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When used in this chapter the following words shall have the meanings herein indicated:
1. "Cigarette." Any roll for smoking made wholly or in part of tobacco or any other substance, irrespective of size or shape and whether or not such tobacco or substance is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material but is not made in whole or in part of tobacco. "Cigarette" shall not include a research tobacco product.
2. "Person." Any individual, partnership, society, association, joint-stock company, corporation, estate, receiver, trustee, assignee, referee or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of individuals.
3. "Sale or purchase." Any transfer of title or possession or both, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever or any agreement therefor.
4. "Use." Any exercise of a right or power, actual or constructive, and shall include but is not limited to the receipt, storage, or any keeping or retention for any length of time, but shall not include possession for sale by a dealer.
5. "Dealer." Any wholesale dealer or retail dealer as hereinafter defined.
6. "Wholesale dealer." Any person who sells cigarettes or tobacco products to retail dealers or other persons for purposes of resale only, and any person who owns, operates or maintains one or more cigarette vending machines in, at or upon premises owned or occupied by any other person.
7. "Retail dealer." Any person, other than a wholesale dealer, engaged in selling cigarettes or tobacco products. For the purposes of this chapter, the possession or transportation at any one time of more than four hundred cigarettes or little cigars, or more than fifty cigars, or more than one pound of loose tobacco, smokeless tobacco, snus or shisha, or any combination thereof, by any person other than a manufacturer, an agent, a licensed wholesale dealer or a person delivering cigarettes or tobacco products in the regular course of business for a manufacturer, an agent or a licensed wholesale or retail dealer, shall be presumptive evidence that such person is a retail dealer.
8. "Package." The individual package, box or other container in or from which retail sales of cigarettes or tobacco products are normally made or intended to be made.
9. "Agent." Any person authorized to purchase and affix adhesive or meter stamps under this chapter who is designated as an agent by the commissioner of finance.
10. "Comptroller." The comptroller of the city.
11. "Commissioner of finance." The commissioner of finance of the city.
12. "City." The city of New York.
13. "Tax appeals tribunal." The tax appeals tribunal established by section 168 of the charter.
14. "Cigar." Any roll of tobacco for smoking that is wrapped in leaf tobacco or in any substance containing tobacco, with or without a tip or mouthpiece. Cigar does not include a little cigar as defined in this section.
15. "Little cigar." Any roll of tobacco for smoking that is wrapped in leaf tobacco or in any substance containing tobacco and that weighs no more than four pounds per thousand or has a cellulose acetate or other integrated filter.
16. "Loose tobacco." Any product that consists of loose leaves or pieces of tobacco that is intended for use by consumers in a pipe, roll-your-own cigarette, or similar product or device.
17. "Smokeless tobacco." Any tobacco product that consists of cut, ground, powdered, or leaf tobacco and that is intended to be placed in the oral or nasal cavity.
18. "Snus." Any smokeless tobacco product marketed and sold as snus, and sold in ready-to-use pouches or loose as a moist powder.
19. "Tobacco product." Any product which contains tobacco that is intended for human consumption, including any component, part, or accessory of such product. Tobacco product shall include, but not be limited to, any cigar, little cigar, chewing tobacco, pipe tobacco, roll-your-own tobacco, snus, bidi, snuff, shisha, or dissolvable tobacco product. Tobacco product shall not include cigarettes or any product that has been approved by the United States food and drug administration for sale as a tobacco use cessation product or for other medical purposes and that is being marketed and sold solely for such purposes. "Tobacco products" shall not include research tobacco products.
20. "Shisha." Any product that contains tobacco and is smoked or intended to be smoked in a hookah or water pipe.
21. "Research tobacco product." A tobacco product or cigarette that is labeled as a research tobacco product, is manufactured for use in research for health, scientific, or similar experimental purposes, is exclusively used for such purposes by an accredited college, university or hospital, or a researcher affiliated with an accredited college, university or hospital, and is not offered for sale or sold to consumers for any purpose.
(Am. L.L. 2017/145, 8/28/2017, eff. 6/1/2018; Am. 2020 N.Y. Laws Ch. 55, 4/3/2020, eff. 12/20/2019)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2013/097 and L.L. 2017/145.
a. There is hereby imposed and shall be paid a tax on:
1. All cigarettes possessed in the city for sale except as hereinafter provided;
2. The use of all cigarettes in the city except as hereinafter provided;
3. It is intended that the ultimate incidence of and liability for the tax shall be upon the consumer, and that any agent, distributor or dealer who shall pay the tax to the director of finance shall collect the tax from the purchaser or consumer. Such tax shall be at the basic rate of two cents for each ten cigarettes or fraction thereof and shall be imposed only once on the same package of cigarettes. In addition to such tax there is hereby 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.
b. The tax imposed hereunder shall not apply to:
1. The use, otherwise than for sale, of four hundred cigarettes or less brought into the city, on or in possession of, any person;
2. Cigarettes sold to the United States;
3. 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;
4. Cigarettes possessed in the city by any agent or wholesale dealer for sale to a dealer outside the city or for sale and shipment to any person in another state for use there, provided such agent or wholesale dealer complies with the regulations relating thereto.
c. The tax imposed hereunder shall be in addition to any and all other taxes.
d. It shall be presumed that all sales or uses mentioned in this section are subject to tax until the contrary is established, and the burden of proof that a sale or use is not taxable hereunder shall be upon the vendor or the purchaser.
e. Except as hereinafter provided, the tax shall be advanced and paid by the agent or distributor. The agent shall be liable for the collection and payment of the tax to the commissioner of finance by purchasing from the commissioner of finance adhesive stamps of such design and denomination as may be prescribed by such commissioner, subject to the approval of the state tax commission. The tax may also be paid by the use of such metering machines as are prescribed by the commissioner of finance subject to the approval of the state tax commission.
f. Within twenty-four hours after liability for the tax on the use of cigarettes accrues each person liable for the tax shall file with the commissioner of finance a return in such form as the commissioner of finance may prescribe, together with a remittance of the tax shown to be due thereon.
g. Agents located within or without the city shall purchase stamps and affix them in the manner prescribed to packages of cigarettes to be sold within the city.
h. The amount of taxes advanced and paid by the agent or distributor as hereinabove provided shall be added to and collected as part of the sales price of the cigarettes.
i. The commissioner of finance, notwithstanding any other provision of this chapter, may, subject to the approval of the state tax commission, provide by regulation that the tax imposed by this section shall be collected without the use of stamps.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2002/010.
a. In accordance with section 110 of the public housing law, an excise tax on the sale of tobacco products is hereby imposed and shall be paid on all tobacco products possessed in the city for sale, except as hereinafter provided. It is intended that the ultimate incidence of and liability for the tax shall be upon the consumer. Any dealer or distributor who pays the tax to the commissioner of finance shall collect the tax from the purchaser or consumer. Such tax shall be at the rate of ten percent of the price floor for a package of the specified category of tobacco product, exclusive of sales tax, set forth in the following table, which shall be consistent with the price floors described in subdivision d of section 17-176.1:
Tobacco Product | Price floor (excluding OTP and sales taxes) | Amount of OTP tax (excluding sales tax) |
Cigar | $8.00 per cigar sold individually; for a package, number of cigars multiplied by $1.75 plus $6.25 | $0.80 per cigar; for a package, $0.80 for first cigar, plus $0.175 for each additional cigar |
Little cigar | $10.95 per pack of 20 little cigars | $1.09 per pack |
Smokeless tobacco | $8.00 per 1.2 oz. package plus $2.00 for each additional 0.3 oz. or any fraction thereof in excess of 1.2 oz. | $0.80 per 1.2 oz. plus an additional $0.20 for each 0.3 oz. or any fraction thereof in excess of 1.2 oz. |
Snus | $8.00 per 0.32 oz. package plus $2.00 for each additional 0.08 oz. or any fraction thereof in excess of 0.32 oz. | $0.80 per 0.32 oz. plus an additional $0.20 for each 0.08 oz. or any fraction thereof in excess of 0.32 oz. |
Shisha | $17.00 per 3.5 oz. package plus $3.40 for each additional 0.7 oz or any fraction thereof in excess of 3.5 oz. | $1.70 per 3.5 oz. plus an additional $0.34 for each 0.7 oz, or any fraction thereof in excess of 3.5 oz. |
Loose tobacco | $2.55 per 1.5 oz. package plus $0.51 for each additional 0.3 oz. or any fraction thereof in excess of 1.5 oz. | $0.25 per 1.5 oz. package plus an additional $0.05 for each 0.3 oz. or any fraction thereof in excess of 1.5 oz. |
b. The tax imposed hereunder shall not apply to:
1. The state of New York, or any public corporation (including a public corporation created pursuant to agreement or compact with another state or the Dominion of Canada), improvement district or other political subdivision of the state where it is the purchaser, user or consumer;
2. The United States of America, in so far as it is immune from taxation;
3. The United Nations or other world-wide international organizations of which the United States of America is a member;
4. Any corporation, or association, or trust, or community chest, fund or foundation, organized and operated exclusively for religious, charitable, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; provided, however, that nothing in this paragraph shall include an organization operated for the primary purpose of carrying on a trade or business for profit, whether or not all of its profits are payable to one or more organizations described in this paragraph; and
5. Tobacco products possessed in the city by any dealer for sale outside the city or for sale and shipment to any person in another state for use there, provided such dealer complies with the regulations relating thereto.
c. Nothing in subdivision b shall exempt sales by any shop or store operated by any college, university or other public or private institution for higher education from the taxes described in this section.
d. The tax imposed hereunder shall be in addition to any and all other taxes.
e. It shall be presumed that all sales mentioned in this section are subject to tax until the contrary is established, and the burden of proof that a sale is not taxable hereunder shall be upon the dealer or the purchaser.
f. 1. Except as hereinafter provided, the tax shall be advanced and paid by the wholesale dealer. The wholesale dealer shall be liable for the collection and payment of the tax to the commissioner of finance as required under subdivision g of this section. The commissioner may require the wholesale dealer to keep tobacco products for which the tax has not yet been paid separately from tobacco products for which the tax has been paid. For purposes of this chapter, retention by the wholesale dealer of any tobacco products beyond the time prescribed for payment under this section, without having made the requisite payment, or storing any such products in violation of any separation requirements prescribed by the commissioner, shall be presumptive evidence that such tobacco products are possessed in violation of the provisions of this chapter.
2. Every retail dealer shall be liable for the tax on all tobacco products in his or her possession at any time, upon which tax has not been paid, and the failure of any retail dealer to produce and exhibit to the commissioner of finance or such commissioner's duly authorized representatives upon demand, an invoice by a licensed wholesale dealer for any tobacco products in his or her possession, shall be presumptive evidence the tax thereon has not been paid, that such retail dealer is liable for the tax thereon, and the tobacco products are possessed in violation of this chapter, unless evidence of such invoice or payment shall later be produced.
g. 1. Each wholesale dealer shall file with the commissioner of finance a return, on a form required by such commissioner, indicating the amount of tax due pursuant to this section and any other information the commissioner may require, on a monthly basis, or on such other regular interval as such commissioner may prescribe. Each wholesale dealer shall file the return on the twentieth day of the month following the end of the month or other interval covered by the return, unless the commissioner of finance prescribes a greater number of days following the end of the month or a different reporting interval. Each wholesale dealer shall pay the amount of tax due upon filing the return unless the commissioner prescribes a different date or time for such payment.
2. The commissioner of finance may:
(A) Authorize another person, including a distributor as defined in subdivision 12 of section 470 of the tax law, who is not a wholesale dealer, to advance and pay the tax imposed under this section;
(B) Exempt wholesale dealers from the requirements of this subdivision, upon such conditions as may be imposed by such commissioner, if he or she is satisfied the tax on the tobacco products has been or is being advanced and paid by another wholesale dealer or a distributor authorized under this subdivision.
h. The amount of taxes advanced and paid by the wholesale dealer pursuant to this section shall be added to and collected as part of the sales price of the tobacco products.
(L.L. 2017/145, 8/28/2017, eff. 6/1/2018)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2017/145.
a. License required of wholesale and retail dealers.
1. It shall be unlawful for a person to engage in business as a wholesale or retail dealer without a license as prescribed in this section or subchapter one of chapter two of title twenty of the code, whichever is applicable.
2. It shall be unlawful for a person to permit any premises under such person's control to be used by any other person in violation of paragraph one of subdivision a of this section.
b. Application for license.
1. Wholesale tobacco license. In order to obtain a license to engage in business as a wholesale dealer, a person shall file application with the commissioner of finance for one license for each place of business that he or she desires to have for the sale of cigarettes or tobacco products in the city. Every application for a wholesale tobacco license shall be made upon a form prescribed and prepared by the commissioner of finance and shall set forth such information as the commissioner shall require. The commissioner of finance may, for cause, refuse to issue a wholesale tobacco license. Upon approval of the application, the commissioner of finance shall grant and issue to the applicant a wholesale tobacco license for each place of business within the city set forth in the application. Wholesale tobacco licenses shall not be assignable and shall be valid only for the persons in whose names such licenses have been issued and for the transaction of business in the places designated therein and shall at all times be conspicuously displayed at the places for which issued.
2. Retail tobacco license. In order to obtain a license to engage in business as a retail dealer, a person shall file an application with the commissioner of consumer and worker protection in accordance with the provisions of section 20-202.
c. Duplicate licenses. Whenever any license issued by the commissioner of finance under the provisions of this section is defaced, destroyed or lost, the commissioner of finance shall issue a duplicate license to the holder of the defaced, destroyed or lost license upon the payment of a fee of fifteen dollars. A duplicate retail dealer license may be obtained from the commissioner of consumer and worker protection as provided in section 20-204 of this code.
d. Suspension or revocation of licenses.
1. After a hearing, the commissioner of finance may suspend or revoke a wholesale tobacco license and the commissioner of consumer and worker protection, upon notice from the commissioner of finance, may suspend or revoke a retail tobacco license whenever the commissioner of finance finds that the holder thereof has failed to comply with any of the provisions of this chapter or any rules of the commissioner of finance prescribed, adopted and promulgated under this chapter.
2. The commissioner of finance may also suspend or revoke a wholesale tobacco license in accordance with the requirements of any other sections of this code or any rules promulgated thereunder which authorizes the suspension or revocation of a wholesale tobacco license.
3. The commissioner of consumer and worker protection may also suspend or revoke a retail tobacco license in accordance with the requirements of any other section of this code or any rules promulgated thereunder that authorize suspension or revocation of a retail tobacco license.
4. Upon suspending or revoking any wholesale tobacco license, the commissioner of finance shall direct the holder thereof to surrender to the commissioner of finance immediately all wholesale tobacco licenses or duplicates thereof issued to such holder and the holder shall surrender promptly all such licenses to the commissioner of finance as directed. Before the commissioner of finance suspends or revokes a wholesale tobacco license or notifies the commissioner of consumer and worker protection of a finding of a violation of this chapter with respect to a retail tobacco license pursuant to paragraph (1) of this subdivision, the commissioner of finance shall notify the holder and the holder shall be entitled to a hearing, if desired, if the holder, within ninety days from the date of such notification, or if the commissioner of finance has established a conciliation procedure pursuant to section 11-124 and the taxpayer has requested a conciliation conference in accordance therewith within ninety days from the mailing of a conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding, both (A) serves a petition upon the commissioner of finance and (B) files a petition with the tax appeals tribunal for a hearing. After such hearing, the commissioner of finance, good cause appearing therefor, may suspend or revoke the wholesale tobacco license, and, in the case of a retail tobacco license, notify the commissioner of consumer and worker protection of a violation of this chapter or any rules promulgated thereunder. Upon such notification, the commissioner of consumer and worker protection may suspend or revoke a retail tobacco license as provided in subdivision b of section 20-206. The commissioner of finance may, by rule, provide for granting a similar hearing to an applicant who has been refused a wholesale tobacco license by the commissioner of finance.
e. Prohibited sales and purchases. No agent or dealer shall sell cigarettes or tobacco products to an unlicensed wholesale or retail dealer, or to a wholesale or retail dealer whose license has been suspended or revoked. No dealer shall purchase cigarettes or tobacco products from any person other than a manufacturer or a licensed wholesale dealer.
f. Retail dealers. The commissioner of finance may, after hearing, issue an order prohibiting a retail dealer from selling cigarettes, for such period as the order shall specify, for failure to comply with any of the provisions of this chapter or any rules or regulations of the commissioner of finance prescribed, adopted and promulgated under this chapter.
g. License fees; numbering and registering of licenses; term.
1. The annual fee for a wholesale dealer's license shall be six hundred dollars, and the annual fee for a retail dealer's license shall be as provided in subdivision c of section 20-202.
2. Wholesale tobacco licenses shall be regularly numbered and duly registered.
3. Wholesale tobacco licenses shall expire on January thirty-first next succeeding the date of issuance unless sooner suspended or revoked.
(Am. L.L. 2017/145, 8/28/2017, eff. 6/1/2018; Am. L.L. 2020/080, 8/28/2020, eff. 8/28/2020)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1987/034, L.L. 1991/052, L.L. 1992/083, L.L. 1998/003, L.L. 2000/002, L.L. 2017/145 and L.L. 2020/080.
a. The commissioner of finance shall, subject to the approval of the state tax commission, prescribe, prepare and furnish stamps of such denominations and quantities as may be necessary for the payment of the tax imposed by this chapter, and may, from time to time, provide for the issuance and exclusive use of stamps of a new design and forbid the use of stamps of any other design. Such stamps shall be in the form of a single stamp for the payment of the tax imposed by this chapter or, in lieu thereof, a joint single stamp to be prepared and issued by the state of New York and the city for the payment of the tax imposed by this chapter and the taxes imposed by article twenty of the tax law. The commissioner of finance may make such arrangements with the state tax commission for the method of acquiring and the manner of sharing the costs of such joint single stamps as he or she deems appropriate. The commissioner of finance, subject to the approval of the state tax commission, shall make provisions for the sale of such stamps at such places as he or she may deem necessary, and may appoint fiscal agents for such purpose.
b. The commissioner of finance may appoint wholesale dealers of cigarettes and any other person within or without the city as agents to affix stamps to be used in paying the tax hereby imposed, but an agent shall at all times have the right to appoint the person in his or her employ who is to affix the stamps to any cigarettes under the agent's control. Whenever the commissioner of finance shall sell, consign or deliver to any such agent any such stamps, such agent shall be entitled to receive as compensation for his or her services and expenses in affixing such stamps, and to retain out of the moneys to be paid by the agent for such stamps, a commission on the par value thereof. The commissioner of finance is hereby authorized to prescribe a schedule of commissions not exceeding five per centum, allowable to such agent for affixing such stamps; provided, however, that the commissioner of finance may authorize commissions to agents and temporary agents not exceeding ten per centum for a special period not exceeding fifteen days immediately following the enactment of this chapter to cover the initial stamping of packages of cigarettes. Such schedule shall be uniform for each type and denomination of stamp used, and may be on a graduated scale with respect to the number of stamps purchased. In the event that a joint stamp is issued, the commissions allowed shall be determined jointly by the state tax commission and the commissioner of finance and shall be based on the full par value of such stamp. The extent to which the city and the state of New York shall bear the expense of such commissions shall be determined by agreement between the state tax commission and the commissioner of finance. The commissioner of finance may in his or her discretion permit an agent to pay for such stamps within thirty days after the date of sale, consignment or delivery of such stamps to such agents, and may require any such agent to file with the commissioner of finance a bond, issued by a surety company approved by the superintendent of insurance as to solvency and responsibility and authorized to transact business in the state, in such amounts as the commissioner of finance may fix, to secure the payment of any sums from such agent pursuant to this chapter.
c. The commissioner of finance may redeem unused stamps lawfully in the possession of any person. No person shall sell or offer for sale any stamp issued under this chapter, except by written permission of the commissioner of finance. The commissioner of finance may prescribe rules and regulations concerning refunds, sales of stamps and redemptions under the provisions of this chapter.
d. (1) Except as provided in this subdivision, it shall be unlawful for any person to sell, offer for sale, possess or transport any affixed or unaffixed false, altered or counterfeit cigarette tax stamps, imprints or impressions.
(2) Paragraph one of this subdivision shall not apply to:
(A) a person, other than a retail dealer, in possession of twenty or fewer affixed tax stamps;
(B) public officers or employees in the performance of their official duties requiring possession or control of affixed or unaffixed false, altered or counterfeit cigarette tax stamps, imprints or impressions; or
(C) any person authorized by the commissioner of finance or the commissioner of the department of taxation and finance of the state of New York to perform law enforcement functions.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2013/097.
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