2023 New York Laws › TAX - Tax › Article 20-A - Cigarette Marketing Standards › 485 - Determination of Cost of Agent, Retail Dealer or Wholesale Dealer.

§  485.  Determination  of  cost  of agent, retail dealer or wholesale
dealer. (a) 1. In determining "cost of the retail dealer", "cost of  the
agent"  and "cost of the wholesale dealer" the tax commission or a court
shall receive and consider as bearing on the bona fides  of  such  cost,
evidence  tending  to show that any such person complained against under
any of the provisions of this article purchased cigarettes, with respect
to the sale of which complaint is made, at a fictitious price,  or  upon
terms,  or  in  such a manner, or under such invoices, as to conceal the
true costs, discounts or terms of purchase, and shall also  receive  and
consider  as  bearing  on  the  bona fides of such cost, evidence of the
normal, customary and prevailing terms and discounts in connection  with
other sales of a similar nature in the trade area or state.
2. Merchandise given gratis or payment made to an agent, retail dealer
or  wholesale  dealer  by  the  manufacturer  thereof  for  display,  or
advertising,  or  promotion  purposes,  or  otherwise,  shall   not   be
considered  in  determining  the cost of cigarettes to the agent, retail
dealer or wholesale dealer.
(b) In all advertisements, offers for sale or sales involving  two  or
more  items,  at  least  one of which items is cigarettes, at a combined
price, and in all advertisements, offers for sale,  or  sales  involving
the  giving of any gift or concession of any kind whatsoever (whether it
be coupons or otherwise), the  agent's,  retail  dealer's  or  wholesale
dealer's  combined  selling  price  shall  not  be below the cost of the
agent, the cost of the retail  dealer  or  the  cost  of  the  wholesale
dealer,  respectively,  of  the  total  costs of all articles, products,
commodities, gifts and concessions included in such transactions.
(c) When one wholesale dealer sells cigarettes to any other  wholesale
dealer, the former shall not be required to include in his selling price
to the latter, the cost of the wholesale dealer, as defined by paragraph
two  of  subdivision  (b)  of  section four hundred eighty-three of this
article, except that no such sale shall be made at a price less than the
cost of the agent for sales to wholesale dealers as defined by paragraph
one of subdivision (b) of section  four  hundred  eighty-three  of  this
article,  but  the  latter  wholesale  dealer,  upon  resale to a retail
dealer, shall be deemed to be  the  wholesale  dealer  governed  by  the
provisions  of  paragraph two of subdivision (b) of section four hundred
eighty-three of this article.
(d) When one agent sells cigarettes to any  other  agent,  the  former
shall not be required to include in his selling price to the latter, the
cost  of  the  agent,  as defined by paragraph one of subdivision (b) of
section four hundred eighty-three of this article, except that  no  such
sale shall be made at a price less than the basic cost of cigarettes, as
defined  by  paragraph  one  of  subdivision (a) of section four hundred
eighty-three, but the latter agent,  upon  resale  of  such  cigarettes,
shall be deemed to be the agent governed by paragraph one of subdivision
(b)  of  section  four  hundred eighty-three of this article. Cigarettes
sold by an agent to an agent must be picked up at the warehouse  of  the
selling agent, or delivered to the warehouse of the purchasing agent.