N.Y. Cigarettes, Cigars, Tobacco 235/52 § 1: No title

An act to enable any city of the state having a population of one

million or more to adopt, and amend local laws, imposing certain

specified types of taxes on cigarettes, cigars and smoking tobacco which

the legislature has or would have power and authority to impose, to

provide for the review of such taxes, and to limit the application of

such local laws

Section 1. (1) Notwithstanding any other provision of law to the

contrary, any city of the state having a population of one million or

more inhabitants, acting through its local legislative body, is hereby

authorized and empowered to adopt and amend local laws imposing in any

such city taxes on cigarettes, cigars or smoking tobacco such as the

legislature has or would have power and authority to impose. Such taxes

may be collected and administered by the fiscal officers of such city by

such means and in such manner as may be provided by such local laws. The

taxes may be imposed on the use, sale, exchange, transfer, storage,

withdrawal, possession or retention of cigarettes, cigars or smoking

tobacco, provided, however, that nothing in this act shall authorize the

imposition of a tax on the use, possession or retention (otherwise than

for sale) of two hundred cigarettes or less, of fifty cigars or less or

of two pounds of smoking tobacco or less brought into the city on, or in

possession of, any person.

* (a) The rate of such tax on cigarettes shall not exceed seventy-five

cents for each ten 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 thirty-eight cents for each five cigarettes or fraction

thereof. Such tax is intended to be imposed only once on the same

package of cigarettes.

* NB Effective until December 31, 2020

* (a) The basic rate of such tax on cigarettes shall not exceed two

cents for each ten cigarettes or fraction thereof and is intended to be

imposed only once on the same package of cigarettes; in addition to such

tax there may be imposed an additional tax at the following rates

(1) One and one-half cents for each ten cigarettes where either their

tar content exceeds seventeen milligrams per cigarette or their nicotine

content exceeds one and one-tenth milligrams per cigarette;

(2) Two cents for each ten cigarettes where their tar content exceeds

seventeen milligrams per cigarette and their nicotine content exceeds

one and one-tenth milligrams per cigarette.

* NB Effective December 31, 2020

(b) The rate of such tax on cigars shall not exceed one cent on each

cigar sold at a price of not less than seven cents and not more than

fifteen cents; two cents on each cigar sold at a price of not less than

sixteen cents and not more than twenty-nine cents; and three cents on

each cigar sold at a price of thirty cents or more. Where more than one

cigar is sold, whether or not in a package, box or container, such tax

shall be applied to each cigar on the basis of the price applicable to

each cigar. The tax shall not be applicable to cigars sold at a price

less than seven cents a cigar.

(c) The rate of such tax on smoking tobacco shall not exceed one cent

for each twenty cents or fraction thereof of the price at which such

smoking tobacco is sold.

(2) As used herein, the term "cigarette" shall mean and include (a)

any roll for smoking made wholly or in part of tobacco or of any other

substance wrapped in paper or in any other substance not containing

tobacco, and (b) any roll for smoking made wholly or in part of tobacco

wrapped in any substance containing tobacco that, because of its

appearance, the type of tobacco used in the filler, or its packaging and

labeling, is likely to be offered to, or purchased by, consumers as a

cigarette described in paragraph (a) of this subdivision. However, a

roll will not be considered to be a cigarette for purposes of paragraph

(b) of this subdivision if it is not treated as a cigarette for federal

excise tax purposes under the applicable federal statute in effect on

April first, two thousand eight. The term "cigar" does not include any

cigarette as defined in this subdivision.

(3) A tax imposed hereunder shall have application only within the

territorial limits of any such city and shall be in addition to any and

all other taxes. The method of collecting any tax imposed hereunder,

either with or without adhesive or meter stamps, shall be subject to the

approval of the state tax commission.

(4) Any tax imposed hereunder shall be refunded whenever any

cigarettes upon which the tax has been paid have been sold and shipped

into another state for sale or use there.

(5) No tax imposed pursuant to this section shall apply to the sale of

cigarettes under such circumstances that this state is without power to

impose such tax or to cigarettes sold to the United States or to

cigarettes 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.

(6) Any final determination of the amount of any tax payable hereunder

shall be reviewable for error, illegality or unconstitutionality or any

other reason whatsoever by a proceeding under article seventy-eight of

the civil practice law and rules if application therefor is made to the

supreme court within four months after the giving of the notice of such

final determination, provided, however, that any such proceeding under

article seventy-eight of the civil practice law and rules shall not be

instituted by a person liable for the tax unless the amount of any tax

sought to be reviewed, with such interest and penalties thereon as may

be provided for by local law or regulation, shall be first deposited and

an undertaking filed, in such amount and with such sureties as a justice

of the supreme court shall approve to the effect that if such proceeding

be dismissed or the tax confirmed such person will pay all costs and

charges which may accrue in the prosecution of such proceeding.

(7) Where any tax imposed hereunder shall have been erroneously,

illegally or unconstitutionally collected and application for the refund

thereof duly made to the proper fiscal officer or officers, and such

officer or officers or, in the case of a city of one million or more

which has established tax appeals tribunal, such tax appeals tribunal,

shall have made a determination denying such refund, such determination

shall be reviewable by a proceeding under article seventy-eight of the

civil practice law and rules, provided, however, that such proceeding is

instituted within four months after the giving of the notice of such

denial, that a final determination of tax due was not previously made,

and that an undertaking is filed with the proper fiscal officer or

officers in such amount and with such sureties as a justice of the

supreme court shall approve to the effect that if such proceeding be

dismissed or the tax confirmed, the person liable for the tax will pay

all costs and charges which may accrue in the prosecution of such

proceeding.

(8) Except in the case of a wilfully false or fraudulent return with

intent to evade the tax, no assessment of additional tax shall be made

with respect to taxes imposed hereunder after the expiration of more

than three years from the date of the filing of a return, provided,

however, that where no return has been filed as provided by law the tax

may be assessed at any time.