S T A T E O F N E W Y O R K
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1027--A
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. HOOPER, MAYERSOHN -- read once and referred to
the Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT authorizing the counties of Nassau, Orange, Putnam, Rockland,
Suffolk, Westchester, Dutchess and Rensselaer to adopt and amend local
laws, imposing certain specified types of taxes on cigarettes which
the legislature has or would have power and authority to impose, to
provide for the review of such taxes, to limit the application of such
local laws; and to amend the tax law, in relation to the imposition of
such tax by such counties
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Notwithstanding any other provision of law to the contrary,
the counties of Nassau, Orange, Putnam, Rockland, Suffolk, Westchester,
Dutchess and Rensselaer, each acting through its local legislative body,
are hereby authorized and empowered to adopt and amend local laws impos-
ing in such counties taxes on cigarettes, cigars or smoking tobacco such
as the legislature has or would have power and authority to impose.
Such taxes may be collected and administered by the fiscal officers of
such counties by such means and in such manner as may be provided by
such local laws. The taxes may be imposed on the use, sale, exchange,
transfer, storage, withdrawal, possession or retention of cigarettes,
cigars or smoking tobacco, provided, however, that nothing in this act
shall authorize the imposition of a tax on the use, possession or
retention (otherwise than for sale) of two hundred cigarettes or less,
of fifty cigars or less or of two pounds of smoking tobacco or less
brought into the county on, or in possession of, any person.
a. The rate of such tax on cigarettes shall be two dollars for each
ten cigarettes or fraction thereof, provided, however, that if a package
of cigarettes contains more than twenty cigarettes, the rate of tax on
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01653-02-9
A. 1027--A 2
the cigarettes in such package in excess of twenty shall be one dollar
for each five cigarettes or fraction thereof. Such tax is intended to be
imposed only once on the same package of cigarettes.
b. The rate of such tax on cigars shall be two cents on each cigar
sold at a price of not less than fourteen cents and not more than thirty
cents; two cents on each cigar sold at a price of not less than thirty-
two cents and not more than fifty-eight cents; and six cents on each
cigar sold at a price of sixty cents or more. Where more than one cigar
is sold, whether or not in a package, box or container, such tax shall
be applied to each cigar on the basis of the price applicable to each
cigar. The tax shall not be applicable to cigars sold at a price less
than fourteen cents a cigar.
c. The rate of such tax on smoking tobacco shall be two cents for each
forty cents or fraction thereof of the price at which such smoking
tobacco is sold.
S 2. As used in this act, the term "cigarette" shall mean and include
any roll for smoking made wholly or in part of tobacco or of any other
substance, irrespective of size or shape and whether or not such tobacco
or substance is flavored, adulterated or mixed with any other ingredi-
ent, the wrapper or cover of which is made of paper or any other
substance or material except tobacco.
S 3. A tax imposed pursuant to this act shall have application only
within the territorial limits of any such counties and shall be in addi-
tion to any and all other taxes. The method of collecting any tax
imposed pursuant to this act, either with or without adhesive or meter
stamps, shall be subject to the approval of the state department of
taxation and finance.
S 4. Any tax imposed pursuant to this act shall be refunded whenever
any cigarettes upon which the tax has been paid have been sold and
shipped into another state for sale or use there.
S 5. No tax imposed pursuant to this act shall apply to the sale of
cigarettes under such circumstances that this state is without power to
impose such tax or to cigarettes sold to the United States or to ciga-
rettes 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.
S 6. Any final determination of the amount of any tax payable pursuant
to this act shall be reviewable for error, illegality or unconstitution-
ality or any other reason whatsoever by a proceeding under article 78 of
the civil practice law and rules if application therefore is made to the
supreme court within four months after the giving of the notice of such
final determination, provided, however, that any such proceeding under
article 78 of the civil practice law and rules shall not be instituted
by a person liable for the tax unless the amount of any tax sought to be
reviewed, with such interest and penalties thereon as may be provided
for by local law or regulation, shall be first deposited and an under-
taking filed, in such amount and with such sureties as a justice of the
supreme court shall approve to the effect that if such proceeding be
dismissed or the tax confirmed such person will pay all costs and charg-
es which may accrue in the prosecution of such proceeding.
S 7. Where any tax imposed pursuant to this act shall have been erro-
neously, illegally or unconstitutionally collected and application for
the refund thereof duly made to the proper fiscal officer or officers,
and such officer or officers or, in the case of a county which has
established a tax appeals tribunal, such tax appeals tribunal, shall
A. 1027--A 3
have made a determination denying such refund, such determination shall
be reviewable by a proceeding under article 78 of the civil practice law
and rules, provided, however, that such proceeding is instituted within
four months after the giving of the notice of such denial, that a final
determination of tax due was not previously made, and that an undertak-
ing is filed with the proper fiscal officer or officers in such amount
and with such sureties as a justice of the supreme court shall approve
to the effect that if such proceeding be dismissed or the tax confirmed,
the person liable for the tax will pay all costs and charges which may
accrue in the prosecution of such proceeding.
S 8. Except in the case of a willfully false or fraudulent return with
intent to evade the tax, no assessment of additional tax shall be made
with respect to taxes imposed pursuant to this act after the expiration
of more than three years from the date of the filing of a return,
provided, however, that where no return has been filed as provided by
law the tax may be assessed at any time.
S 9. Revenues resulting from the imposition of taxes authorized by
this act shall be paid to the department of taxation and finance and
thereafter, the commissioner of taxation and finance shall certify the
local share to the state comptroller for distribution to the counties,
fifty-four percent of such revenues (including taxes, interest and
penalties) collected or received shall be distributed by the state comp-
troller to such counties. The state comptroller is hereby authorized and
directed to transfer all such amounts so paid to the credit of the
tobacco control and insurance initiatives pool to be distributed by the
commissioner of health in accordance with section 2807-v of the public
health law.
S 10. Subdivision 13 of section 470 of the tax law, as added by chap-
ter 629 of the laws of 1996, is amended to read as follows:
13. "Unstamped or unlawfully stamped packages of cigarettes." A pack-
age of cigarettes which bears no tax stamp, or which bears a tax stamp
of another state or taxing jurisdiction is considered to be an unstamped
package of cigarettes. A package of cigarettes bearing a counterfeit New
York state or a counterfeit joint state and [New York city] MUNICIPAL
tax stamp is an unlawfully stamped package of cigarettes.
S 11. Subdivision (h) of section 1111 of the tax law, as amended by
section 1 of part Q3 of chapter 62 of the laws of 2003, is amended to
read as follows:
(h) Receipts subject to tax under subdivision (a) of section eleven
hundred five on retail sales of cigarettes and tobacco products and
consideration given or contracted to be given for cigarettes and tobacco
products the uses of which are subject to tax under section eleven
hundred ten shall be deemed to include any tax imposed on cigarettes and
tobacco products by article twenty of this chapter and any tax imposed
on cigarettes by chapter thirteen of title eleven of the administrative
code of the city of New York OR ANY LOCAL LAW ENACTED BY A LEGISLATURE
OF THE COUNTIES OF NASSAU, ORANGE, PUTNAM, ROCKLAND, SUFFOLK, WESTCHES-
TER, DUTCHESS OR RENSSELAER.
S 12. Subdivision (a) of section 1846 of the tax law, as amended by
section 2 of part E of chapter 93 of the laws of 2002, is amended to
read as follows:
(a) Whenever a police officer designated in section 1.20 of the crimi-
nal procedure law or a peace officer designated in subdivision four of
section 2.10 of such law, acting pursuant to his or her special duties,
shall discover any cigarettes subject to tax provided by article twenty
of this chapter or by chapter thirteen of title eleven of the adminis-
A. 1027--A 4
trative code of the city of New York OR ANY LOCAL LAW ENACTED BY A
LEGISLATURE OF THE COUNTIES OF NASSAU, ORANGE, PUTNAM, ROCKLAND,
SUFFOLK, WESTCHESTER, DUTCHESS OR RENSSELAER, and upon which the tax has
not been paid or the stamps not affixed as required by such article
[or], such chapter thirteen, OR SUCH LOCAL LAW, they are hereby author-
ized and empowered forthwith to seize and take possession of such ciga-
rettes, 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. Such seized cigarettes, vending machine or receptacle, not
including money contained in such vending machine or receptacle, shall
be forfeited to the state. The commissioner may, within a reasonable
time thereafter, upon publication of a notice to such effect for at
least five successive days, before the day of sale, in a newspaper
published or circulated in the county where the seizure was made, sell
such forfeited cigarettes and vending machines or receptacles at public
sale and pay the proceeds into the state treasury to the credit of the
general fund. Cigarettes so seized and sold shall be sold only to an
agent under article twenty of this chapter and the notice of sale shall
contain a provision to this effect. Notwithstanding any other provision
of this section, the commissioner may enter into an agreement with any
city of this state which is authorized to impose a tax similar to that
imposed by article twenty of this chapter to provide for the disposition
between the state and any such city of the proceeds from any such sale.
S 13. Subdivision (a) of section 1847 of the tax law, as amended by
section 3 of part E of chapter 93 of the laws of 2002, is amended to
read as follows:
(a) Any peace officer designated in subdivision four or five of
section 2.10 of the criminal procedure law, acting pursuant to his or
her special duties, or any police officer designated in section 1.20 of
the criminal procedure law may seize any vehicle or other means of
transportation used to transport or for the deposit or concealment of
more than one hundred unstamped or unlawfully stamped packages of ciga-
rettes subject to tax under article twenty of this chapter or by chapter
thirteen of title eleven of the administrative code of the city of New
York OR ANY LOCAL LAW ENACTED BY A LEGISLATURE OF THE COUNTIES OF
NASSAU, ORANGE, PUTNAM, ROCKLAND, SUFFOLK, WESTCHESTER, DUTCHESS OR
RENSSELAER, other than a vehicle or other means of transportation used
by any person as a common carrier in transaction of business as such
common carrier, and such vehicle or other means of transportation shall
be subject to forfeiture as hereinafter in this section provided.
S 14. This act shall take effect immediately.