N.Y. Tax Law § 471 — Imposition of cigarette tax

§ 471. Imposition of cigarette tax. 1. There is hereby imposed and\nshall be paid a tax on all cigarettes possessed in the state by any\nperson for sale, except that no tax shall be imposed on cigarettes sold\nunder such circumstances that this state is without power to impose such\ntax, including sales to qualified Indians for their own use and\nconsumption on their nations' or tribes' qualified reservation, or sold\nto the United States or sold to or by a voluntary unincorporated\norganization of the armed forces of the United States operating a place\nfor the sale of goods pursuant to regulations promulgated by the\nappropriate executive agency of the United States, to the extent\nprovided in such regulations and policy statements of such an agency\napplicable to such sales. The tax imposed by this section is imposed on\nall cigarettes sold on an Indian reservation to non-members of the\nIndian nation or tribe and to non-Indians and evidence of such tax shall\nbe by means of an affixed cigarette tax stamp. Indian nations or tribes\nmay elect to participate in the Indian tax exemption coupon system\nestablished in section four hundred seventy-one-e of this article which\nprovides a mechanism for the collection of the tax imposed by this\nsection on cigarette sales on qualified reservations to such non-members\nand non-Indians and for the delivery of quantities of tax-exempt\ncigarettes to Indian nations or tribes for the personal use and\nconsumption of qualified members of the Indian nation or tribe. If an\nIndian nation or tribe does not elect to participate in the Indian tax\nexemption coupon system, the prior approval system shall be the\nmechanism for the delivery of quantities of tax-exempt cigarettes to\nIndian nations or tribes for the personal use and consumption of\nqualified members of the Indian nation or tribe as provided for in\nparagraph (b) of subdivision five of this section. Such tax on\ncigarettes shall be at the rate of five dollars and thirty-five cents\nfor each twenty cigarettes or fraction thereof, provided, however, that\nif a package of cigarettes contains more than twenty cigarettes, the\nrate of tax on the cigarettes in such package in excess of twenty shall\nbe one dollar and thirty-three and three-quarters cents for each five\ncigarettes or fraction thereof. Such tax is intended to be imposed upon\nonly one sale of the same package of cigarettes. It shall be presumed\nthat all cigarettes within the state are subject to tax until the\ncontrary is established, and the burden of proof that any cigarettes are\nnot taxable hereunder shall be upon the person in possession thereof.\n 2. It is intended that the ultimate incidence of and liability for the\ntax shall be upon the consumer, and that any agent or dealer who shall\npay the tax to the commissioner shall collect the tax from the purchaser\nor consumer. Except as hereinafter provided, the tax shall be advanced\nand paid by the agent. The agent shall be liable for the collection and\npayment of the tax on cigarettes imposed by this article and shall pay\nthe tax to the commissioner by purchasing, under such regulations as he\nor she shall prescribe, adhesive stamps of such designs and\ndenominations as he or she shall prescribe. The tax on cigarettes may\nalso be paid by or through the use of metering machines if the\ncommissioner so prescribes. Agents, located within or without the state,\nshall purchase stamps and affix such stamps in the manner prescribed to\npackages of cigarettes to be sold within the state, in which case any\ndealer subsequently receiving such stamped packages of cigarettes will\nnot be required to purchase and affix stamps on such packages of\ncigarettes. All cigarettes sold by agents and wholesalers to Indian\nnations or tribes or reservation cigarette sellers located on an Indian\nreservation must bear a tax stamp.\n 3. The amount of taxes advanced and paid by the agent as hereinabove\nprovided shall be added to and collected as part of the sales price of\nthe cigarettes.\n 4. (a) Notwithstanding any provision of law to the contrary, no\nperson, including but not limited to a tobacco product manufacturer,\nshall sell unstamped packages of cigarettes to any agent, if such person\nhas not been provided with a certification by the agent as required in\nparagraph (b) of this subdivision.\n (b) Any agent who purchases unstamped packages of cigarettes from any\nperson, which are intended for resale in or into the state, shall\nprovide such person and the department with a certification under\npenalty of perjury that such cigarettes will not be resold by the agent\nin violation of the terms of this article. Such certification shall be\nprovided to such person and the department prior to the first sale of\nsuch cigarettes by such person to the agent following the effective date\nof this subdivision, and annually thereafter, on such form as shall be\nprescribed by the commissioner.\n 5. Prior approval system. (a) For any year that the recognized\ngoverning body of an Indian nation or tribe has not elected to\nparticipate in the Indian tax exemption coupon system established in\nsection four hundred seventy-one-e of this article, paragraph (b) of\nthis subdivision provides for the prior approval system to be the\nmechanism as to how Indian nations or tribes or reservation cigarette\nsellers can purchase adequate quantities of tax-exempt cigarettes for\nthe personal use and consumption of qualified members of the Indian\nnation or tribe on their nations' or tribes' qualified reservation.\n (b) If an Indian nation or tribe does not elect to participate in the\nIndian tax exemption coupon system, Indian nations or tribes or\nreservation cigarette sellers may purchase from New York state licensed\ncigarette stamping agents and wholesalers an adequate quantity of\ntax-exempt cigarettes based on probable demand on their nations' or\ntribes' qualified reservation for official nation or tribal or qualified\nIndian use or consumption from agents and wholesalers who have received\nprior approval from the department. All such pre-approved tax exempt\ncigarettes shall nonetheless bear a tax stamp. The department shall\ngrant agents and wholesalers prior approval in a manner and form to be\ndetermined by the department and as may be prescribed by regulation. The\ndepartment shall issue expedited refunds or credits to agents whenever\nthe department grants such prior approvals. Probable demand shall be\ndetermined as provided by subdivision two of section four hundred\nseventy-one-e of this article and as may be prescribed by regulation.\n 6. Tax agreements with Indian nations or tribes. If an Indian nation\nor tribe enters into an agreement with the state and the legislature\napproves such agreement or if an Indian nation or tribe enters into an\nagreement with the state that is part of a stipulation and order\napproved by a federal court of competent jurisdiction regarding the sale\nand distribution of cigarettes on the nation's or tribe's qualified\nreservation, the terms of such agreement shall take precedence over the\nprovisions of this article and exempt sales to non-members of the tribe\nor nation and non-Indians by such nation from such taxes to the extent\nthat such taxes are specifically referred to in the agreement, and the\nsale or distribution, including transportation, of any cigarettes to the\nnation's or tribe's qualified reservation shall be in accordance with\nthe provisions of such agreement.\n 7. The taxes imposed under this section shall not apply to adult-use\ncannabis products subject to tax under article twenty-C of this chapter.\n