N.Y. Tax Law § 498: Imposition of excise tax

§ 498. Imposition of excise tax. (a) There is hereby imposed an excise

tax on the first sale of every opioid unit in the state at the following

rates: (1) a quarter of a cent per morphine milligram equivalent where

the wholesale acquisition cost is less than fifty cents, or (2) one and

one-half cents per morphine milligram equivalent where the wholesale

acquisition cost is fifty cents or more; except that such tax shall not

apply when such first sale is to any program operated pursuant to

article forty of the public health law and article thirty-two of the

mental hygiene law. The tax imposed by this article shall be charged

against and paid by the registrant making such first sale, and shall

accrue at the time of such sale. For the purpose of the proper

administration of this article and to prevent evasion of the tax hereby

imposed, it shall be presumed that any sale of an opioid unit in this

state by a registrant is the first sale of such in the state until the

contrary is established, and the burden of proving that any sale is not

the first sale in the state shall be upon the registrant.

(b) Every registrant liable for the tax imposed by this article shall

file with the commissioner a return on forms to be prescribed by the

commissioner showing the total morphine milligram equivalent and

wholesale acquisition costs of such opioid units that are subject to the

tax imposed by this article, the amount of tax due thereon, and such

further information as the commissioner may require. Such returns shall

be filed for quarterly periods ending on the last day of March, June,

September and December of each year. Each return shall be filed within

twenty days after the end of such quarterly period and shall cover all

opioid sales in the state made in the prior quarter, except that the

first return required to be filed pursuant to this section shall be due

on January twentieth, two thousand twenty, and shall cover all opioid

sales occurring in the period between the effective date of this article

and December thirty-first, two thousand nineteen. Every registrant

required to file a return under this section shall, at the time of

filing such return, pay to the commissioner the total amount of tax due

for the period covered by such return. If a return is not filed when

due, the tax shall be due the day on which the return is required to be

filed. The commissioner may require that the returns and payments

required by this section be filed or paid electronically.

(c) Where a sale of an opioid unit by a registrant has been cancelled

by the purchaser and tax thereon was previously paid by the registrant,

the commissioner shall allow to the registrant a refund or credit of

such tax on a return for a later period subject to the limitations

period for claiming a refund or credit as prescribed by section one

thousand eighty-seven of this chapter. Where a registrant proves that an

opioid unit for which it previously paid a tax has been distributed out

of the state for use or consumption outside this state, the commissioner

shall allow a credit to the registrant for tax paid on a return for a

later period subject to the limitations period for claiming a credit as

prescribed by section one thousand eighty-seven of this chapter.

(d) All sales slips, invoices, receipts, or other statements or

memoranda of sale from any sale or purchase of opioid units by

registrants must be retained for a period of six years after the due

date of the return to which they relate, unless the commissioner

provides for a different retention period by rule or regulation. Such

records must be sufficient to determine the number of units transferred

along with the morphine milligram equivalent of the units transferred,

and otherwise be suitable to determine the correct amount of tax due.

Such records must also record either (1) the address from which the

units are shipped or delivered, along with the address to which the

units are shipped or delivered, or (2) the place at which actual

physical possession of the units is transferred. Such records shall be

produced upon demand by the commissioner.

(e) The provisions of article twenty-seven of this chapter shall apply

to the tax imposed by this article in the same manner and with the same

force and effect as if the language of such article had been

incorporated in full into this article and had expressly referred to the

tax imposed by this article, except to the extent that any provision of

such article twenty-seven is either inconsistent with a provision of

this article or is not relevant to this article.

(f) The commissioners of education and health shall cooperate with the

commissioner in administering this tax, including sharing with the

commissioner pertinent information about registrants upon the request of

the commissioner.

(g) Each registrant shall provide a report to the department of health

detailing all opioids sold by such registrant in the state of New York.

Such report shall include:

(i) the registrant's name, address, phone number, federal Drug

Enforcement Agency (DEA) registration number, education department

registration number, and controlled substance license number issued by

the department of health, if applicable;

(ii) the name, address and DEA registration number of the entity to

whom the opioid was sold;

(iii) the date of the sale of the opioid;

(iv) the gross receipt total, in dollars, for each opioid sold;

(v) the name and National Drug Code of the opioid sold;

(vi) the number of containers and the strength and metric quantity of

controlled substance in each container of the opioid sold;

(vii) the total number of morphine milligram equivalents sold; and

(viii) any other elements as deemed necessary by the commissioner of

health.

Such information shall be reported annually in such form as defined by

the commissioner of health and shall not be subject to the provisions of

section four hundred ninety-nine of this article. With the exception of

the information collected under paragraph (ii) of this subdivision, the

department of health shall make the information collected in such

reports available to the public in machine-readable formats and make it

publicly available on the department of health's website annually.