2023 New York Laws › TAX - Tax › Article 20 - 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 five 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 thirty-three 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.
7.  The  taxes imposed under this section shall not apply to adult-use
cannabis products subject to tax under article twenty-C of this chapter.