Legislation

Search OpenLegislation Statutes
This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 1103
Prepayment of sales tax on cigarettes
Tax (TAX) CHAPTER 60, ARTICLE 28, PART 1
§ 1103. Prepayment of sales tax on cigarettes. (a)(1) Every cigarette
agent shall pay, as a prepayment on account of the taxes imposed by this
article and pursuant to the authority of article twenty-nine of this
chapter, a tax on cigarettes possessed for sale or use in this state and
to which an agent is required to affix cigarette tax stamps under
article twenty of this chapter, at the time that the agent is required
to purchase and affix such stamps (or as otherwise prescribed by the
commissioner pursuant to such article twenty) and the provisions of such
article twenty in relation to the use of stamps to evidence payment of
the tax imposed by such article twenty shall be applicable to the
prepayment imposed by this section, except no tax shall be required to
be prepaid on cigarettes sold under circumstances that this state is
without power to impose such prepayment or sold to the United States or
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, to the extent provided in such regulations and
written policy statements of such an agency applicable to such sales.

(2) The tax imposed by this section shall be paid at the same time and
in the same manner as the tax imposed by such article twenty with
respect to cigarettes. The commissioner may, in the commissioner's
discretion, permit an agent to pay the tax imposed under this section at
the same time that the agent pays for cigarette tax stamps under article
twenty of this chapter and may require any such agent to file with the
department a bond issued by a surety company approved by the
superintendent of financial services as to solvency and responsibility
and authorized to transact business in the state or other security
acceptable to the commissioner, in such amount as the commissioner may
fix, to secure the payment of any sums due from such agent pursuant to
this section. If securities are deposited as security under this
subdivision, such securities shall be kept in the custody of the
commissioner and may be sold by the commissioner if it becomes necessary
to do so in order to recover any sums due from such agent pursuant to
this section, but no such sale shall be had until after such agent shall
have had an opportunity to litigate the validity of any prepayment of
tax if it elects to do so. Upon any such sale, the surplus, if any,
above the sums due under this section shall be returned to such agent.
Any bond or security required under this section may be jointly
administered with the bond or security required of the agent under
section four hundred seventy-two of this chapter and in such event shall
secure payment of the sums due under such article twenty and under this
section. The tax imposed by this section and the portion of the cost of
any stamp which evidences payment of the tax imposed by this section and
which is attributable to the tax imposed by this section shall not be
included in the term "basic cost of cigarettes" as such term is defined
in section four hundred eighty-three of this chapter.

(3) Every person other than an agent shall prepay the tax imposed by
this section at the same time and in the same manner as the use tax
imposed by section four hundred seventy-one-a of this chapter. The
commissioner may require any compensating use tax imposed by section
eleven hundred ten and pursuant to the authority of article twenty-nine
of this chapter to be paid at such time after allowing for the credit
provided by subdivision (b) of section eleven hundred twenty-one of this
article.

(4) The amount of the prepayment for cigarettes imposed by this
section shall be computed pursuant to the provisions of subdivision (j)
of section eleven hundred eleven of this article.

(b) Except as otherwise provided in this section, the taxes required
to be prepaid pursuant to this section shall be administered and
collected in a like manner as the taxes imposed by sections eleven
hundred five and eleven hundred ten of this article. All the provisions
of this article relating to or applicable to the administration,
collection and disposition of the taxes imposed by such sections shall
apply to the tax required to be prepaid under this section so far as
such provisions can be made applicable to such prepayments of tax with
such limitations as set forth in this article and such modifications as
may be necessary in order to adapt such language to the tax so imposed;
provided, however, that the provisions of paragraph one of subdivision
(c) of section eleven hundred thirty-seven of this article shall not be
applicable to such tax required to be prepaid under this section. Such
provisions shall apply with the same force and effect as if the language
of those provisions had been set forth in full in this section except to
the extent that any provision is either inconsistent with a provision of
this section or is not relevant to the tax required to be prepaid by
this section. For purposes of this section, any reference in this
article to the tax or taxes imposed by this article shall be deemed to
refer to the tax required to be prepaid pursuant to this section unless
a different meaning is clearly required.

(c) Nothing in this article shall be construed to require the payment
of the tax required to be prepaid pursuant to this section more than
once upon cigarettes possessed for sale or used within the state. When
the prepaid tax imposed pursuant to this section is paid, it shall have
been so paid on account of the taxes imposed by this article and
pursuant to the authority of article twenty-nine of this chapter with
respect to the retail sale or the use of cigarettes. Nothing in this
section shall modify or affect the taxes imposed by sections eleven
hundred five and eleven hundred ten of this article as applied to
receipts from the sale, or to the use, of such cigarettes.

(d) Deposit and disposition of revenue. (1) Consistent with sections
eleven hundred forty-eight of this article and twelve hundred sixty-one
of this chapter, the taxes required to be prepaid pursuant to this
section and interest and penalties thereon received by the commissioner,
after deducting the amount which the commissioner shall determine to be
necessary for reasonable costs of the commissioner in administering,
collecting, and distributing such taxes, shall be deposited daily with
such responsible banks, banking houses or trust companies, as may be
designated by the comptroller, to the credit of the comptroller. Of the
total revenue collected or received under this section, the comptroller
shall retain in the comptroller's hands such amount as the commissioner
may determine to be necessary for refunds under this article and
pursuant to the authority of article twenty-nine of this chapter.

(2) On or before the twelfth day of each month, after reserving such
amount for such refunds and such costs, the commissioner shall determine
the amount of all revenues so received during the prior month as a
result of the taxes, interest and penalties so imposed and, in addition,
on or before the last day of June and December the commissioner shall
determine in like manner the amount of such moneys received during and
including the first twenty-five days of said months. The commissioner
shall determine the proportion of revenues attributable to receipts for
the period for which the determination is made pursuant to the preceding
sentence from taxes on sales and uses of property and services and rent
and amusement charges imposed by this article and pursuant to the
authority of article twenty-nine of this chapter and administered by the
commissioner which is payable to each jurisdiction determined without
regard to this section. The amount of revenues so determined pursuant to
this section shall be deposited and distributed by the comptroller in
accordance with the same percentage amount to which a jurisdiction is
entitled determined without regard to this section. Where the amount so
determined in any distribution from such taxes (other than the tax
imposed by this section) is more or less than the amount due, the amount
of the overpayment or underpayment shall be determined as soon after the
discovery of the overpayment or underpayment as is reasonably possible
and subsequent determinations shall be adjusted by subtracting the
amount of any such overpayment from or by adding the amount of any such
underpayment to such number of subsequent payments as the comptroller
and the commissioner shall consider reasonable in view of the amount of
the overpayment or underpayment and all other pertinent facts and
circumstances. The commissioner shall not be liable for any overestimate
or underestimate of the amount of the distribution. Nor shall the
commissioner be liable for any inaccuracy in any determination with
respect to the amount of the distribution or any required adjustment
with respect to the distribution, but the commissioner shall as soon as
practicable after discovery of any error adjust the next determination
under this section to reflect any such error.