New York Codes, Rules and Regulations
Title 20 - DEPARTMENT OF TAXATION AND FINANCE
Chapter I - Franchise and Certain Business Taxes
Subchapter I - Cigarette Tax, Cigarette Marketing Standards And Tobacco Products Tax
Article 1 - Cigarette Tax
Part 74 - Imposition Of Cigarette Taxes
Section 74.5 - Imposition of tax on the use of cigarettes

Universal Citation: 20 NY Comp Codes Rules and Regs § 74.5

Current through Register Vol. 46, No. 12, March 20, 2024

Tax Law, §§ 471-a, 475 and 1814

(a) As a supplement to the tax imposed on cigarettes possessed in New York State for sale, article 20 of the Tax Law also imposes a tax on cigarettes possessed in the State for purposes other than sale. Except as provided for in this section, the cigarette use tax is imposed and must be paid on all cigarettes used in the State by any person. As defined in section 70.2(d) of this Title, a use of cigarettes constitutes the exercise of any right or power, actual or constructive, with respect to cigarettes, but does not include possession for sale. Accordingly, the cigarette tax imposed upon cigarettes used in the State is a complement to the tax imposed on cigarettes possessed for sale in the State and all of the provisions of article 20 of the Tax Law and this Title regarding the latter tax, if not inconsistent with this section, shall apply to the administration and enforcement of the use tax in the same manner as if the language of said provisions had been incorporated in full into this section.

(b)

(1) The tax on cigarettes used in the State 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.

(2) Within 24 hours after a taxable use of cigarettes has occurred, if the cigarette tax has not been paid, the person so using such cigarettes must file a return with the Department of Taxation and Finance and must remit with such return the tax shown to be due thereon (see section 75.3 of this Title).

(1) the tax imposed on cigarettes possessed for sale, as provided in section 471 of the Tax Law, has been paid as evidenced by the presence of New York State cigarette tax stamps affixed to individual packages of such cigarettes;

(2) such cigarettes are exempt from the tax imposed on cigarettes possessed for sale pursuant to such section (see section 74.1[c] of this Part); or

(3) the number of cigarettes brought into the State on, or in the possession of, any person does not exceed 400.

Where a use of cigarettes involves more than 400 cigarettes brought into the State on, or in the possession of, any person, all such cigarettes are subject to tax. Furthermore, where cigarettes are brought into the State other than on, or in the possession of, the user of such cigarettes (e.g., cigarettes delivered into the State by mail) all such cigarettes are taxable.

(d) For purposes of article 37 of the Tax Law with respect to criminal penalties, the possession or transportation within this State by any person, other than an agent, at any one time of 5,000 or more cigarettes in unstamped or unlawfully stamped packages, is presumptive evidence that such cigarettes are possessed or transported for the purpose of sale and are subject to the tax imposed on cigarettes possessed for sale pursuant to section 471 of such law. Any provision of this Title providing for the time period during which the use tax may be paid shall not apply to such possession or transportation.

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