Current through Register Vol. 46, No. 12, March 20, 2024
Tax Law, §§ 4, 471 and 475
(a)
(1)
Except as otherwise provided for in this section, all cigarettes possessed in
New York State by any person for sale in the State are subject to the tax
imposed by article 20 of the Tax Law. It shall be presumed that all cigarettes
within the State are subject to tax until the contrary is established. The
burden of proof that any cigarettes are not so subject to tax will be upon the
person or persons in possession of such cigarettes.
(2) The tax on the possession of cigarettes
for sale is imposed at the rate of $4.35 for each 20 cigarettes or fraction
thereof. If a package of cigarettes contains more than 20 cigarettes, the rate
of tax on those cigarettes in excess of 20 is $1.0875 for each five cigarettes
or fraction thereof.
(b)
(1) It is the intent of article 20 of the Tax
Law that the ultimate incidence of and liability for the cigarette tax is upon
the consumer of cigarettes and that such tax will ultimately be collected from
the consumer. Though borne by the consumer, the cigarette tax shall be advanced
and paid by licensed cigarette agents. An agent will be liable for the
collection and payment of the tax on the possession of cigarettes for sale
within the State and shall pay the tax to the Department of Taxation and
Finance by purchasing stamps, as defined in subdivision (b) of section
70.2 of
this Title, from a fiscal agent or agent bank duly authorized to sell such
stamps on the department's behalf. The amount of the cigarette tax, evidenced
by the affixation and cancellation of cigarette tax stamps on individual
packages of cigarettes, shall be added to and collected as part of the agent's
sales price of the cigarettes to subsequent dealers or the consumer.
(2)
(i)
Every dealer of cigarettes receiving stamped packages of cigarettes in New York
State shall advance and pay the cigarette tax as part of such dealer's purchase
price and shall pass the tax through to subsequent purchasers.
(ii) If payment of the tax is not evidenced
by the presence of a proper cigarette tax stamp, such cigarettes are presumed
taxable and any dealer (other than an agent) or consumer in possession thereof
may be held liable for the cigarette tax. A dealer of cigarettes, other than an
agent, shall be precluded from purchasing and affixing cigarette stamps and,
unless specifically provided for in this Title, from possessing, selling or
distributing, in any manner whatsoever, unstamped packages of
cigarettes.
(3) In no
event shall the cigarette tax be paid to the department more than once on the
same package of cigarettes.
(c) In general and as provided for in this
Title, no tax will be imposed under article 20 of the Tax Law on cigarettes
sold:
(1) under any circumstances that the
State of New York is without power to impose the tax;
(2) to or by the United States or a voluntary
unincorporated organization of the United States Armed Forces that is operating
a place for the sale of goods pursuant to regulations promulgated by the
appropriate executive agency of the United States;
(3) to the State of New York;
(4) to out-of-state purchasers; or
(5) to the United Nations.
See Part 76 of this Title for exemptions from tax. See
also, section
74.3
of this Part for nontaxable sales of cigarettes exclusively to licensed agents
by persons introducing cigarettes into the New York State
market.
(d) The
Department of Taxation and Finance is authorized to enter into agreements with
any city of the State which imposes a tax which is similar to that imposed by
article 20 of the Tax Law to provide for the joint administration, in whole or
in part, of such taxes. The department has entered into such an agreement with
the City of New York for the partial administration of the city tax on
cigarettes imposed by chapter 13 of title 11 of the Administrative Code of the
City of New York, and in this respect has prescribed joint stamps for payment
of both the State and city liabilities.
