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.