N.Y. Tax Law § 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 five 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 thirty-three 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.

7. The taxes imposed under this section shall not apply to adult-use

cannabis products subject to tax under article twenty-C of this chapter.