2023 New York Laws › TAX - Tax › Article 20 - Tax on Cigarettes and Tobacco Products › 480-A - Retail Dealer and Vending Machine Registration.

§ 480-a. Retail dealer and vending machine registration. 1. (a) On and
after  January  first,  nineteen hundred ninety-one, every retail dealer
shall publicly display a certificate of registration from the department
in each  place  of  business  in  this  state  through  which  it  sells
cigarettes  or  tobacco  products  at retail. A retail dealer who has no
regular place of business shall publicly  display  such  certificate  on
each of its carts, stands, trucks or other merchandising devices through
which it sells cigarettes or tobacco products in this state.
(b)  Every  person who owns or, if the owner is not the operator, then
any person who operates one  or  more  vending  machines  through  which
cigarettes  or  tobacco  products  are sold in this state, regardless of
whether located on the premises of the vending machine owner or, if  the
owner  is  not  the  operator,  then the premises of the operator or the
premises of any other person, must register each  such  vending  machine
with  the  department.  On  and  after  January  first, nineteen hundred
ninety-one, a vending machine registration certificate, in such form  as
may  be prescribed by the commissioner of taxation and finance, shall be
affixed to each vending machine  through  which  cigarettes  or  tobacco
products are sold in this state.
(c)  Registrations  of  retail  dealers  and vending machines shall be
valid for a calendar year period upon payment of the fee  prescribed  in
subdivision  two  of  this  section  and  must be renewed each year upon
payment  of  such  fee.  A  registration  shall  not  be  assignable  or
transferable.  In  the case of retail dealers a registration certificate
shall be surrendered to  the  department  immediately  upon  the  retail
dealer's  ceasing  to  do  business  as  specified  in  the registration
certificate, or in the event that such business never commenced.
(d) (i) The commissioner shall not register  retail  dealers  or  such
registration  may  be  cancelled  or  suspended by the commissioner upon
notification that the applicant or retail dealer has been convicted in a
criminal proceeding of a violation of subdivision five of section 260.20
of the penal law or as directed by an enforcement  officer  pursuant  to
article  thirteen-F  of  the  public  health law. The clerk of the court
shall promptly report all criminal convictions under subdivision five of
section 260.20 of the penal law to the  commissioner,  together  with  a
direction  to the commissioner to cancel such registration or to suspend
it for a specified period of time. Anything to the contrary in  any  law
notwithstanding,  retail  dealers shall have no right to a hearing under
this chapter and shall have no right  to  commence  a  court  action  or
proceeding  or to any other legal recourse against the commissioner with
respect to any action taken by the commissioner  under  this  paragraph,
provided  nothing  herein  shall  be  construed to deny retail dealers a
hearing under article thirteen-F of the public health law or to prohibit
retail dealers from commencing a court action or proceeding  against  an
enforcement   officer   as   defined   in   section   thirteen   hundred
ninety-nine-aa of the public health law.
(ii)  Anything  to  the  contrary  in  any  law  notwithstanding,  the
commissioner  shall  provide  upon  request to an enforcement officer as
defined in section thirteen hundred ninety-nine-aa of the public  health
law  such  registration information as is relevant and necessary for the
implementation of article thirteen-F of the public health law.
(e) The commissioner may refuse to register as a retail dealer or  may
revoke  the  registration  of  a  retail dealer where the applicant's or
retail dealer's place of business is at the same premises as that  of  a
retail  dealer  whose  retail  dealer  registration has been revoked and
where such revocation is still in effect, unless the applicant or retail
dealer   provides   the   commissioner   with   adequate   documentation
demonstrating that such applicant or retail dealer acquired the premises

or  business  through  an  arm's  length  transaction as defined in this
paragraph and that the sale or lease was not conducted, in whole  or  in
part, for the purpose of permitting the original registrant to avoid the
effect of the previous revocation for the same premises. For purposes of
this  paragraph, "arm's length transaction" means a sale of a fee or all
undivided interests in real property, or lease of any part thereof, or a
sale of a business, in good faith and for valuable  consideration,  that
reflects  the  fair  market  value  of  such  real property or lease, or
business, in the open market, between two informed and willing  parties,
where neither is under any compulsion to participate in the transaction,
unaffected by any unusual conditions indicating a reasonable possibility
that  the  sale  or  lease  was  made  for the purpose of permitting the
original registrant to avoid the effect of the previous  revocation  for
the  same  premises. The following sales or leases shall be presumed not
to  be  arm's  length  transactions  unless  adequate  documentation  is
provided  demonstrating  that  the  sale  or lease was not conducted, in
whole or in part, for the purpose of permitting the original  registrant
to avoid the effect of the previous revocation for the same premises:
(i) a sale between relatives; or
(ii) a sale between related companies or partners in a business; or
(iii)  a  sale  or lease affected by other facts or circumstances that
would indicate that the sale or lease is entered into  for  the  primary
purpose of permitting the original registrant to avoid the effect of the
previous revocation for the same premises.
(f) In addition to the grounds for refusal of a registration specified
in  section eleven hundred thirty-four of this chapter, the commissioner
may refuse to register any person as a retail dealer where any tax under
this chapter, or a tax or fee administered by the commissioner under any
other law, has been finally determined to be due from  such  person,  or
from  a  person  required  to collect tax with respect to such person or
another person, and has not been paid.
2. (a) (i) Every retail dealer and every  person  owning  or,  if  the
owner is not the operator, then any person operating one or more vending
machines  through  which cigarettes or tobacco products are sold in this
state, who is required under section eleven hundred thirty-six  of  this
chapter to file a return for the quarterly period ending on the last day
of August, nineteen hundred ninety or for the quarterly period ending on
the  last day of August in any year thereafter, must file an application
for registration under this section with that quarterly return, in  such
form as shall be prescribed by the commissioner.
(ii) Each retail dealer must pay an application fee with the quarterly
return  of  three  hundred  dollars for each retail place of business in
this state through which it sells cigarettes or tobacco products.
(iii) Every person who owns or, if the owner is not the operator, then
any person who operates one  or  more  vending  machines  through  which
cigarettes  or  tobacco  products  are sold in this state, regardless of
whether located on the premises of the vending machine owner or, if  the
owner  is  not  the  operator,  then the premises of the operator or the
premises of any other person, must  pay  an  application  fee  with  the
quarterly  return  of  one hundred dollars for each vending machine. The
department will issue a registration certificate, as prescribed  by  the
commissioner,  after  receipt  of  a  registration  application  and the
appropriate registration fee,  prior  to  the  next  succeeding  January
first.
(b)  Every retail dealer and every person who owns or, if the owner is
not the operator, then any person  who  operates  one  or  more  vending
machines  through  which cigarettes or tobacco products are sold in this
state who commences business after the  last  day  of  August,  nineteen

hundred  ninety, or who commences selling cigarettes or tobacco products
at retail through a new or different place of  business  in  this  state
after such date, or who commences selling cigarettes or tobacco products
through  new  or  different  vending machines after such date, must file
with the  commissioner  an  application  for  registration,  in  a  form
prescribed  by  him  or  her,  at  least thirty days prior to commencing
business or commencing sales. Each application must be accompanied by an
application fee of three  hundred  dollars  for  each  retail  place  of
business  and  one  hundred  dollars  for  each  vending  machine  to be
registered.  The  department,  within  ten  days  after  receipt  of  an
application  for  registration  under  this paragraph and payment of the
proper fee for application for registration, will issue  a  registration
certificate, as prescribed by the commissioner, for each retail place of
business or cigarette or tobacco products vending machine registered.
(c)  In addition to the powers granted to the commissioner of taxation
and finance in this chapter, the commissioner is  hereby  authorized  to
make  provisions  for  the joint administration, in whole or in part, of
the state and local taxes imposed by article twenty-eight and authorized
to  be  imposed  by  article  twenty-nine  of  this  chapter   and   the
registrations and fees for application for registration required by this
section,  including  the  joint  reporting,  assessment,  collection and
determination of such taxes and the registration and fees  provided  for
in  this  section,  and  for  that purpose, to prescribe that any of the
commissioner's functions under such articles or this  section,  and  any
returns,  forms, statements, documents or information to be submitted to
the commissioner under such articles or  this  section,  any  books  and
records to be kept for purposes of the taxes imposed or authorized to be
imposed  by such articles or for purposes of this section, any schedules
of amounts to be collected under such  articles  or  this  section,  any
registration  required  under  such  articles  or  this section, and the
payment of taxes under such articles, or  of  fees  under  this  section
shall be on a joint basis.
(d)  Except  as otherwise provided in this section, all the provisions
of article  twenty-eight  of  this  chapter  relating  to  the  personal
liability  for  the tax, administration, collection and determination of
tax, and deposit and disposition of revenue,  including  section  eleven
hundred  thirty-eight  of  this chapter relating to determination of tax
and  section  eleven  hundred  forty-five  of  this  chapter  (but  only
paragraphs  one  and two of subdivision (a) of such section) relating to
penalties and interest for failure to file a return or  pay  tax  within
the  time required, shall apply to the applications for registration and
the fees for filing such applications required by this section  and  the
penalty  imposed  pursuant  to  subdivision three of this section, as if
such applications were returns required  under  section  eleven  hundred
thirty-six  of this chapter and such filing fees, penalties and interest
were taxes required to be paid pursuant to such article twenty-eight, in
the same manner and with the same force and effect as if the language of
such provisions of such article twenty-eight had  been  incorporated  in
full  into this article, except to the extent that any such provision is
either inconsistent with a provision of this section or is not  relevant
thereto  and  with such other modifications as may be necessary to adapt
the language of such provisions  to  the  provisions  of  this  section.
Provided,  however,  that the commissioner of taxation and finance shall
refund  or  credit  an  application  fee  paid  with  respect   to   the
registration  of a vending machine or a retail place of business in this
state through which cigarettes or tobacco products were to be  sold  if,
prior  to  the beginning of the calendar year with respect to which such
registration relates,  the  certificate  of  registration  described  in

paragraph  (a)  of  this  subdivision  is  returned to the department of
taxation and finance, or if such certificate  has  been  destroyed,  the
retail dealer or vending machine operator satisfactorily accounts to the
commissioner  for  the  missing certificate, but such vending machine or
retail place of business may not be used to sell cigarettes  or  tobacco
products  in  this  state  during  such  calendar  year,  unless  it  is
re-registered. The provisions of section eleven hundred  thirty-nine  of
this  chapter  shall  apply  to  the  refund or credit authorized by the
preceding sentence and for such purposes, such refund or credit shall be
deemed a refund of tax paid in  error  provided,  however,  no  interest
shall be allowed or paid on any such refund.
3.  In  addition to any other penalty imposed by this chapter: (a) Any
retail dealer who violates the provisions of  this  section,  after  due
notice and an opportunity for a hearing, for a first violation is liable
for  a  civil fine not less than five thousand dollars but not to exceed
twenty-five thousand dollars and for a second  or  subsequent  violation
within  three years following a prior finding of violation is liable for
a civil fine not less than  ten  thousand  dollars  but  not  to  exceed
thirty-five thousand dollars; or
(b) Any person who owns or, if the owner is not the operator, then any
person   who  operates  one  or  more  vending  machines  through  which
cigarettes or tobacco products are sold in this state and  who  violates
the  provisions of this section, after due notice and an opportunity for
a hearing, for a first violation is liable for a  civil  fine  not  less
than  seven hundred fifty dollars but not to exceed two thousand dollars
and for a second or subsequent violation within three years following  a
prior  finding of violation be liable for a civil fine not less than two
thousand dollars but not to exceed six thousand dollars.
(c) If a retail dealer does not possess a valid  registration,  either
because  it  failed  to  obtain  a  registration  or its registration is
suspended or revoked and the commissioner or their designee, pursuant to
their authority under this article, attempts to  inspect  such  premises
for  a  violation  of  this section and such retail dealer, including an
agent thereof, is found, after notice and opportunity to  be  heard,  to
have  refused  such inspection, such retail dealer shall be subject to a
penalty of up to four thousand dollars for a first  refusal  and  up  to
eight  thousand  dollars for a second or subsequent refusal within three
years of a prior refusal.
4. (a) If a retail dealer possesses or sells unstamped  or  unlawfully
stamped  packages  of cigarettes, or if a retail dealer is also licensed
as an  agent  pursuant  to  section  four  hundred  seventy-two  and  it
possesses  unlawfully  stamped packages of cigarettes or sells unstamped
or  unlawfully  stamped  packages  of  cigarettes  at  retail,  (i)  its
registration  shall  be  revoked for a period of one year, or (ii) for a
second such possession or sale within a period of five years by a retail
dealer or any affiliated person of such retail dealer, the  registration
of  such retail dealer and the registration of any retail dealer that is
an affiliated person of such retail dealer shall be revoked for a period
of three years, or (iii) for a third such possession or  sale  within  a
period of five years by a retail dealer or any affiliated person of such
retail   dealer,   the  registration  of  such  retail  dealer  and  the
registration of any retail dealer that is an affiliated person  of  such
retail  dealer  shall  be  revoked  for a period of five years. A retail
dealer registration  shall  be  revoked  pursuant  to  this  subdivision
immediately  upon  such dealer's receipt of written notice of revocation
from the commissioner. If unstamped or unlawfully stamped cigarettes are
found in a retail dealer's warehouse or a warehouse  of  any  affiliated
person  of  such  retail  dealer,  the revocation of the retail dealer's

registration pursuant to this subdivision shall be  applicable  to  each
retail  place of business in this state through which such retail dealer
and any affiliated person of such retail dealer sells cigarettes.
(a-1)  If  a  retail  dealer,  including  an agent thereof, refuses to
comply with the requirements of subdivision four of section four hundred
seventy-four of this article its registration may be revoked (i)  for  a
period  of one year, or (ii) for a second such violation within a period
of five years for up to three years, or (iii) for a third or  subsequent
violation within a period of seven years for a period up to ten years. A
retail dealer registration shall be considered to be revoked pursuant to
this  subdivision  immediately  upon  such  dealer's  receipt of written
notice of revocation from the commissioner.
(b)  A  retail  dealer  who  is  notified  of  a  revocation  of   its
registration  pursuant  to this subdivision shall have the right to have
the revocation reviewed by the commissioner or his or  her  designee  by
contacting  the  department  at  a  telephone number or an address to be
disclosed in the notice of revocation within ten days of  such  dealer's
receipt  of  such  notification.  The  retail dealer may present written
evidence or argument in support of its defense to the revocation, or may
appear at a scheduled conference with the commissioner  or  his  or  her
designee  to  present  oral  arguments  and written and oral evidence in
support of such defense. The commissioner or  his  or  her  designee  is
authorized  to  delay the effective date of the revocation to enable the
retail dealer to present further evidence  or  arguments  in  connection
with  the  revocation.    The  commissioner or his or her designee shall
cancel the revocation of registration if the commissioner or his or  her
designee  is  not  satisfied by a preponderance of the evidence that the
retail dealer violated paragraph (a) or (a-1) of  this  subdivision,  as
may be applicable.
(c)  An  order of revocation of a retail dealer registration shall not
be reviewable by the division  of  tax  appeals,  but  may  be  reviewed
pursuant to article seventy-eight of the civil practice law and rules by
a  proceeding  commenced  in the supreme court within four months of the
revocation of registration petitioning that the order of  revocation  be
enjoined or set aside. Such proceeding shall be instituted in the county
where  the commissioner has his or her principal office. Upon the filing
of such petition the court shall have jurisdiction  to  set  aside  such
order  of  revocation,  in whole or in part, or to dismiss the petition.
The jurisdiction of the supreme court shall be exclusive and  its  order
dismissing  the  petition  or  enjoining or setting aside such order, in
whole or in part, shall be final, subject to  review  by  the  appellate
division  of  the  supreme  court  and  the court of appeals in the same
manner and form and with the same effect as provided by law for  appeals
from  a  judgment in a special proceeding. All such proceedings shall be
heard and determined  by  the  court  and  by  any  appellate  court  as
expeditiously  as  possible  and with lawful precedence over other civil
matters. All such proceedings for review shall be heard on the petition,
transcript and other papers, and on appeal shall be heard on the record,
without requirement of printing.
(d) After review of the revocation of registration by the commissioner
or his or her designee is complete, or the time within  which  a  retail
dealer may request such review has expired without such a request having
been  made,  notice  of  the  revocation of a retail dealer registration
pursuant to paragraph (a) of this subdivision  shall  be  given  by  the
commissioner  to the head of the division of the lottery for the purpose
of enforcement of section sixteen hundred seven of this chapter and such
division may suspend or revoke any license  issued  with  respect  to  a
lottery  agent's  specific  location  pursuant to article thirty-four of

this chapter if such lottery agent is  a  retail  dealer  of  cigarettes
whose registration for such location is suspended or revoked pursuant to
this section. In addition, notice of such revocation shall also be given
to  the  state  liquor  authority  and  such revocation shall constitute
cause, for purposes of section one hundred  eighteen  of  the  alcoholic
beverage  control law, for revocation, cancellation or suspension of any
license or permit issued pursuant to such law.
5. Except for subdivision (i) of section eighteen hundred fourteen  of
this  chapter,  the criminal penalties set forth in article thirty-seven
of this chapter shall not apply to a violation of this section.
6. (a) No  retail  dealer  who  has  its  retail  dealer  registration
cancelled,  suspended  or  revoked  pursuant to this section or has been
forbidden from  selling  cigarettes  or  tobacco  products  pursuant  to
paragraph  (j) of subdivision one of section four hundred eighty of this
article shall possess cigarettes or tobacco products  in  any  place  of
business, cart, stand, truck or other merchandising device in this state
beginning   on  the  tenth  day  after  such  cancellation,  suspension,
revocation, or forbiddance and continuing for the duration of the  same;
provided  however, such retail dealer shall not be prohibited before the
tenth  day  after  such   cancellation,   suspension,   revocation,   or
forbiddance  from  selling  or  transferring  its  inventory of lawfully
stamped cigarettes or tobacco products on which  the  taxes  imposed  by
this  article  have been assumed or paid to a properly registered retail
dealer whose registration is not cancelled, suspended, or revoked or who
has not been forbidden from selling cigarettes or tobacco products.
(b) No retail dealer shall possess cigarettes or tobacco  products  in
any  place of business, cart, stand, truck or other merchandising device
in this state unless it has obtained a valid retail dealer  registration
from the commissioner.
(c)  The possession of cigarettes or tobacco products by an unlicensed
retail dealer in violation of paragraph (a) or (b) of  this  subdivision
shall  be  subject  to  the penalties authorized by subdivision three of
this section.