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(a) The law provides that whenever the Commissioner of Finance shall sell, consign or deliver to any agent authorized to affix stamps to be used in payment of the tax imposed thereby, such agent shall be entitled to receive as compensation for his services and expenses in affixing such stamps and to retain out of the monies to be paid by him for such stamps, a commission on the par value thereof. The Commissioner of Finance is authorized to prescribe a schedule of commissions not exceeding five percentum of the par value of such stamps for affixing such stamps. The Commissioner of Finance hereby prescribes the following commissions to be allowed to each such agent as compensation for his services and expenses in affixing stamps.
(b) Where a joint stamp is issued by the State of New York and the City for the payment of the taxes imposed by the City's Cigarette Tax Law and by Article 20 of the Tax Law of the State, in lieu of a single stamp evidencing payment of the cigarette tax, and such joint stamp is issued by the State of New York and the City of New York for payment of the State tax (at the rate of $1.50 per package of 20 cigarettes) and the City tax (at the rate of $1.50 per package of 20 cigarettes), the following schedule of commissions have been fixed by the Commissioner of Finance pursuant to the City's Cigarette Tax Law with the approval of the New York State Department of Taxation and Finance, and for the purposes of this schedule the par value of a joint stamp issued by the State of New York and the City of New York for payment of the State tax (at the rate of $1.50 per package of 20 cigarettes), and the City tax (at the rate of $1.50 per package of 20 cigarettes) shall be deemed to be $1.50 each for State purposes and $1.50 each for City purposes. On the City par value of such joint stamps, not exceeding $5,611,200 purchased during each calendar year, a commission of 0.2171 percent thereof except as otherwise provided herein; and on the City par value of such joint stamps in excess of $5,611,200 purchased during each calendar year a commission of 0.0992 percent thereof. Said rate of 0.0992 percent shall also apply, even though the total City par value of joint stamps purchased during any calendar year does not exceed $5,611,200, whenever the value of New York State cigarette tax stamps (including the amount of the New York State cigarette tax represented by such joint stamps) purchased by any agent during each calendar year exceeds the sum of $5,611,200, computed at the State par value of $1.50 each. However, for the purpose of determining the point when said amount of $5,611,200 is reached, whenever the quantity of New York State cigarette tax stamps and/or the portion of the New York State cigarette tax included in joint stamps purchased by an agent at any one time brings the agent's total purchases of stamps evidencing payment of the New York State cigarette tax to at least $5,611,200, the amount purchased at such time shall be first applied to the previous total of purchases of stamps evidencing payment of the New York State cigarette tax until $5,611,200 is reached.
(c) Where a single stamp is issued by the City of New York evidencing payment of the City's cigarette tax, and such stamp is for payment of the City's tax at the rate of four cents for each ten cigarettes or fraction thereof, the commission hereby fixed is 1.10 percent on the par value of such single stamp purchased.
(d) Any commissions allowable hereunder shall be deducted by the agent from the purchase price of the stamps at the time payment is made therefor. No commissions shall be allowed on purchases of less than one hundred dollars. No commission shall be allowed to any purchaser of stamps other than an agent.
(a) The law requires that certain records be kept by all dealers of cigarettes.
(1) All wholesale dealers, including agents, must keep records showing every purchase, sale or other disposition of all cigarettes and stamps handled.
(2) All invoices or other records indicating the purchase, sale or other disposition of cigarettes by a wholesale dealer must be either separate and distinct from all other records which a wholesale dealer shall possess or the cigarette transactions on such invoices or other records must be distinct from non-cigarette transactions recorded on the same invoice or other record.
(3) Agents authorized to keep cigarette tax stump affixing machines must keep a daily record of the meter readings, or the serial numbers of the rolls of stumps used, or other information required by the Commissioner of Finance on forms approved by him.
(4) Each agent or wholesale dealer in the City (other than a manufacturer) must, at the time of delivering cigarettes to any person, make a true duplicate serially numbered invoice showing his name, his address, the number of the then current license issued to him pursuant to 19 RCNY § 4-05, the date of delivery, the number of cartons in each shipment of cigarettes delivered, the name and address of the purchaser to whom delivery is made.
(5) Every wholesale dealer shall keep a record of the sales tax certificate number and city cigarette license number of each person to whom he delivers cigarettes. For this purpose, at the time of delivering cigarettes to any person, each wholesale dealer shall, unless previously obtained, request, and every retail dealer or other person to whom cigarettes are delivered shall furnish, his sales tax certificate number and the number of the then current license issued to him pursuant to 19 RCNY § 4-05. The failure or refusal to furnish these numbers shall be reported by the wholesale dealer to the Commissioner of Finance within five days of delivery.
(6) Each dealer in the City shall procure and retain invoices showing the number of cartons in each shipment of cigarettes received by him, the date of delivery, the name and address of the shipper, and the number of the then current license issued to the shipper pursuant to 19 RCNY § 4-05.
(b) The Commissioner of Finance may require any railroad company, express company, trucking company or carrier transporting any shipment of cigarettes into the city to file with the Commissioner of Finance a copy of the freight bill within ten days after delivery in the city of each shipment.
(c) In addition to the foregoing, every agent or dealer (other than a manufacturer) shall keep and maintain records of cigarettes on which a tax must be paid and of those on which a tax is not required to be paid. These records must also show the quantity of cigarettes returned because the cigarettes have become unsalable and any transfers of stamped or unstamped cigarettes to or from other agents. Records must also be maintained of cigarettes which are sold and delivered in the city and those which are sold and delivered to points outside the city, including quantities so sold and the names and addresses of the purchasers. Agents (other than manufacturers) are also required to keep records showing monthly inventories, at the beginning and close of each month, of stamped and unstamped cigarettes, and of the number of stamps.
(d) Each agent, wholesale dealer or other dealer is required to maintain, retain and keep for a period of three years the records mentioned above, as well as such other records as may be required by the Commissioner of Finance from time to time, for the use and inspection of the Commissioner of Finance.
(e) To verify the accuracy of the payment of the tax imposed by the law each dealer is required to give to the Commissioner of Finance or his duly authorized representative, the means, facilities and opportunity to examine the records herein required or for any other reasonable examination.
(a) Agents (other than manufacturers) appointed by the Commissioner of Finance are required to file with him, on forms prescribed and prepared by the Commissioner of Finance, monthly reports showing such information as he may require, including, among other things:
(1) The number of unstamped cigarettes:
(i) on hand at the beginning of the month,
(ii) purchased or received during the month,
(iii) on hand at the end of the month,
(iv) sold or disposed of during the month;
(2) The number of stamps:
(i) on hand at the beginning of the month,
(ii) purchased during the month,
(iii) on hand at the end of the month,
(iv) affixed or otherwise disposed of during the month; and
(3) The number of stamped cigarettes, with New York City stamps and joint New York State-New York City stamps affixed, on hand at the end of the month.
(b) Every agent (other than a manufacturer) is required to take a physical inventory of stamped cigarettes on hand at least twice a year. The results of such an inventory shall be reported on the agent's monthly report in the form and manner prescribed by the Commissioner of Finance. One of the semiannual physical inventories must be as of the end of the fiscal or calendar year of the agent and the other six months later.
(c) Five days prior to the return of cigarettes to a manufacturer, because the cigarettes have become unsalable, damaged, or for any other reason, each agent shall notify the Commissioner of Finance in writing of the number of cartons to be returned and the name of the manufacturer to whom delivery is to be made.
(d) Each manufacturer having an agency permit shall file with the Commissioner of Finance monthly reports showing the total sales of unstamped cigarettes made to agents or wholesale dealers licensed by the City, specifying the name and address of the purchaser, the date of delivery, and the number of cartons in each shipment of cigarettes delivered. These reports shall also specify the quantity of cigarettes returned because the cigarettes have become unsalable, and the name and address of the agent, wholesale dealer or other person making the return.
(e) Fifteen days prior to the distribution of sample cigarettes in the city, each manufacturer shall notify the Commissioner of Finance, in writing, of the amount to be distributed.
(f) Each manufacturer shall file a monthly report of the total number of packages and the number of cigarettes contained therein of sample cigarettes distributed in the city. Payment of the tax due shall be made with the monthly report required herein. If no sample cigarettes are distributed in the city during a month, no report is required for that month.
(g) Wholesale dealers other than agents may also be required to file such reports as the Commissioner of Finance may prescribe, showing the receipts and disposition of all stamped and unstamped cigarettes and any other information which the Commissioner of Finance may require.
(h) Monthly reports shall be filed on or before the 15th day of each month covering the transactions for the preceding calendar month.
(a) The law authorizes the Department of Finance to refund, without interest, any tax, interest or penalty erroneously, illegally or unconstitutionally collected or paid. In addition, a dealer is entitled to a refund of the amount of tax paid less applicable commissions, with respect to any cigarettes upon which stamps have been affixed which:
(1) have been sold and shipped to a dealer outside the city for sale there or to any person in another state for use there, or
(2) have become unfit for use and consumption or unsalable, or
(3) which have been destroyed. An agent is entitled to a refund of the amount of tax paid, less applicable commissions, with respect to any stamps which have become unfit for use, or mutilated or destroyed.
(b) No refund will be granted unless written application to the Commissioner or Finance therefor is made within ninety days from the payment thereof.
(c) No refund, however, will be made unless a verified statement is submitted setting forth the applicant's reasons for such requested refund on a form prescribed by the Department of Finance. If the Department of Finance approves the application for refund, he will issue to such dealer or agent stamps of sufficient value to cover the refund or to make such refund, subject to audit by the Commissioner of Finance.
(d) In the event any agent terminates his business during the effective period of the law for any reason whatsoever and has unused stamps on hand, he must return the same to the Department of Finance who will redeem such stamps at the par value thereof, less any commissions theretofore allowed thereon and less any outstanding liability for such tax by the person presenting said stamps for redemption, provided, however, that in the case of joint stamps used for payment of the state cigarette tax and the city's tax, such surrender and redemption shall be in such manner as may be prescribed by the State Tax Commission and the Commissioner of Finance.
(e) No person shall sell or offer for sale any stamp issued under the law and these regulations except by written permission of the Commissioner of Finance, or as provided in Article 13 hereof.
(a) The law provides that the tax is not applicable to 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.
(b) Under this provision, the only sales by an agent or wholesale dealer of cigarettes which are shipped to a point outside the city which are not subject to the tax, are sales to a dealer outside the city, or shipments to any person outside the state for use there. The sale of cigarettes shipped to a person outside the city, but within the state, for use there is subject to the tax. For example: A sale by an agent or wholesale dealer to another dealer in Westchester County is not subject to the tax. The sale of cigarettes by a dealer who ships them to an ultimate consumer in Westchester County for use there is subject to tax. The sale of cigarettes by a dealer shipped to an ultimate consumer in New Jersey for use there is not subject to the tax.
(c) Where an agent or wholesale dealer sells cigarettes to a dealer for sale outside the City or State, or to another dealer for sale to a dealer outside the City or State, he shall demand and receive from the purchaser, at the time of delivery of the cigarettes, or at the time of sale, a certificate in writing signed by the purchaser, which certificate shall be substantially in the following form: (Date) ________________
"To ____________________________ (name of agent or wholesale dealer). "I hereby certify that the cigarettes purchased by me and described in the attached invoice will be resold outside the city of New York.
___________________________________________
Signature of Purchaser Address of Purchaser"
Signature of Purchaser Address of Purchaser"
One copy of such invoice and the above certificate must be retained by the agent or wholesale dealer for inspection by the Commissioner of Finance representative.
In the case of so-called "drop-shipments," where an out-of-state manufacturer solicits an order directly from a retail dealer in this City, and the billing and payment on account of such sale is made through a wholesale dealer, the sale to the retail dealer is deemed to have been made by the wholesale dealer, and proper stamps must be affixed to the packages of cigarettes prior to delivery to the retail dealer, unless such retail dealer is any agent duly appointed by the Commissioner of Finance.
(a) Whenever a police officer designated in § 1.20 of the criminal procedure law or a peace officer designated in subdivision five of § 2.10 of such law, acting pursuant to his special duties, shall discover any cigarettes subject to the tax, and upon which the tax has not been paid or the stamps not affixed as required, they are hereby authorized and empowered forthwith to seize and take possession of such cigarettes, together with any vending machine or receptacle in which they are held for sale. Such cigarettes, vending machine or receptacle seized by a police officer or such peace officer shall be turned over to the Commissioner of Finance.
(b) The seized cigarettes and any vending machine or receptacle seized therewith, but not the money contained in such vending machine or receptacle shall thereupon be forfeited to the City, unless the person from whom the seizure is made, or the owner of such seized cigarettes, vending machine or receptacle, or any other person having an interest in such property, shall within ten days of such seizure, apply to the Commissioner of Finance for a hearing to determine the propriety of the seizure, or unless the Commissioner of Finance shall on his own motion release the seized cigarettes, vending machine or receptacle. After such hearing the Commissioner of Finance shall give notice of his decision to the petitioner. The decision of the Commissioner shall be reviewable for error, illegality, unconstitutionality or any other reason whatsoever by a proceeding under Article 78 of the Civil Practice Law and Rules if application therefor is made to the supreme court within thirty days after the giving of the notice of such decision. Such proceeding shall not be instituted unless there shall first be filed with the Commissioner of Finance an undertaking, issued by a surety company authorized to transact business in New York State and approved by the Superintendent of Insurance of New York State as to solvency and responsibility, in such amount as a justice of the supreme court shall approve, to the effect that if such proceeding be dismissed, or the seizure confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding.
(c) The Commissioner of Finance may, within a reasonable time after the forfeiture to the city of such cigarettes, vending machines or receptacles, upon publication of a notice to such effect for at least five successive days, in a newspaper published or circulated in the City, sell such forfeited cigarettes and vending machines or receptacles at public sale and pay the proceeds into the treasury of the City. Cigarettes so seized and sold shall be sold only to an agent and the notice of sale shall contain a provision to this effect. Such seized cigarettes, vending machines or receptacles may be sold prior to forfeiture if the owner of the seized property consents to the sale. Notwithstanding any other provision of this section, the Commissioner of Finance may enter into an agreement with the State Tax Commission to provide for the disposition between the City and State of the proceeds from any such sale.
(d) In the alternative, the Commissioner of Finance, on reasonable notice by mail or otherwise may permit the person from whom said cigarettes were seized to redeem the said cigarettes, and any vending machine or receptacle seized therewith, or may permit the owner of any such cigarettes, vending machine or receptacle to redeem the same, by the payment of the tax due, plus a penalty of fifty percent thereof plus interest on the amount of tax due for each month or a fraction thereof, after such tax became due (determined without regard to any extension of time for filing or paying) at the rate prescribed by the law and the regulations of the Commissioner of Finance and the costs incurred in such proceeding, which total payment shall not be less than five dollars; provided, however, that such seizure and sale or redemption shall not be deemed to relieve any person from fine or imprisonment provided for in the law.
(e) In the alternative, if the Commissioner of Finance concludes that any cigarettes seized pursuant to this section, when offered at public sale, will bring a price less than the reasonably estimated price which the Department of Correction would have to pay for the purchase of such cigarettes for sale to or use by inmates in institutions under the jurisdiction of such Department, the Commissioner of Finance may dispose of such cigarettes by transferring them to the Department of Correction for sale to or use by inmates in such institutions.
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