[Adopted 6-21-1944 by L.L. No. 1-1944]
By § 20-b of the General City Laws,
as added by Chapter 321 of the Laws of 1937, and as amended by Chapter
245 of the Laws of 1942, cities are authorized to enact local laws
imposing a tax such as is imposed by § 186-a of the Tax
Law. Pursuant to such authority, this article is modeled upon said
§ 186-a. It is intended thereby and likewise by this article,
enacted pursuant to the above-mentioned authority, to impose a tax
on utility services, whether rendered by utilities in the strict sense
or not, and whether such services are in the main or incidental part
of their business and regardless of whether the public streets are
used in any manner. Accordingly, such a utility is defined for the
purposes of the tax as including every person subject to the supervision
of the Department of Public Service and every other person furnishing
utility services. It is intended to include persons and corporations
which are directly in competition with ordinary utilities, such as
landlords and submeterers, who buy their services from other utilities
and in turn resell such services. For that reason the tax is imposed
in receipts from sales to ultimate consumers. Receipts from the sale
of such utility services to submeterers are not taxed, but receipts
of submeterers from their own customers are intended to be taxed.
Any other construction would result in a complete exemption from taxation
of utility services sold or furnished by this particular method. Furthermore,
it is believed that submeterers have common characteristics that distinguish
them from other businesses and justify the conclusion that the method,
character and nature of their business, in this aspect, is substantially
similar to the business of an ordinary utility and requires similar
treatment for the purposes of the tax. This conclusion is strongly
fortified by the fact that such landlords and submeterers are in direct
competition with ordinary utilities and hence should bear similar
tax burdens in order to avoid inequality of treatment.
[Amended 7-18-1945 by L.L. No. 1-1945; 6-19-1946 by L.L. No. 2-1946; 6-18-1947 by L.L. No. 2-1947; 5-19-1948 by L.L. No. 1-1948; 5-18-1949 by L.L. No. 1-1949; 6-21-1950 by L.L. No. 1-1950]
Pursuant to the authority granted by § 20-b
of the General City Law of the State of New York, a tax equal to 1%
of its gross income from and after July 1, 1950, is hereby imposed
upon every utility doing business in the City of Rye which is subject
to the supervision of the State Department of Public Service, which
has a gross income for the 12 months ending May 31 in excess of $500,
except motor carriers or 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 is
hereby imposed from and after July 1, 1937, upon every utility doing
business in the City of Rye 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 City of Rye
and shall be in addition to any and all other taxes and fees imposed
by any other provision of law for the same period. Such taxes shall
not be imposed on any transaction originating or consummated outside
of the territorial limits of the City of Rye, 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, § 5. See now § 240
et seq. of the Transportation Law.
As used in this article, the following terms
shall have the meanings indicated:
Means and 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 City of Rye, 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 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 City of Rye, 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 City of Rye whatsoever.
Means and 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 City of Rye, 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.
Means persons, corporations, companies, associations, joint-stock
associations, co-partnerships, 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 either
division 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 City
Comptroller may require, and such records shall be preserved for a
period of three years, except that the City Comptroller may consent
to their destruction within that period or may require that they be
kept longer.
[Amended 7-18-1945 by L.L. No. 1-1945; 6-19-1946 by L.L. No. 2-1946; 6-18-1947 by L.L. No. 2-1947; 5-19-1948 by L.L. No. 1-1948; 5-18-1949 by L.L. No. 1-1949; 6-21-1950 by L.L. No. 1-1950]
Every utility subject to tax hereunder shall
file, on or before September 25, December 25, March 25 an June 25,
a return for the three calendar months preceding each such return
date, including any period for which the tax imposed hereby or by
any amendment hereof is effective, each of which returns shall state
the gross income or gross operating income for the period covered
by each such return. Returns shall be filed with the City Comptroller
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the City Comptroller may
require to be included therein. Notwithstanding the foregoing provisions
of this section, any utility whose average gross income or average
gross operating income, as the case may be, for the aforesaid three
months' periods is less than $1,500, may file a return annually on
June 25 for the 12 preceding calendar months, and the City Comptroller
may require any utility doing business in the City of Rye to file
an annual return, which shall contain any data specified by the City
Comptroller, regardless of whether the utility is subject to tax under
this article. The City Comptroller, 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 the
City Comptroller. Every return shall have annexed thereto an affidavit
of the head of the utility making the same, 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 City Comptroller 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 City Comptroller, and
if a correct or sufficient return is not filed within 20 days after
the same is required by notice from the City Comptroller, or if no
return is made for any period, the City Comptroller 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 City Comptroller 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 City Comptroller for a hearing, or unless
the City Comptroller, of his own motion, shall reduce the same. After
such hearing, the City Comptroller shall give notice of his decision
to the person liable for the tax. The decision of the City Comptroller
may be reviewed by a proceeding under Article 78 of the Civil Practice
Act of the State of New York if application therefor is made within
30 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 City Comptroller 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.
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 the 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 City Comptroller, if satisfied
that the delay was excusable, may remit all or any portion of such
penalty.
If, within one year from the payment of any
tax or penalty, the payer thereof shall make application for a refund
thereof and the City Comptroller or the court shall determine that
such tax or penalty or any portion thereof was erroneously or illegally
collected, the City Comptroller 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 City Comptroller. However, no refund shall
be made of a tax penalty paid pursuant to a determination of the City
Comptroller as hereinbefore provided unless the City Comptroller,
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 Act 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 City Comptroller may receive additional evidence with
respect thereto. After making his determination, the City Comptroller
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 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 Corporation Counsel shall,
upon the request of the City Comptroller, bring an action to enforce
payment of the same. The proceeds of any judgment obtained in any
such action shall be paid to the City Comptroller. 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 City
Comptroller 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 the proper judicial order
or as otherwise provided by law, it shall be unlawful for the City
Comptroller or any agent, clerk or employee of the City of Rye 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 City of Rye 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 City Comptroller may assist in the collection
of such delinquent taxes, or the inspection by the Corporation Counsel
or other legal representatives of the City of Rye of the return of
any person who shall bring action to set aside or review the tax based
thereon or against whom an 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 six months, or both, and if the offender be an officer,
agent, clerk or employee of the City of Rye, he shall be dismissed
from office and shall be incapable of holding any office or employment
in the City of Rye for a period of five years thereafter.
C.
Notwithstanding any provisions of this section, the
City Comptroller may exchange with the chief fiscal officer of any
other city in the State of New York information contained in returns
filed under this article, provided such other city grants similar
privileges to the City of Rye, and provided such information is to
be used for tax purposes only, and the City Comptroller shall, upon
request, furnish the State Tax Commission with any information contained
in such returns.
All taxes and penalties received by the Comptroller
under this article shall be credited to and deposited by him in the
general fund of the City.
