities.
(3)
Profits from the sale of real property growing
out of the ownership or use of or interest in such property.
(4)
Profits from the sale of personal property,
other than property of a kind which would properly be included in
the inventory of a taxpayer if on hand at the close of the period
for which a return is made.
(5)
Receipts from interest, dividends and royalties
derived from sources within the Village, 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.
(6)
Profits from any transaction, except sales for
resale and rentals, within the Village whatsoever.
GROSS OPERATING INCOME
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, refrigeration, telephone or telegraph
service in the Village, including cash, credits and property of any
kind or nature, without 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.
PERSON
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, 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.
UTILITY
Includes:
A.
Every person subject to the supervision of the
New York State Department of Public Service, except:
(1)
Persons engaged in the business of operating
or leasing sleeping and parlor railroad cars.
(2)
Persons engaged in the business of operating
or leasing railroads other than street surface, rapid transit, subway
and elevated railroads.
(3)
Omnibus corporations subject to supervision
under Article 7 of the Transportation Law.
B.
Every person who sells gas, electricity, steam,
water, refrigeration, telephony or telegraphy delivered through mains,
pipes or wires, whether or not such person is subject to the supervision
of the State Department of Public Service.
C.
Every person who 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 regardless
of whether use is made of the public streets.
This article and the tax imposed hereby shall:
A. Apply only within the territorial limits of the Village
of Babylon.
B. Not apply and the tax shall not be imposed on any
transaction originating or consummated outside of the territorial
limits of the Village of Babylon, notwithstanding that some act is
necessarily performed with respect to such transaction within such
limits.
C. Be in addition to any and all other taxes.
D. Apply to all subject income received on and after
June 1, 1962.
All revenues resulting from the imposition of
the tax imposed by 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.
The Village Treasurer shall be the chief enforcement
officer of this article and shall make and be responsible for all
collections hereunder. He shall also have the power and authority
to make any rules or regulations or directives, not inconsistent with
law, which, in his discretion, are reasonably necessary to facilitate
the administration of this article and the collection of the taxes
imposed hereby. Copies of all such rules and regulations and directives
as may from time to time be promulgated shall be sent by registered
mail to all utilities subject to this chapter which register as such
with the Village Treasurer. All such rules, regulations and directives
shall be deemed a portion of this article.
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 unless the Village Treasurer directs otherwise.
A. Time of filing. Every utility subject to a tax hereunder
shall file on or before January 25 and July 25 in each year a return
for the six calendar months preceding each return date, including
any period for which the tax imposed hereby or any amendment hereof
is effective. However, any utility whose average gross income or gross
operating income for the aforesaid six-month period is less than $3,000
may file a return annually on July 25 for the 12 calendar months preceding
each return date, including any period for which the tax imposed hereby
or any amendment hereof is effective. Any utility, whether subject
to tax under this article or not, may be required by the Village Treasurer
to file an annual return.
B. Contents. Returns shall be filed with the Village
Treasurer on a form to be furnished by him for such purpose and shall
show thereon the gross income or gross operating income for the period
covered by the return and such other information, data or matter as
the Village Treasurer may require to be included therein. 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 of a
principal corporate officer 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 hereby for the period covered by such return. Such tax
shall be due and payable at the time of the filing of the return or,
if a return is not filed when due, on the last day on which the return
is required to be filed.
Any utility 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, except the first month, after such return was required to
be filed or such tax became due, but the Village Treasurer, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
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 case any return filed pursuant to this article
shall be insufficient or unsatisfactory to the Village Treasurer,
he may require at any time a further or supplemental return, which
shall contain any data that may be specified by him, 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 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 notification
of such determination to the utility liable for such tax. Such determination
shall finally and irrevocably fix such tax, unless the utility against
which it is assessed shall, within one year after the giving of notice
of such determination, apply to him for a hearing or unless the Village
Treasurer, of his own motion, shall reduce the same. After such hearing
he shall give notice of his decision to the utility liable for such
tax.
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 if application
therefor is made to the Supreme Court within 90 days after the giving
of the notice of such final determination; provided, however, that
any such proceeding under said article shall not be instituted unless
the amount of any tax sought to be reviewed, with such interest and
penalties thereon as are herein provided for, shall be first deposited
and an undertaking filed 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 petitioner
will pay all costs and charges which may accrue in the prosecution
of such proceeding.
[Amended 11-30-1981 by L.L. No. 17-1981]
Any notice authorized or required under the
provisions of this article may be given by mailing the same by certified
mail to the utility for which it is intended, in a postpaid envelope,
addressed to such utility at the address given by it in the last return
filed by it 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 utility
to which addressed. Any period of time which is determined according
to the provisions of this section by the giving of notice shall commence
to run from the date of mailing of such notice.
If, within one year from the giving of notice
of any determination or assessment of any tax or penalty, the utility
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 Treasurer as hereinbefore
provided unless he, 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 certiorari proceeding that such determination
was erroneous or illegal. An application for refund, made as hereinbefore
provided, shall be deemed an application for the revision of any tax
or penalty complained of, and the Treasurer may receive additional
evidence with respect thereto. After making his determination, he
shall give notice thereof to the utility interested, and it shall
be entitled to a certiorari order to review in accordance with the
provisions of the following section hereof.
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 he
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
instituted 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 Village Treasurer 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 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, no assessment or additional tax
shall be made with respect to taxes imposed under this article after
the expiration of more than three years from the date of filing of
a return; provided, however, that where no return has been filed as
required hereby, the tax may be assessed at any time.
In addition to any other powers herein given
the Village Treasurer and in order further to ensure payment of the
tax imposed hereby, he shall have the power to:
A. Prescribe the form of all reports and returns required
to be made hereunder.
B. Take testimony and proofs, under oath, with reference
to any matter hereby entrusted to him.
C. Subpoena and require the attendance of witnesses and
the production of books, papers, records and documents.
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 are made a lien.