[Adopted 1-19-1953 by L.L. No. 1-1953 (Ch.
84 of the 1972 Code)]
[Amended 3-14-2006 by L.L. No. 1-2006]
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 for each and every twelve-month period hereafter,
commencing with June 1 in each year in which it has a gross income
in excess of $500, is hereby imposed upon every utility doing business
in the Village of East Aurora which is subject to the supervision
of the State Department of Public Service, 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 for each and every such twelve-month period upon every
other utility doing business in the Village of East Aurora, which
has a gross operating income for each twelve-month period in excess
of $500, which taxes shall have application only within the territorial
limits of the Village of East Aurora 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 the territorial limits of the Village
of East Aurora, 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Law was repealed by c. 267 of the Laws of 1970, effective March 1,
1971. Similar provisions are now located in § 240 et seq.
of the Transportation Law.
For the purposes of this article, the terms
used herein are defined as follows:
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 East Aurora, 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 cost, interest or discount
paid or any other expense whatsoever, and 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
that 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 East Aurora 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 East Aurora whatsoever.
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 East Aurora, 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, 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.
Every person (including every provider of telecommunications
services) 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 or elevated
railroads and 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 also includes every person
(whether or not such person is subject to such supervision) who shall
engage in the business of selling gas, electricity, steam, water,
refrigeration, telephony or telegraphy delivered through mains, pipes
or wires, or of furnishing gas, electric, steam, water, refrigeration,
telephone or telegraph service by means of mains, pipes or wires.
[Amended 3-14-2006 by L.L. No. 1-2006]
Every utility subject to tax under this article
shall keep such records of its business and in such form as the Village
Treasurer of the Village of East Aurora may require, and such records
shall be preserved for a period of three years, except that the Village
Treasurer of the Village of East Aurora may consent to their destruction
within that period or may require that they be kept longer.
Every utility subject to a tax hereunder shall
file, on or before each September 25, December 25, March 25, and June
25 hereafter, 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 Village Treasurer
on a form to be furnished by him for such purpose and shall contain
such other data, information or matter as the Village Treasurer may
require to be included therein. Notwithstanding the foregoing provisions
of this article, any utility whose average gross income or average
gross operating income, as the case may be, for the aforesaid three
months' period is less than $1,500 may file one return only each year,
on June 25 in each year, to cover the preceding twelve-month period
ending May 31. The Village Treasurer, in order to insure payment of
the tax imposed, may require at any time a further and supplemental
return which shall contain any data that may be specified by the Village
Treasurer. 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
be 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 of the
Village of East Aurora the tax imposed hereby 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 Village Treasurer,
and if a corrected or sufficient return is not filed within 20 days
after the same is required by notice from the Village Treasurer, 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. The Village Treasurer 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. The decision of the Village Treasurer
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 account 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
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 hereunder, 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 it is 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 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, excepting the first month, after such return was required
to be filed or such tax became due; but the Village Treasurer of the
Village of East Aurora, 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 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 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 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.
[Amended 3-14-2006 by L.L. No. 1-2006]
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. Upon
request, the utility shall furnish a statement of the amount of tax
imposed by this article to its customers.
Whenever any person shall fail to pay any tax
or penalty imposed by this article, the Village Attorney shall, upon
request of the Village Treasurer of the Village of East Aurora, begin
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
of the Village of East Aurora. 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 of the Village of East Aurora 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 make 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 orders
or as otherwise provided by law, it shall be unlawful for the Village
Treasurer of the Village of East Aurora, or any agent, clerk or employee
of the Village of East Aurora, 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 East Aurora 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 determine the
production of any 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
of the Village of East Aurora may assist in the collection of such
delinquent taxes, or the inspection by the corporation counsel or
other legal representatives of the Village of East Aurora 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 by an officer,
agent, clerk or employee of the Village of East Aurora, he shall be
dismissed from office and shall be incapable of holding any office
or employment in the Village of East Aurora for a period of five years
thereafter.
C.
Notwithstanding any provisions of this article, the
Village Treasurer of the Village of East Aurora may exchange with
the chief fiscal officer of any other village in the State of New
York information contained in returns filed under this article, provided
that such other village grants similar privileges to the Village of
East Aurora and provided that such information is to be used for tax
purposes only, and the Village Treasurer of the Village of East Aurora
shall, upon request, furnish the State Tax Commission with any information
contained in such returns.
All taxes and penalties received by the Village
Treasurer of the Village of East Aurora for taxes heretofore or hereafter
imposed under this article shall be credited and deposited by him
in the general fund of the Village.
This article shall take effect January 19, 1953.
