2012 New York Consolidated Laws
TAX - Tax
Article 20 - (470 - 482-A) TAX ON CIGARETTES AND TOBACCO PRODUCTS
471 - Imposition of cigarette tax.

 
    §  471.  Imposition  of  cigarette tax. 1. There is hereby imposed and
  shall be paid a tax on all cigarettes possessed  in  the  state  by  any
  person  for sale, except that no tax shall be imposed on cigarettes sold
  under such circumstances that this state is without power to impose such
  tax, including  sales  to  qualified  Indians  for  their  own  use  and
  consumption  on their nations' or tribes' qualified reservation, or sold
  to the United States  or  sold  to  or  by  a  voluntary  unincorporated
  organization  of the armed forces of the United States operating a place
  for the sale  of  goods  pursuant  to  regulations  promulgated  by  the
  appropriate  executive  agency  of  the  United  States,  to  the extent
  provided in such regulations and policy statements  of  such  an  agency
  applicable  to such sales. The tax imposed by this section is imposed on
  all cigarettes sold on an  Indian  reservation  to  non-members  of  the
  Indian nation or tribe and to non-Indians and evidence of such tax shall
  be  by means of an affixed cigarette tax stamp. Indian nations or tribes
  may elect to participate in  the  Indian  tax  exemption  coupon  system
  established  in section four hundred seventy-one-e of this article which
  provides a mechanism for the collection  of  the  tax  imposed  by  this
  section on cigarette sales on qualified reservations to such non-members
  and  non-Indians  and  for  the  delivery  of  quantities  of tax-exempt
  cigarettes to  Indian  nations  or  tribes  for  the  personal  use  and
  consumption  of  qualified  members of the Indian nation or tribe. If an
  Indian nation or tribe does not elect to participate in the  Indian  tax
  exemption  coupon  system,  the  prior  approval  system  shall  be  the
  mechanism for the delivery of quantities  of  tax-exempt  cigarettes  to
  Indian  nations  or  tribes  for  the  personal  use  and consumption of
  qualified members of the Indian nation  or  tribe  as  provided  for  in
  paragraph  (b)  of  subdivision  five  of  this  section.  Such  tax  on
  cigarettes shall be at the rate of four dollars  and  thirty-five  cents
  for  each twenty cigarettes or fraction thereof, provided, however, that
  if a package of cigarettes contains more  than  twenty  cigarettes,  the
  rate  of tax on the cigarettes in such package in excess of twenty shall
  be  one  dollar  and  eight  and  three-quarters  cents  for  each  five
  cigarettes  or fraction thereof. Such tax is intended to be imposed upon
  only one sale of the same package of cigarettes. It  shall  be  presumed
  that  all  cigarettes  within  the  state  are  subject to tax until the
  contrary is established, and the burden of proof that any cigarettes are
  not taxable hereunder shall be upon the person in possession thereof.
    2. It is intended that the ultimate incidence of and liability for the
  tax shall be upon the consumer, and that any agent or dealer  who  shall
  pay the tax to the commissioner shall collect the tax from the purchaser
  or  consumer.  Except as hereinafter provided, the tax shall be advanced
  and paid by the agent. The agent shall be liable for the collection  and
  payment  of  the tax on cigarettes imposed by this article and shall pay
  the tax to the commissioner by purchasing, under such regulations as  he
  or   she   shall   prescribe,   adhesive  stamps  of  such  designs  and
  denominations as he or she shall prescribe. The tax  on  cigarettes  may
  also  be  paid  by  or  through  the  use  of  metering  machines if the
  commissioner so prescribes. Agents, located within or without the state,
  shall purchase stamps and affix such stamps in the manner prescribed  to
  packages  of  cigarettes  to be sold within the state, in which case any
  dealer subsequently receiving such stamped packages of  cigarettes  will
  not  be  required  to  purchase  and  affix  stamps  on such packages of
  cigarettes. All cigarettes sold by  agents  and  wholesalers  to  Indian
  nations  or tribes or reservation cigarette sellers located on an Indian
  reservation must bear a tax stamp.

    3. The amount of taxes advanced and paid by the agent  as  hereinabove
  provided  shall  be added to and collected as part of the sales price of
  the cigarettes.
    4.  (a)  Notwithstanding  any  provision  of  law  to the contrary, no
  person, including but not limited to  a  tobacco  product  manufacturer,
  shall sell unstamped packages of cigarettes to any agent, if such person
  has  not  been provided with a certification by the agent as required in
  paragraph (b) of this subdivision.
    (b) Any agent who purchases unstamped packages of cigarettes from  any
  person,  which  are  intended  for  resale  in  or into the state, shall
  provide such person  and  the  department  with  a  certification  under
  penalty  of perjury that such cigarettes will not be resold by the agent
  in violation of the terms of this article. Such certification  shall  be
  provided  to  such  person and the department prior to the first sale of
  such cigarettes by such person to the agent following the effective date
  of this subdivision, and annually thereafter, on such form as  shall  be
  prescribed by the commissioner.
    5.  Prior  approval  system.  (a)  For  any  year  that the recognized
  governing body  of  an  Indian  nation  or  tribe  has  not  elected  to
  participate  in  the  Indian  tax exemption coupon system established in
  section four hundred seventy-one-e of this  article,  paragraph  (b)  of
  this  subdivision  provides  for  the  prior  approval  system to be the
  mechanism as to how Indian nations or tribes  or  reservation  cigarette
  sellers  can  purchase  adequate quantities of tax-exempt cigarettes for
  the personal use and consumption of  qualified  members  of  the  Indian
  nation or tribe on their nations' or tribes' qualified reservation.
    (b)  If an Indian nation or tribe does not elect to participate in the
  Indian  tax  exemption  coupon  system,  Indian  nations  or  tribes  or
  reservation  cigarette sellers may purchase from New York state licensed
  cigarette stamping  agents  and  wholesalers  an  adequate  quantity  of
  tax-exempt  cigarettes  based  on  probable  demand on their nations' or
  tribes' qualified reservation for official nation or tribal or qualified
  Indian use or consumption from agents and wholesalers who have  received
  prior  approval  from  the  department. All such pre-approved tax exempt
  cigarettes shall nonetheless bear a  tax  stamp.  The  department  shall
  grant  agents  and wholesalers prior approval in a manner and form to be
  determined by the department and as may be prescribed by regulation. The
  department shall issue expedited refunds or credits to  agents  whenever
  the  department  grants  such  prior approvals. Probable demand shall be
  determined as provided  by  subdivision  two  of  section  four  hundred
  seventy-one-e of this article and as may be prescribed by regulation.
    6.  Tax  agreements with Indian nations or tribes. If an Indian nation
  or tribe enters into an agreement with the  state  and  the  legislature
  approves  such  agreement or if an Indian nation or tribe enters into an
  agreement with the state  that  is  part  of  a  stipulation  and  order
  approved by a federal court of competent jurisdiction regarding the sale
  and  distribution  of  cigarettes  on  the nation's or tribe's qualified
  reservation, the terms of such agreement shall take precedence over  the
  provisions  of this article and exempt sales to non-members of the tribe
  or nation and non-Indians by such nation from such taxes to  the  extent
  that  such  taxes are specifically referred to in the agreement, and the
  sale or distribution, including transportation, of any cigarettes to the
  nation's or tribe's qualified reservation shall be  in  accordance  with
  the provisions of such agreement.