Loading...
(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.
(a) Interest on underpayments. If any amount of tax is not paid on or before the last date prescribed for payment (without regard to any extension of time granted for payment), interest on such amount at the rate prescribed by the law and the regulations of the Commissioner of Finance shall be paid for the period from such last date to the date of payment. In computing the amount of the interest to be paid with respect to the taxes which remain or become due on or after July 1, 1985, such interest shall be compounded daily. No interest shall be paid if the amount thereof is less than one dollar.
(b) Civil penalties. Penalties are provided for violations of the law and of the rules and regulations of the Commissioner of Finance. These penalties are in addition to the possible suspension or revocation of the license of a wholesale or retail dealer or the authority of an agent. The following civil penalties are provided for by law (§ 11-1317 of the Administrative Code of the City of New York):
(1) For failure to pay the tax under the law when due – a penalty of 50 percent of the amount of tax due. The Commissioner of Finance may, however, if satisfied that the delay was excusable, remit all or any part of such penalty.
(2) In addition to any other penalty imposed by § 11-1317 of the Administrative Code of the City of New York, as amended, the Commissioner of Finance may impose a penalty of not more than $100 for each two hundred cigarettes or fraction thereof in excess of two thousand cigarettes in unstamped or unlawfully stamped packages in the possession or under the control of any person. The Commissioner of Finance, in his discretion, may remit all or part of such penalty.
(3) The possession within the City of more than four hundred cigarettes in unstamped or unlawfully stamped packages shall be presumptive evidence that such cigarettes are subject to tax as provided by the law. Nothing in this subdivision shall apply to common or contract carriers or warehousemen while engaged in lawfully transporting or storing unstamped packages of cigarettes as merchandise, nor to any employee of such carrier or warehouseman acting within the scope of his employment, nor to public officers or employees in the performance of their official duties requiring possession or control of unstamped or unlawfully stamped packages of cigarettes, nor to temporary incidental possession by employees or agents or persons lawfully entitled to possession, nor to persons whose possession is for the purpose of aiding police officers in performing their duties.
(4) The penalties provided by this subdivision shall be paid and enforced in the same manner as taxes.
(5) Application for the remission of penalty may be made to the Commissioner of Finance. Such application must be made by the person against whom the penalty is assessed and must set forth the grounds upon which the remission is requested.
(c) Criminal penalties.
(1) Failure to obey subpoena; false testimony.
(i) Any person who, being duly subpoenaed in connection with a matter arising under the law, to attend as a witness or to produce books, accounts, records, memoranda, documents or other papers,
(A) fails or refuses to attend without lawful excuse, or
(B) refuses to be sworn,
(C) refuses to answer any material and proper question, or
(D) refuses, after reasonable notice, to produce books, papers and documents in his possession or under his control which constitute material and proper evidence shall be guilty of a misdemeanor.
(ii) Any person who shall testify falsely in any material matter pending before the Commissioner of Finance shall be guilty of and punishable for perjury.
(2) Willful failure to file a return or report or pay tax. Any person required to pay any tax or make any return or report, who willfully fails to pay such tax or make such return or report, at the time or times so required, shall be guilty of a misdemeanor.
(3) Fraudulent returns, reports, statements or other documents.
(i) Any person who willfully makes and subscribes any return, report, statement or other document which is required to be filed with or furnished to the Commissioner of Finance or to any person, pursuant to the provisions of the law, which he does not believe to be true and correct as to every material matter shall be guilty of a misdemeanor.
(ii) Any person who willfully delivers or discloses to the Commissioner of Finance or to any person, pursuant to the provisions of the law, any list, return, report, account, statement or other document known by him to be fraudulent or to be false as to any material matter shall be guilty of a misdemeanor.
(iii) For purposes of this paragraph, the omission by any person of any material matter with intent to deceive shall constitute the delivery or disclosure of a document known by him to be fraudulent or to be false as to any material matter.
(4) Failure to file bond. Any person willfully failing to file a bond where such filing is required by the law shall be guilty of a misdemeanor.
(5) Attempt to evade or defeat tax.
(i) Any person who willfully attempts in any manner to evade or defeat any tax imposed by law or the payment thereof shall, in addition to other penalties provided by law, be guilty of a misdemeanor.
(ii) Any person who willfully attempts in any manner to evade or defeat any tax imposed by law or payment thereof on twenty thousand cigarettes or more or has previously been convicted two or more times of a violation of subparagraph (i) of this paragraph shall be guilty of a Class E felony.
(6) Any person, other than an agent so authorized by the Commissioner of Finance, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax under the law, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of the law shall be guilty of a misdemeanor.
(7) Any person, other than an agent so authorized by the Commissioner of Finance, who willfully possesses or transports for the purpose of sale twenty thousand or more cigarettes subject to the tax imposed by law in any unstamped or unlawfully stamped packages or who willfully sells or offers for sale twenty thousand or more cigarettes in any unstamped or unlawfully stamped packages in violation of the law shall be guilty of a Class E felony.
(8) For the purposes of this subdivision, the possession or transportation within this City by any person, other than an agent, at any one time of five thousand or more cigarettes in unstamped or unlawfully stamped packages shall be presumptive evidence that such cigarettes are possessed or transported for the purpose of sale and are subject to the tax imposed by law. With respect to such possession or transportation, any provisions of law providing for a time period during which a use tax imposed by the law may be paid on unstamped cigarettes or unlawfully or improperly stamped cigarettes or during which such cigarettes may be returned to an agent shall not apply. The possession within this City of more than four hundred cigarettes in unstamped or unlawfully stamped packages by any person other than an agent at any one time shall be presumptive evidence that such cigarettes are subject to tax as provided by law.
(9) Nothing in this subdivision shall apply to common or contract carriers or warehousemen while engaged in lawfully transporting or storing unstamped packages of cigarettes as merchandise, nor to any employee of such carrier or warehouseman acting within the scope of his employment, nor to public officers or employees in the performance of their official duties requiring possession or control of unstamped or unlawfully stamped packages of cigarettes, nor to temporary incidental possession by employees or agents of persons lawfully entitled to possession, nor to persons whose possession is for the purpose of aiding police officers in performing their duties.
(10) Any person who falsely or fraudulently makes, alters or counterfeits any stamp prescribed by the Commissioner of Finance under the law, or causes or procures to be falsely or fraudulently made, altered or counterfeited any such stamp, or knowingly and willfully utters, purchases, passes or tenders as true any such false, altered or counterfeited stamp, or knowingly and willfully possesses any cigarettes in packages bearing any such false, altered or counterfeited stamp, and any person who knowingly and willfully makes, causes to be made, purchases or receives any device for forging or counterfeiting any stamp, prescribed by the Commissioner of Finance under the provisions of the law, or who knowingly and willfully possesses any such device, shall be guilty of a Class E felony. For the purposes of this paragraph, the words "stamp prescribed by the Commissioner of Finance" shall include a stamp, impression or imprint made by a metering machine, the design of which has been approved by the Commissioner of Finance and the State Tax Commission.
(11) Any willful act or omission, other than those described in paragraphs (5) through (10) of this subdivision, by any person which constitutes a violation of any provision of law shall constitute a misdemeanor.