2012 New York Consolidated Laws
TAX - Tax
Article 20-A - (483 - 489) CIGARETTE MARKETING STANDARDS
483 - Definitions.

 
    §  483.  Definitions.  (a)  Any  term which is defined by section four
  hundred seventy of this chapter shall have the same meaning when used in
  this article, except that for purposes of  this  article  the  following
  terms shall have the meanings herein indicated:
    1.  "Basic  cost  of  cigarettes"  shall  mean  the  invoice  cost  of
  cigarettes to the agent who purchases  from  the  manufacturer,  or  the
  replacement  cost  of  cigarettes  to  the  agent,  in the quantity last
  purchased,  whichever  is  lower,  less  all  trade  discounts,   except
  discounts  for  cash, to which shall be added the full face value of any
  stamps which may be required by law.
    2. "Wholesale dealer" shall mean any person, other than an agent,  who
  sells  cigarettes  to  retail  dealers  or other persons for purposes of
  resale only and who maintains a separate warehousing  facility  for  the
  purpose  of  receiving  and  distributing  cigarettes and conducting its
  wholesale business. If such person is also a retail dealer, such  person
  shall  maintain separate premises for such retail business. It shall not
  include a vending machine operator.
    3. "Chain store"  shall  mean  any  person  or  persons  who  owns  or
  maintains  fifteen  or more retail outlets in New York state, having one
  hundred percent common ownership, through which cigarettes are  sold  at
  retail.   Vending machine operators who sell cigarettes at not less than
  fifteen separate outlets shall be considered  to  be  chain  stores.  It
  shall  also  include  cooperative  members, franchisees and large volume
  outlets. No person shall be considered to be a chain store  unless  such
  person has been registered with the commissioner of taxation and finance
  as provided in section four hundred eighty-nine of this chapter.
    4.  "Retail  dealer" means any person engaged in selling cigarettes at
  retail, and shall include a chain store, a wholesale dealer or an  agent
  for purposes of its sales of cigarettes to consumers.
    5.  "Cooperative  member"  shall mean any member of a "cooperative" as
  defined  in  subdivision  (c)  of  section  three  of  the   cooperative
  corporations  law,  which  operates  a  distribution  center  from which
  members  purchase  grocery  products,  including  prepackaged  food  and
  non-food  products  such  as  paper  products,  soaps and detergents for
  resale and whose members sell cigarettes at retail  through  fifteen  or
  more separate establishments in New York state. In order to qualify as a
  "cooperative  member"  for  the  purposes of this article, a dealer must
  share in the profits  and  losses  of  the  cooperative  and  must  have
  purchased  at  least twenty-five percent of the merchandise it purchased
  for resale during the preceding  three  months  from  such  cooperative,
  excluding  cigarettes  and  petroleum products. Such volume of purchases
  shall be measured by the amount paid for such merchandise, prior to  any
  patronage dividends or refunds based on patronage.
    The  registrations  of  those  cooperative members registered as chain
  stores prior to the effective  date  of  the  chapter  of  the  laws  of
  nineteen  hundred ninety which added this paragraph shall not be revoked
  by reason of their failure to  meet  the  twenty-five  percent  purchase
  requirement,  the  requirement  that  a  cooperative member belongs to a
  cooperative which operates a distribution center or the sharing  in  the
  profits  and  losses  requirement  of this paragraph five, and upon each
  successive reregistration pursuant to section four  hundred  eighty-nine
  of  this  chapter, such cooperative members shall not be subject to such
  requirements, but shall be subject to all  other  requirements  of  this
  article.
    6.  "Franchisee"  shall mean any person or persons engaged in the sale
  of cigarettes as a retail dealer who is a  "franchisee"  as  defined  in
  article  thirty-three  of the general business law, and whose franchisor

  franchises fifteen or more separate retail establishments  in  New  York
  state through which cigarettes are sold.
    7. "Large volume outlet operator" shall mean any person or persons who
  sell  cigarettes  at one or more retail outlets each of which had annual
  gross sales in the previous calendar  year  of  more  than  two  million
  dollars excluding petroleum products in this state.
    (b)  1.  (A) The term "cost of the agent" shall mean the basic cost of
  cigarettes plus the cost of doing business by the agent as evidenced  by
  the accounting standards and methods regularly employed by said agent in
  his  determination  of  costs  for  the  purpose  of  federal income tax
  reporting for  the  total  operation  of  his  establishment,  and  must
  include, without limitation, labor, including salaries of executives and
  officers,  rent,  depreciation, selling costs, maintenance of equipment,
  delivery  costs,  interest  payable,  all  types  of  licenses,   taxes,
  insurance  and  advertising expressed as a percentage and applied to the
  basic cost of cigarettes. Any fractional part of a cent in the  cost  to
  the  agent  per  carton  of  cigarettes shall be rounded off to the next
  higher cent. In the case of sales at retail by an agent,  the  "cost  of
  the  agent" shall be the same as the "cost of the retail dealer". In the
  case of sales of cigarettes to a chain  store  having  fifteen  or  more
  retail outlets, excluding vending machine operators, which are delivered
  to  a central warehouse owned and operated by such chain store and which
  are delivered to its retail outlets by the chain store, the "cost of the
  agent" shall be presumed to be the basic cost of cigarettes. There shall
  be determined a separate cost  of  the  agent  for  sales  to  wholesale
  dealers and for sales to retail dealers.
    (B) In the absence of the filing with the commissioner of satisfactory
  proof  of  a lesser cost of doing business of the agent making the sale,
  the cost of doing  business  by  the  agent  shall  be  presumed  to  be
  seven-eighths  of  one percent of the basic cost of cigarettes for sales
  to wholesale dealers plus one cent per package of  ten  cigarettes,  two
  cents  per  package  of  twenty  cigarettes and in the case of a package
  containing more than twenty cigarettes, two cents and one-half of a cent
  for each five  cigarettes  in  excess  of  twenty  cigarettes,  one  and
  one-half  percent  of  the  basic  cost of cigarettes for sales to chain
  stores plus one cent per  package  of  ten  cigarettes,  two  cents  per
  package  of  twenty  cigarettes  and in the case of a package containing
  more than twenty cigarettes, two cents and one-half of a cent  for  each
  five   cigarettes   in   excess  of  twenty  cigarettes  and  three  and
  seven-eighths percent of the basic cost of cigarettes  with  respect  to
  sales to retail dealers plus one cent per package of ten cigarettes, two
  cents  per  package  of  twenty  cigarettes and in the case of a package
  containing more than twenty cigarettes, two cents and one-half of a cent
  for each  five  cigarettes  in  excess  of  twenty  cigarettes  and  the
  foregoing  cents  per  pack  shall  be  included  in  the "cost of doing
  business by the agent" referred to in paragraphs two and three  of  this
  subdivision.
    2.  (A)  The  term "cost of the wholesale dealer" shall mean the basic
  cost of cigarettes plus the cost of  doing  business  by  the  wholesale
  dealer  as  evidenced  by the accounting standards and methods regularly
  employed by said wholesale dealer in his determination of costs for  the
  purpose  of  federal income tax reporting for the total operation of his
  establishment, and must include, without  limitation,  labor,  including
  salaries  of executives and officers, rent, depreciation, selling costs,
  maintenance of equipment, delivery costs, interest payable, all types of
  licenses, taxes, insurance and advertising expressed as a percentage and
  applied to the basic cost of cigarettes, plus the cost of doing business
  by the agent with respect to sales of cigarettes to  wholesale  dealers.

  Any  fractional  part  of a cent in the cost to the wholesale dealer per
  carton of cigarettes shall be rounded off to the next  higher  cent.  In
  the  case  of  sales  at  retail by a wholesale dealer, the "cost of the
  wholesale  dealer" shall be the same as the "cost of the retail dealer".
  There shall be determined a separate cost of the  wholesale  dealer  for
  sales to chain stores and for sales to retail dealers.
    (B)  In  the  absence  of  the  filing  with  the  tax  commission  of
  satisfactory proof of a lesser cost of doing business of  the  wholesale
  dealer  making  the  sale,  the  cost of doing business by the wholesale
  dealer with respect to sales to retail dealers shall be presumed  to  be
  three  per  centum  of the basic cost of cigarettes, and with respect to
  sales to chain stores, five-eighths of one percent of the basic cost  of
  cigarettes.
    3.  (A) The term "cost of the retail dealer" shall mean the basic cost
  of cigarettes plus the cost of doing business by the  retail  dealer  as
  evidenced  by the accounting standards and methods regularly employed by
  said retail dealer in his determination of  costs  for  the  purpose  of
  federal   income   tax   reporting   for  the  total  operation  of  his
  establishment, and shall include, without limitation,  labor,  including
  salaries  of executives and officers, rent, depreciation, selling costs,
  maintenance of equipment, delivery costs, interest payable, all types of
  licenses, taxes, insurance and advertising expressed as a percentage and
  applied to the basic cost of cigarettes, plus the cost of doing business
  by the agent with respect to sales of cigarettes to retail dealers.  Any
  fractional  part  of a cent in the cost to the retail dealer per package
  or per carton shall be rounded off to the next higher cent.
    (B) In the absence of the filing with the commissioner of taxation and
  finance of satisfactory proof of a lesser cost of doing business by  the
  retail  dealer making the sale, the cost of doing business by the retail
  dealer shall be presumed to be seven per centum of the sum of the  basic
  cost  of  cigarettes  plus  the cost of doing business by the agent with
  respect to cigarettes sold to retail dealers.