S T A T E   O F   N E W   Y O R K
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                                   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]

A. 481                              4

  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.