[HISTORY: Adopted Floral Park Village Board 1-20-1953.]
Pursuant to the authority granted by Section
one hundred thirty-eight-d 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 December, 1952, is hereby imposed upon every utility doing
business in the Village of Floral Park 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 three-b of the
Public Service Law, and a tax equal to 1% of its gross operating income
from and after the first day of December, nineteen hundred fifty-two,
is hereby imposed upon every other utility doing business in the Village
of Floral Park 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 Floral Park,
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 Floral Park, notwithstanding that some act
be necessarily performed with respect to such transaction within such
limits.
As used in this local law the word:
UTILITY
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.
PERSON
Means 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.
GROSS INCOME
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 Village of Floral 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 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 Village of Floral 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,
and also profits from any transaction (except sales for resale and
rentals) within the Village of Floral Park 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 Floral
Park, and in the case of a utility engaged in selling telegraphy or
telegraph service, only receipts from transactions wholly consummated
within the Village of Floral Park.
GROSS OPERATING INCOME
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 Village of Floral Park, 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.
Every utility subject to tax under this local
law 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 twenty-fifth day of December, a return
for the 12 calendar months 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 provisions,
any utility may file quarterly, on or before March 25, June 25, September
25 and December 25, 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 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 Floral 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 local law. 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 local law. each utility shall pay to the Village Treasurer the
tax imposed by this local law 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 local
law 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. Such decision may be reviewed by a proceeding under Article
seventy-eight of the Civil Practice Act 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 thereof, 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. Except in the case
of a 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 local law the tax may be assessed at any time.
Any notice authorized or required under the
provisions of this local law 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 in the last return filed
by him under this local law, 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 local law 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 local law 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, excepting 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 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.
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 seventy-eight 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 local law. 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 seventy-eight, subject to the provision hereinbefore
contained relating to the granting of such an order.
The tax imposed by this local law 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 local law, 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 Section one hundred eighty-six-a of the
Tax Law is made a lien.
In the administration of this local law 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 local law, and to subpoena and require the attendance of
witnesses and the production of books, papers and documents.
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 Floral
Park 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 local law. 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 Floral Park in an action or proceeding
under the provisions of this local law, 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 local law when
the returns or facts shown thereby are directly involved in such action
or proceeding, in either of which event 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 daily 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 local law 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 Floral Park 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 local
law.
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, agent, clerk or employee of the Village of Floral Park
he shall be dismissed from office, and shall be incapable of holding
any office or employment in the Village of Floral Park for a period
of five years thereafter.
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Notwithstanding any provisions
of this local law 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 local law,
provided such city or other village grants similar privileges to the
Village of Floral Park, and provided 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.
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All taxes and penalties received by the Village
Treasurer under this local law shall be paid into the treasury of
the village and shall be credited to and deposited in the general
fund of the village.
This local law shall take effect immediately.