S T A T E   O F   N E W   Y O R K
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                                  9113

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            September 4, 2009
                               ___________

Introduced by M. of A. HOOPER -- read once and referred to the Committee
  on Ways and Means

AN ACT authorizing the county of Nassau to adopt and amend local laws to
  impose  an excise tax on cigarettes, to provide for the review of this
  tax, and to limit the application of these local laws;  and  to  amend
  the tax law, in relation to the imposition of this tax by such county

  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 county of Nassau, acting through  its  local  legislative  body,  is
authorized and empowered to adopt and amend local laws imposing taxes in
Nassau  county  on cigarettes as the legislature has or would have power
and authority to impose. These taxes may be collected  and  administered
by  the  fiscal officers of Nassau county by the means and manner as may
be provided by the local laws. The taxes may  be  imposed  on  the  use,
sale,  exchange,  transfer, storage, withdrawal, possession or retention
of cigarettes, provided, however, that nothing in this act may authorize
the imposition of a tax on the use, possession or  retention  (otherwise
than for sale) of two hundred cigarettes or less by any person.
  The  rate  of  tax  on  cigarettes  authorized by this act will be one
dollar and fifty cents per twenty cigarettes. If a package of cigarettes
contains more than twenty cigarettes, the rate of tax on the  cigarettes
in a package in excess of twenty will be thirty-seven and one-half cents
for each five cigarettes or fraction thereof. This tax is intended to be
imposed only once on the same package of cigarettes.
  S  2. As used in this act, the term "cigarette" means and includes (a)
any roll for smoking made wholly or in part of tobacco or of  any  other
substance  wrapped  in  paper  or  in any other substance not containing
tobacco, and (b) any roll for smoking made wholly or in part of  tobacco
wrapped in any substance containing tobacco that, because of its appear-
ance,  the  type  of  tobacco  used  in the filler, or its packaging and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14588-01-9
              

A. 9113                             2

labeling, is likely to be offered to, or purchased by,  consumers  as  a
cigarette  described in subdivision (a) of this section. However, a roll
will not be considered to be a cigarette for purposes of subdivision (b)
of  this  section if it is not treated as a cigarette for federal excise
tax purposes under the applicable federal statute in effect on April  1,
2008.
  S 3. A tax imposed under this act may have application only within the
territorial  limits  of  Nassau county and is in addition to any and all
other taxes. The method of collecting any tax imposed  under  this  act,
either  with or without adhesive or meter stamps, will be subject to the
approval of the commissioner of taxation and finance.
  S 4. Any tax imposed under this act  will  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 under this act may apply to the sale of cigarettes
under circumstances that this state is without power to impose  the  tax
or  to  cigarettes sold to the United States or to 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 regu-
lations promulgated by the appropriate executive agency  of  the  United
States.
  S  6.  Any  final determination of the amount of any tax payable under
this act is reviewable for error, illegality or  unconstitutionality  or
any  other  reason  whatsoever  by  a proceeding under article 78 of the
civil practice law and rules if application is made to the supreme court
within four months after the giving of the notice of the final  determi-
nation,  provided,  however, that any proceeding under article 78 of the
civil practice law and rules may not be instituted by  a  person  liable
for  the  tax  unless  the amount of any tax sought to be reviewed, with
interest and penalties thereon as may be provided for by  local  law  or
regulation,  is  first deposited and an undertaking filed, in the amount
and with sureties as a justice of the  supreme  court  approves  to  the
effect  that  if  the  proceeding  be dismissed or the tax confirmed the
person will pay all costs and charges which may  accrue  in  the  prose-
cution of the proceeding.
  S  7. Where any tax imposed pursuant to this act has been erroneously,
illegally or unconstitutionally collected and application for the refund
has been duly made to the proper fiscal officer  or  officers,  and  the
officer  or  officers or, if Nassau county has established a tax appeals
tribunal, the tax appeals tribunal, will have made a determination deny-
ing the refund, the determination may  be  reviewable  by  a  proceeding
under article 78 of the civil practice law and rules, provided, however,
that the proceeding is instituted within four months after giving of the
notice  of  the  denial,  that  a final determination of tax due was not
previously made, and that an undertaking is filed with the proper fiscal
officer or officers in the amount and with the sureties as a justice  of
the  supreme  court  approves  to  the  effect that if the 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 the
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  may  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.

A. 9113                             3

  S 9. Revenues resulting from the imposition  of  taxes  authorized  by
this  act  must  be  paid into the treasury of Nassau county and will be
credited to and deposited in the general fund of Nassau  county,  except
that,  after  the payment of refunds with respect to these taxes, sixty-
seven  and  three-tenths  percent  of  those  revenues (including taxes,
interest and penalties) collected or received will be paid to the  state
comptroller.  The state comptroller is authorized and directed to trans-
fer these amounts so paid as set forth in section 482 of the tax 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 OR A COUNTER-
FEIT JOINT STATE AND NASSAU COUNTY tax stamp is  an  unlawfully  stamped
package of cigarettes.
  S  11.  Section  475  of the tax law, as amended by chapter 227 of the
laws of 1956, is amended to read as follows:
  S 475. General powers of  the  [tax  commission]  COMMISSIONER.    The
powers  conferred upon the [tax commission] COMMISSIONER by sections one
hundred seventy-one and one hundred seventy-one-b of this chapter shall,
so far as applicable, be exercisable with respect to the  provisions  of
this  article. [Such commission] THE COMMISSIONER may require returns to
be filed with [it] HIM OR HER at such times and containing such informa-
tion as [it] HE OR SHE may prescribe and in such event the fact  that  a
person's  name is signed to the return shall be prima facie evidence for
all purposes that  the  return  was  actually  signed  by  such  person.
Notwithstanding  any  other  provision of this article, the [tax commis-
sion] COMMISSIONER may enter into an agreement with  any  city  of  this
state  OR  NASSAU  COUNTY which is authorized to impose a tax similar to
that imposed by this article to provide for the joint administration, in
whole or in part, of such taxes.
  S 12. 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  OF  THIS  PART  on retail sales of cigarettes and tobacco
products and consideration given or contracted to  be  given  for  ciga-
rettes  and  tobacco products the uses of which are subject to tax under
section eleven hundred ten OF THIS PART 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 THE LEGISLATIVE BODY OF THE COUNTY OF NASSAU.
  S  13.  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-
trative  code  of  the  city of New York OR ANY LOCAL LAW ENACTED BY THE
LEGISLATIVE BODY OF THE COUNTY OF NASSAU, and upon which the tax has not
been paid or the stamps not affixed as required by  such  article  [or],

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such  chapter  thirteen,  OR LOCAL LAW, 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 commis-
sioner. 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 OR NASSAU COUNTY 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 OR THE STATE AND
NASSAU COUNTY of the proceeds from [any such] A sale.
  S 14. 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 THE LEGISLATIVE BODY OF THE COUNTY OF
NASSAU, other than a vehicle or other means of  transportation  used  by
any  person  as  a common carrier in transaction of business as [such] A
common carrier, and  such  vehicle  or  other  means  of  transportation
[shall]  be  subject  to  forfeiture  as  hereinafter  in  this  section
provided.
  S 15. This act shall take effect immediately.