Lotto v. Long Island Lighting Co.

58 A.D.2d 431, 397 N.Y.S.2d 81, 1977 N.Y. App. Div. LEXIS 12425

Opinions

Shapiro, J.

In a class action against the defendant Long Island Lighting Company (LILCO), inter alia, to declare certain rate increases to be invalid, wherein the intervener Town of Islip (Islip) cross-claimed against the said defendant for an accounting on behalf of itself and its residents, LILCO appeals from so much of an order of the Supreme Court, Suffolk County, entered January 8, 1976, as denied its motion to dismiss the cross claim.

Footnotes

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* We reverse the order insofar as it is appealed from, and grant the motion to dismiss.

THE ISSUE

Was it improper for LILCO, pursuant to filed rate schedules approved by the Public Service Commission (the commission), to recover village gross revenue taxes by charging such taxes as part of its general operating expenses (so that residents of other areas had their utility bills increased as a result), where it had been doing so for 30 years (until the commission, in 1973, required that the taxes be allocated to the residents of the taxing villages)? The court at Special Term held that it was improper (Lotto v Long Is. Light. Co., 84 Misc 2d 347).

THE FACTS

From 1937 to 1970 the Public Service Commission treated the gross revenue tax imposed on a utility by villages and cities as a general operating expense in determining the utility’s rates. The effect was that such taxes were recovered from all of the utility’s customers, including residents of municipalities which had not imposed such tax.

In 1970 the commission changed the accounting practice and permitted Consolidated Edison Company of New York, Inc. to surcharge the residents of New York City an amount equal to the gross revenue taxes imposed by New York City upon that utility (Matter of Consolidated Edison Co., 10 NY PSC Rep 434, 85 PUR 3d 276). Based thereon, LILCO applied in its rate proceeding for authorization to treat similar taxes imposed by municipalities in the same manner, and the' application was granted in 1973 (Matter of Long Is. Light, Co., 99 PUR 3d 457, 467).

In this proceeding Islip seeks reimbursement for itself and its residents for so much of city and village gross revenue taxes imposed upon LILCO as were, prior to May, 1973, included in the utility’s operating expenses in establishing rate schedules. In this manner, LILCO collected such taxes from its users in Islip and from Islip itself.

THE LAW

Subdivision 1 of section 5-530 of the Village Law authorizes any village to impose a tax on utilities "such as was imposed by section one hundred eighty-six-a of the tax law * * * except that the rate thereof shall not exceed one per centum of gross income or of gross operating income, as the case may be”. (Section 186-a of the Tax Law imposes a tax of a certain percentage of the gross income upon every utility doing business in the State.) Subdivision 1 of section 5-530 further provides: "A tax imposed pursuant to this section shall have application only within the territorial limits of any such village, and shall be in addition to any and all other taxes. This section shall not authorize the imposition of a tax on any transaction 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.”

Islip claims that the first sentence expressed the legislative intent that the expense of village taxes on utilities was to be borne only by residents of the village imposing such tax. LILCO claims that it merely defined the scope of the tax, and that this was clarified in the succeeding sentence. Special Term concluded, inter alia, that (a) the statute was ambiguous; (b) the Public Service Commission had made two inconsistent interpretations because from 1937 to 1970 it treated the local municipal taxes as a general operating expense, but in 1970 (as to Consolidated Edison) and 1973 (as to LILCO), by permitting local surcharges, it excluded such taxes from being treated as a general operating expense; and (c) there was no statutory justification for the commission’s earlier interpretation, since it produced inequitable results.

However, the issue is not the fairness of the commission’s 1937 to 1973 accounting treatment of the local taxes imposed on LILCO, but whether there is an ambiguity in section 5-530 of the Village Law. We see no ambiguity. That statute permits any village to impose a gross income tax on utilities, but contains the caveat that the tax is to apply only within its territorial limits, i.e., a village could not tax gross income derived from a utility’s customers who reside outside of the village’s territorial limits. It was silent, not ambiguous, how ever, as to how the taxes should be treated for rate purposes. Clearly, it would make no difference to LILCO since its total reimbursement would be the same no matter what accounting method was used.

Such legislative silence simply meant that it was for the commission to decide, in the first instance, the accounting status of such taxes, since it is mandated to oversee a utility’s rates and charges (Public Service Law, § 66, subd 5; Cardone v Consolidated Edison Co. of N. Y, 197 Misc 188, 191, affd 276 App Div 1068). The accounting treatment of the municipal gross income taxes as a general operating expense was applied by the commission, apparently without protest, for more than 30 years. Indeed, the change (in 1970 and 1973) was not due to any protest or a CPLR article 78 review, but was made on the commission’s own decisions approving the respective tariff provisions of Consolidated Edison and LILCO for rate differentials reflecting the tax rates applicable in various jurisdictions. That change did not mean that the prior accounting method was illegal and should give rise to applications for reimbursement (see Murphy v New York Cent. R. R. Co., 225 NY 548, 557; Purcell v New York Cent. R. R. Co., 268 NY 164, 171; 1 NY Jur, Administrative Law, § 109).

Administrative agencies charged with the overseeing of utility rates should be free to take a fresh look at accounting methods and to make changes they deem appropriate without being concerned that they would thereby cause the utility to be liable in damages in vast amounts. A fortiori, this should be so where the utility recieved no more under the old method than it will under the new.

The order, insofar as it denied LILCO’s motion to dismiss Islip’s cross claim, should be reversed and the motion should be granted.

The complaint of the original plaintiff was dismissed by Special Term and his appeal was dismissed by this court, which directed that the cross claim of the Town of Islip be treated as a complaint.