S T A T E O F N E W Y O R K
________________________________________________________________________
481
2015-2016 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2015
___________
Introduced by M. of A. GANTT -- read once and referred to the Committee
on Local Governments
AN ACT to amend the general city law and the village law, in relation to
locally administered utility taxes on mobile telecommunications
service
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 20-b of the general city law, as amended by chapter
310 of the laws of 1962, the opening paragraph as amended by chapter 287
of the laws of 1979, is amended to read as follows:
S 20-b. Cities authorized to impose taxes on utilities. 1. Notwith-
standing any other provisions of law to the contrary, any city of this
state, acting through its local legislative body, is hereby authorized
and empowered to adopt and amend local laws imposing in any such city a
tax such as was imposed by section one hundred eighty-six-a of the tax
law, in effect on January first, nineteen hundred fifty-nine, EXCEPT
THAT THE TERM "UTILITY" AS DEFINED IN THAT SECTION ALSO INCLUDES ANY
PROVIDER OF TELECOMMUNICATION SERVICES, AS DEFINED IN PARAGRAPH (E) OF
SUBDIVISION ONE OF SECTION ONE HUNDRED EIGHTY-SIX-E OF THE TAX LAW, AND
except that the rate thereof shall not exceed one per centum of gross
income or of gross operating income, as the case may be, and may make
provision for the collection thereof by the chief fiscal officer of such
city; provided, however, that the rate of such tax imposed by the cities
of Rochester, Buffalo and Yonkers shall not exceed three per centum of
gross income or gross operating income, as the case may be; and provided
further that nothing herein contained shall be construed so as to
prevent any city from adopting local laws exempting from such tax [omni-
bus corporations] COMMON CARRIERS subject to the supervision of the
[state department of public service] COMMISSIONER OF TRANSPORTATION
under article [three-a] FIVE of the [public service] TRANSPORTATION law.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02689-01-5
A. 481 2
FOR PURPOSES OF ANY TAX IMPOSED PURSUANT TO THE AUTHORITY OF THIS
SECTION, THE TERMS "TELEPHONY AND TELEGRAPHY" AND "TELEPHONE AND TELE-
GRAPH SERVICE" INCLUDE MOBILE TELECOMMUNICATIONS SERVICE.
2. A tax imposed pursuant to this section shall have application only
within the territorial limits of any such city, and shall be in addition
to any and all other taxes. [This] EXCEPT AS OTHERWISE PROVIDED, THIS
section shall not authorize the imposition of a tax on any transaction
originating or consummated outside of the territorial limits of any such
city, notwithstanding that some act be necessarily performed with
respect to such transaction within such limits. ANY TAX ON MOBILE TELE-
COMMUNICATIONS SERVICE AUTHORIZED TO BE IMPOSED BY THIS SECTION MUST BE
IMPOSED ONLY ON MOBILE TELECOMMUNICATIONS SERVICE PROVIDED BY A HOME
SERVICE PROVIDER WHERE THE MOBILE TELECOMMUNICATIONS CUSTOMER'S PLACE OF
PRIMARY USE IS WITHIN THE TERRITORIAL LIMITS OF THE CITY. FOR PURPOSES
OF ANY TAX IMPOSED PURSUANT TO THE AUTHORITY OF THIS SECTION, THE TERMS
"MOBILE TELECOMMUNICATIONS SERVICE", "PLACE OF PRIMARY USE", "MOBILE
TELECOMMUNICATIONS CUSTOMER", AND "HOME SERVICE PROVIDER" SHALL HAVE THE
SAME MEANING AS THOSE TERMS HAVE IN PARAGRAPHS TWENTY-FOUR, TWENTY-SIX
AND TWENTY-SEVEN, RESPECTIVELY, OF SUBDIVISION (B) OF SECTION ELEVEN
HUNDRED ONE OF THE TAX LAW.
3. Revenues resulting from the imposition of taxes authorized by this
section heretofore or hereafter imposed shall be paid into the treasury
of the city imposing the same, and shall be credited to and deposited in
the general fund of such city.
4. All of the provisions of [section] SECTIONS one hundred
eighty-six-a AND ONE HUNDRED EIGHTY-SIX-E of the tax law, so far as the
same are or can be made applicable, with such limitations as are set
forth in this section, and such modifications as may be necessary in
order to adapt such taxes to local conditions shall apply to the taxes
authorized by this section.
5. 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 seventy-eight of
the civil practice law and rules if application therefor is made to the
supreme court within thirty days after the giving of the notice of such
final determination, provided, however, that any such proceeding under
article seventy-eight of the civil practice law and rules shall not be
instituted unless the amount of any tax sought to be reviewed, with such
interest and penalties thereon as may be provided for by local law or
regulation, 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 be dismissed or the tax
confirmed the petitioner will pay all costs and charges which may accrue
in the prosecution of such proceeding.
6. Where any tax imposed hereunder shall have been erroneously, ille-
gally or unconstitutionally collected and application for the refund
thereof duly made to the proper fiscal officer or officers, and such
officer or officers shall have made a determination denying such refund,
such determination shall be reviewable by a proceeding under article
seventy-eight of the civil practice law and rules, provided, however,
that such proceeding is instituted within thirty 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 proper
fiscal officer or officers 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 petitioner will pay
A. 481 3
all costs and charges which may accrue in the prosecution of such
proceeding.
S 2. Section 5-530 of the village law is amended to read as follows:
S 5-530 Villages authorized to impose taxes on utilities. l. Notwith-
standing any other provisions of law to the contrary, any village is
hereby authorized and empowered to adopt and amend local laws imposing
in any such village a tax such as was imposed by section one hundred
eighty-six-a of the tax law, in effect on January first, nineteen
hundred fifty-nine, EXCEPT THAT THE TERM "UTILITY" AS DEFINED IN THAT
SECTION ALSO INCLUDES ANY PROVIDER OF TELECOMMUNICATION SERVICES, AS
DEFINED IN PARAGRAPH (E) OF SUBDIVISION ONE OF SECTION ONE HUNDRED
EIGHTY-SIX-E OF THE TAX LAW, AND except that the rate thereof shall not
exceed one per centum of gross income or of gross operating income, as
the case may be, and may make provision for the collection thereof by
the chief fiscal officer of such village; provided, however, that noth-
ing herein contained shall be construed so as to prevent any village
from adopting local laws exempting from such tax [omnibus corporations]
COMMON CARRIERS subject to the supervision of the [state department of
public service] COMMISSIONER OF TRANSPORTATION under article [three-a]
FIVE of the [public service] TRANSPORTATION law. FOR PURPOSES OF ANY TAX
IMPOSED PURSUANT TO THE AUTHORITY OF THIS SECTION, THE TERMS "TELEPHONY
AND TELEGRAPHY" AND "TELEPHONE AND TELEGRAPH SERVICE" INCLUDE MOBILE
TELECOMMUNICATIONS SERVICE.
2. A tax imposed pursuant to this section shall have application only
within the territorial limits of any such village, and shall be in addi-
tion to any and all other taxes. [This] EXCEPT AS OTHERWISE PROVIDED,
THIS section shall not authorize the imposition of a tax on any trans-
action originating or consummated outside of the territorial limits of
any such village, notwithstanding that some act be necessarily performed
with respect to such transaction within such limits.
[2.] ANY TAX ON MOBILE TELECOMMUNICATIONS SERVICE AUTHORIZED TO BE
IMPOSED BY THIS SECTION MUST BE IMPOSED ONLY ON MOBILE TELECOMMUNI-
CATIONS SERVICE PROVIDED BY A HOME SERVICE PROVIDER WHERE THE MOBILE
TELECOMMUNICATIONS CUSTOMER'S PLACE OF PRIMARY USE IS WITHIN THE TERRI-
TORIAL LIMITS OF THE VILLAGE. FOR PURPOSES OF ANY TAX IMPOSED PURSUANT
TO THE AUTHORITY OF THIS SECTION, THE TERMS "MOBILE TELECOMMUNICATIONS
SERVICE", "PLACE OF PRIMARY USE", "MOBILE TELECOMMUNICATIONS CUSTOMER",
AND "HOME SERVICE PROVIDER" SHALL HAVE THE SAME MEANING AS THOSE TERMS
HAVE IN PARAGRAPHS TWENTY-FOUR, TWENTY-SIX, AND TWENTY-SEVEN, RESPEC-
TIVELY, OF SUBDIVISION (B) OF SECTION ELEVEN HUNDRED ONE OF THE TAX LAW.
3. Revenues resulting from the imposition of taxes authorized by this
section heretofore or hereafter imposed shall be paid to the treasurer
of the village imposing the same, and shall be credited to and deposited
in the general fund of such village.
[3.] 4. All of the provisions of [section] SECTIONS one hundred eight-
y-six-a AND ONE HUNDRED EIGHTY-SIX-E of the tax law, so far as the same
are or can be made applicable, with such limitations as are set forth in
this section, and such modifications as may be necessary in order to
adapt such taxes to local conditions shall apply to the taxes authorized
by this section.
[4.] 5. Notwithstanding any other provisions of this section or of
section one hundred eighty-six-a of the tax law, the words "gross
income" shall include:
a. In the case of a utility engaged in selling telephony or telephone
service OTHER THAN MOBILE TELECOMMUNICATIONS SERVICE, only receipts from
local exchange service wholly consummated within the village; [and]
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b. In the case of a utility engaged in selling telegraphy or telegraph
service OTHER THAN MOBILE TELECOMMUNICATIONS SERVICE, only receipts from
transactions wholly consummated within the village; AND
C. IN THE CASE OF A UTILITY ENGAGED IN SELLING MOBILE TELECOMMUNI-
CATIONS SERVICE, ONLY RECEIPTS FROM SALES OF MOBILE TELECOMMUNICATIONS
SERVICE TO MOBILE TELECOMMUNICATIONS CUSTOMERS WITH A PLACE OF PRIMARY
USE WITHIN THE VILLAGE.
[5.] 6. Any final determination of the amount of any tax payable here-
under shall be reviewable for error, illegality, or unconstitutionality
or any other reason whatsoever by a proceeding under article seventy-
eight of the civil practice law and rules if the proceeding is commenced
within ninety days after the giving of the notice of such final determi-
nation; provided, however, that any such proceeding under said article
seventy-eight shall not be instituted unless the amount of any tax
sought to be reviewed, with such interest and penalties thereon as may
be provided for by local law, ordinance or resolution, shall be first
deposited and an undertaking filed, in such amount and with such sure-
ties as a justice of the supreme court 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.
[6.] 7. Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the refund
thereof duly made to the proper fiscal officer or officers, and such
officer or officers shall have made a determination denying such refund,
such determination shall be reviewable by a proceeding under article
seventy-eight of the civil practice law and rules, provided, however,
that such proceeding is commenced within ninety 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 proper fiscal
officer or officers 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 petitioner will pay all costs and
charges which may accrue in the prosecution of such proceeding.
[7.] 8. 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 with respect to taxes imposed under this section, after the expira-
tion of more than three years from the date of the filing of a return,
provided, that where no return has been filed as provided by local law
the tax may be assessed at any time.
S 3. Any local law adopted pursuant to the authority of section 20-b
of the general city law or section 5-530 of the village law shall be
deemed amended to conform to the provisions of sections one and two of
this act with respect to taxable periods beginning on or after September
1, 2015, except that any exemption applicable to an omnibus corporation
in effect on September 1, 2015, shall not be affected by any amendment
made to such provisions.
S 4. This act shall take effect September 1, 2015 and shall apply to
taxable periods beginning on and after such date.