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.