Section 11-1301
§ 11-1301 Definitions. When used in this chapter the following words
shall have the meanings herein indicated:
1. "Cigarette." Any roll for smoking made wholly or in part of tobacco
or any other substance, irrespective of size or shape and whether or not
such tobacco or substance is flavored, adulterated or mixed with any
other ingredient, the wrapper or cover of which is made of paper or any
other substance or material but is not made in whole or in part of
tobacco.
2. "Person." Any individual, partnership, society, association,
joint-stock company, corporation, estate, receiver, trustee, assignee,
referee or any other person acting in a fiduciary or representative
capacity, whether appointed by a court or otherwise, and any combination
of individuals.
3. "Sale or purchase." Any transfer of title or possession or both,
exchange or barter, conditional or otherwise, in any manner or by any
means whatsoever or any agreement therefor.
4. "Use." Any exercise of a right or power, actual or constructive,
and shall include but is not limited to the receipt, storage, or any
keeping or retention for any length of time, but shall not include
possession for sale by a dealer.
5. "Dealer." Any wholesale dealer or retail dealer as hereinafter
defined.
6. "Wholesale dealer." Any person who sells cigarettes to retail
dealers or other persons for purposes of resale only, and any person who
owns, operates or maintains one or more cigarette vending machines in,
at or upon premises owned or occupied by any other person.
7. "Retail dealer." Any person other than a wholesale dealer engaged
in selling cigarettes. For the purposes of this chapter, the possession
or transportation at any one time of more than four hundred cigarettes
by any person other than a manufacturer, an agent, a licensed wholesale
dealer or a person delivering cigarettes in the regular course of
business for a manufacturer, an agent or a licensed wholesale or retail
dealer, shall be presumptive evidence that such person is a retail
dealer.
8. "Package." The individual package, box or other container in or
from which retail sales of cigarettes are normally made or intended to
be made.
9. "Agent." Any person authorized to purchase and affix adhesive or
meter stamps under this chapter who is designated as an agent by the
commissioner of finance.
10. "Comptroller." The comptroller of the city.
11. "Commissioner of finance." The commissioner of finance of the
city.
12. "City." The city of New York.
13. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter.
Section 11-1302
§ 11-1302 Imposition of tax. * a. There is hereby imposed and shall be
paid a tax on:
1. All cigarettes possessed in the city for sale except as hereinafter
provided;
2. The use of all cigarettes in the city except as hereinafter
provided;
3. It is intended that the ultimate incidence of and liability for the
tax shall be upon the consumer, and that any agent, distributor or
dealer who shall pay the tax to the commissioner of finance shall
collect the tax from the purchaser or consumer. Such tax shall be at the
rate of four cents 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 the cigarettes in such package in
excess of twenty shall be two cents for each five cigarettes or fraction
thereof. Provided further, however, that on and after July second, two
thousand two, such tax shall be at the rate of seventy-five cents 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 the cigarettes in such package in excess of twenty shall be
thirty-eight cents for each five cigarettes or fraction thereof. Such
tax shall be imposed only once on the same package of cigarettes.
* NB Effective until December 31, 2014
* a. There is hereby imposed and shall be paid a tax on:
1. All cigarettes possessed in the city for sale except as hereinafter
provided;
2. The use of all cigarettes in the city except as hereinafter
provided;
3. It is intended that the ultimate incidence of and liability for the
tax shall be upon the consumer, and that any agent, distributor or
dealer who shall pay the tax to the director of finance shall collect
the tax from the purchaser or consumer.
Such tax shall be at the basic rate of two cents for each ten
cigarettes or fraction thereof and shall be imposed only once on the
same package of cigarettes. In addition to such tax there is hereby
imposed on additional tax at the following rates: 1. One and one-half
cents for each ten cigarettes where either their tar content exceeds
seventeen milligrams per cigarette or their nicotine content exceeds one
and one-tenth milligrams per cigarette;
2. Two cents for each ten cigarettes where their tar content exceeds
seventeen milligrams per cigarette and their nicotine content exceeds
one and one-tenth milligrams per cigarette.
* NB Effective December 31, 2014
b. The tax imposed hereunder shall not apply to:
1. The use, otherwise than for sale, of four hundred cigarettes or
less brought into the city, on or in possession of, any person;
2. Cigarettes sold to the United States;
3. 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 regulations promulgated by the appropriate executive
agency of the United States;
4. 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, provided such agent or wholesale
dealer complies with the regulations relating thereto.
c. The tax imposed hereunder shall be in addition to any and all other
taxes.
d. It shall be presumed that all sales or uses mentioned in this
section are subject to tax until the contrary is established, and the
burden of proof that a sale or use is not taxable hereunder shall be
upon the vendor or the purchaser.
e. Except as hereinafter provided, the tax shall be advanced and paid
by the agent or distributor. The agent shall be liable for the
collection and payment of the tax to the commissioner of finance by
purchasing from the commissioner of finance adhesive stamps of such
design and denomination as may be prescribed by such commissioner,
subject to the approval of the state tax commission. The tax may also be
paid by the use of such metering machines as are prescribed by the
commissioner of finance subject to the approval of the state tax
commission.
f. Within twenty-four hours after liability for the tax on the use of
cigarettes accrues each person liable for the tax shall file with the
commissioner of finance a return in such form as the commissioner of
finance may prescribe, together with a remittance of the tax shown to be
due thereon.
g. Agents located within or without the city shall purchase stamps and
affix them in the manner prescribed to packages of cigarettes to be sold
within the city.
h. The amount of taxes advanced and paid by the agent or distributor
as hereinabove provided shall be added to and collected as part of the
sales price of the cigarettes.
i. The commissioner of finance, notwithstanding any other provision of
this chapter, may, subject to the approval of the state tax commission,
provide by regulation that the tax imposed by this section shall be
collected without the use of stamps.
Section 11-1303
§ 11-1303 License. a. License required of wholesale and retail
dealers. 1. It shall be unlawful for a person to engage in business as
a wholesale or retail dealer without a license as prescribed in this
section or subchapter one of chapter two of title twenty of the code,
whichever is applicable.
2. It shall be unlawful for a person to permit any premises under such
person's control to be used by any other person in violation of
paragraph one of subdivision a of this section.
b. Application for license. 1. Wholesale cigarette license. In order
to obtain a license to engage in business as a wholesale dealer, a
person shall file application with the commissioner of finance for one
license for each place of business that he or she desires to have for
the sale of cigarettes in the city. Every application for a wholesale
cigarette license shall be made upon a form prescribed and prepared by
the commissioner of finance and shall set forth such information as the
commissioner shall require. The commissioner of finance may, for cause,
refuse to issue a wholesale cigarette license. Upon approval of the
application, the commissioner of finance shall grant and issue to the
applicant a wholesale cigarette license for each place of business
within the city set forth in the application. Cigarette licenses shall
not be assignable and shall be valid only for the persons in whose names
such licenses have been issued and for the transaction of business in
the places designated therein and shall at all times be conspicuously
displayed at the places for which issued.
2. Retail cigarette license. In order to obtain a license to engage in
business as a retail dealer, a person shall file application with the
commissioner of consumer affairs in accordance with the provisions of
section 20-202 of the code.
c. Duplicate licenses. Whenever any license issued by the commissioner
of finance under the provisions of this section is defaced, destroyed or
lost, the commissioner of finance shall issue a duplicate license to the
holder of the defaced, destroyed or lost license upon the payment of a
fee of fifteen dollars. A duplicate retail dealer license may be
obtained from the commissioner of consumer affairs as provided in
section 20-204 of this code.
d. Suspension or revocation of licenses. (1) After a hearing, the
commissioner of finance may suspend or revoke a wholesale cigarette
license and the commissioner of consumer affairs, upon notice from the
commissioner of finance, may suspend or revoke a retail cigarette
license whenever the commissioner of finance finds that the holder
thereof has failed to comply with any of the provisions of this chapter
or any rules of the commissioner of finance prescribed, adopted and
promulgated under this chapter.
(2) The commissioner of finance may also suspend or revoke a wholesale
cigarette license or any rules promulgated thereunder which authorizes
the suspension or revocation of a wholesale cigarette license.
(3) The commissioner of consumer affairs may also suspend or revoke a
retail cigarette license in accordance with the requirements of any
other section of this code or any rules promulgated thereunder which
authorize suspension or revocation of a retail cigarette license.
(4) Upon suspending or revoking any wholesale cigarette license, the
commissioner of finance shall direct the holder thereof to surrender to
the commissioner of finance immediately all wholesale cigarette licenses
or duplicates thereof issued to such holder and the holder shall
surrender promptly all such licenses to the commissioner of finance as
directed. Before the commissioner of finance suspends or revokes a
wholesale cigarette license or notifies the commissioner of consumer
affairs of a finding of a violation of this chapter with respect to a
retail cigarette license pursuant to paragraph (1) of this subdivision,
he or she shall notify the holder and the holder shall be entitled to a
hearing, if desired, if the holder, within ninety days from the date of
such notification, or, if the commissioner of finance has established a
conciliation procedure pursuant to section 11-124 of the code and the
taxpayer has requested a conciliation conference in accordance
therewith, within ninety days from the mailing of a conciliation
decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, both (A) serves a
petition upon the commissioner of finance and (B) files a petition with
the tax appeals tribunal for a hearing. After such hearing, the
commissioner of finance, good cause appearing therefor, may suspend or
revoke the wholesale cigarette license, and, in the case of a retail
cigarette license, notify the commissioner of consumer affairs of a
violation of this chapter or any rules promulgated thereunder. Upon such
notification, the commissioner of consumer affairs may suspend or revoke
a retail cigarette license as provided in subdivision b of section
20-206 of the code. The commissioner of finance may, by rule, provide
for granting a similar hearing to an applicant who has been refused a
wholesale cigarette license by the commissioner of finance.
e. Prohibited sales and purchases. No agent or dealer shall sell
cigarettes to an unlicensed wholesale or retail dealer, or to a
wholesale or retail dealer whose license has been suspended or revoked.
No dealer shall purchase cigarettes from any person other than a
manufacturer or a licensed wholesale dealer.
f. Retail dealers. The commissioner of finance may, after hearing,
issue an order prohibiting a retail dealer from selling cigarettes, for
such period as the order shall specify, for failure to comply with any
of the provisions of this chapter or any rules or regulations of the
commissioner of finance prescribed, adopted and promulgated under this
chapter.
g. License fees; numbering and registering of licenses; term. 1. The
annual fee for a wholesale cigarette dealer's license shall be six
hundred dollars, and the annual fee for a retail cigarette dealer's
license shall be as provided in subdivision c of section 20-202 of this
code.
2. Wholesale cigarette licenses shall be regularly numbered and duly
registered.
3. Wholesale cigarette licenses shall expire on January thirty-first
next succeeding the date of issuance unless sooner suspended or revoked.
Section 11-1304
§ 11-1304 Preparation and sale of stamps; commissions. a. The
commissioner of finance shall, subject to the approval of the state tax
commission, prescribe, prepare and furnish stamps of such denominations
and quantities as may be necessary for the payment of the tax imposed by
this chapter, and may, from time to time, provide for the issuance and
exclusive use of stamps of a new design and forbid the use of stamps of
any other design. Such stamps shall be in the form of a single stamp for
the payment of the tax imposed by this chapter or, in lieu thereof, a
joint single stamp to be prepared and issued by the state of New York
and the city for the payment of the tax imposed by this chapter and the
taxes imposed by article twenty of the tax law. The commissioner of
finance may make such arrangements with the state tax commission for the
method of acquiring and the manner of sharing the costs of such joint
single stamps as he or she deems appropriate. The commissioner of
finance, subject to the approval of the state tax commission, shall make
provisions for the sale of such stamps at such places as he or she may
deem necessary, and may appoint fiscal agents for such purpose.
b. The commissioner of finance may appoint wholesale dealers of
cigarettes and any other person within or without the city as agents to
affix stamps to be used in paying the tax hereby imposed, but an agent
shall at all times have the right to appoint the person in his or her
employ who is to affix the stamps to any cigarettes under the agent's
control. Whenever the commissioner of finance shall sell, consign or
deliver to any such agent any such stamps, such agent shall be entitled
to receive as compensation for his or her services and expenses in
affixing such stamps, and to retain out of the moneys to be paid by the
agent for such stamps, a commission on the par value thereof. The
commissioner of finance is hereby authorized to prescribe a schedule of
commissions not exceeding five per centum, allowable to such agent for
affixing such stamps; provided, however, that the commissioner of
finance may authorize commissions to agents and temporary agents not
exceeding ten per centum for a special period not exceeding fifteen days
immediately following the enactment of this chapter to cover the initial
stamping of packages of cigarettes. Such schedule shall be uniform for
each type and denomination of stamp used, and may be on a graduated
scale with respect to the number of stamps purchased. In the event that
a joint stamp is issued, the commissions allowed shall be determined
jointly by the state tax commission and the commissioner of finance and
shall be based on the full par value of such stamp. The extent to which
the city and the state of New York shall bear the expense of such
commissions shall be determined by agreement between the state tax
commission and the commissioner of finance. The commissioner of finance
may in his or her discretion permit an agent to pay for such stamps
within thirty days after the date of sale, consignment or delivery of
such stamps to such agents, and may require any such agent to file with
the commissioner of finance a bond, issued by a surety company approved
by the superintendent of insurance as to solvency and responsibility and
authorized to transact business in the state, in such amounts as the
commissioner of finance may fix, to secure the payment of any sums from
such agent pursuant to this chapter.
c. The commissioner of finance may redeem unused stamps lawfully in
the possession of any person. No person shall sell or offer for sale any
stamp issued under this chapter, except by written permission of the
commissioner of finance. The commissioner of finance may prescribe rules
and regulations concerning refunds, sales of stamps and redemptions
under the provisions of this chapter.
d. (1) Except as provided in this subdivision, it shall be unlawful
for any person to sell, offer for sale, possess or transport any affixed
or unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions.
(2) Paragraph one of this subdivision shall not apply to:
(A) a person, other than a retail dealer, in possession of twenty or
fewer affixed tax stamps;
(B) public officers or employees in the performance of their official
duties requiring possession or control of affixed or unaffixed false,
altered or counterfeit cigarette tax stamps, imprints or impressions; or
(C) any person authorized by the commissioner of finance or the
commissioner of the department of taxation and finance of the state of
New York to perform law enforcement functions.
Section 11-1305
§ 11-1305 Affixation and cancellation of stamps; presumptions. a. Each
agent shall affix to each package of cigarettes stamps evidencing the
payment of tax imposed by this chapter and shall cancel such stamps
prior to delivery of such cigarettes to any dealer in the city, unless
stamps have been affixed to such packages of cigarettes and cancelled
before such agent received them.
b. Each dealer, other than an agent, in the city shall immediately
upon the receipt of any cigarettes at his or her place of business mark
in ink on each unopened box, carton or other container of such
cigarettes the word "received" and the year, month, day and hour of such
receipt and shall affix his or her signature thereto or shall mark them
in any other manner prescribed by the commissioner of finance. In
addition, each retail dealer shall, within twenty-four hours after
receipt of any cigarettes at his or her place of business and prior to
exposing for sale or sale by such retail dealer of such cigarettes, open
such box, carton or other container and, unless such stamps have been
previously affixed, immediately notify the dealer from whom he or she
purchased such cigarettes and arrange for the replacement by the dealer
of such cigarettes by cigarettes with such stamps affixed within
twenty-four hours.
c. Stamps shall be cancelled in the manner prescribed by regulation.
d. Whenever any cigarettes are found in the place of business of a
dealer without the stamps affixed and cancelled, or not marked as having
been received within the preceding twenty-four hours, the prima facie
presumption shall arise that such cigarettes are kept therein in
violation of the provisions of this chapter.
e. Stamps shall be affixed to each package of cigarettes of an
aggregate denomination not less than the amount of the tax upon the
contents therein, and shall be affixed in such manner as to be visible
to the purchaser.
Section 11-1306
§ 11-1306 Possession and transportation of unstamped cigarettes. Every
person who shall possess or transport upon the public highways, roads or
streets of this city more than four hundred cigarettes in unstamped
packages, shall be required to have in his or her actual possession
invoices or delivery tickets for such cigarettes. All such invoices or
delivery tickets shall show the true name and address of the consignor
or seller, the true name and address of the consignee or purchaser and
the quantity and brands of the cigarettes transported. The absence of
such invoices or delivery tickets shall be prima facie evidence that
such person is a dealer in cigarettes in the city and subject to the
provisions of this chapter.
Section 11-1307
§ 11-1307 Records to be kept; examination. a. At the time of
delivering cigarettes to any person each agent or wholesale dealer in
the city shall make a true duplicate invoice showing the date of
delivery, the number of packages and the number of cigarettes contained
therein in each shipment of cigarettes delivered, and the name of the
purchaser to whom delivery is made, and shall retain the same for a
period of three years subject to the use and inspection of the
commissioner of finance. Each dealer in the city shall procure and
retain invoices showing the number of packages and the number of
cigarettes contained therein in each shipment of cigarettes received by
such dealer, the date thereof, and the name of the shipper, and shall
retain the same for a period of three years subject to the use and
inspection of the commissioner of finance.
b. The commissioner of finance by regulation may provide that whenever
cigarettes are shipped into the city, the railroad company, express
company, trucking company, or carrier transporting any shipment thereof
shall file with the commissioner of finance a copy of the freight bill
within ten days after the delivery in the city of each shipment.
c. All dealers within the city shall maintain and keep for a period of
three years such other records of cigarettes received, sold or delivered
within the city as may be required by the commissioner of finance.
d. Without limiting the powers granted the commissioner of consumer
affairs pursuant to title twenty of the code and any rules promulgated
thereunder, the commissioner of finance or the commissioner's duly
authorized representatives are hereby authorized to examine the books,
papers, invoices and other records, stock of cigarettes in and upon any
premises where the same are placed, stored and sold, and equipment of
any such agent or dealer pertaining to the sale and delivery of
cigarettes taxable under this chapter. To verify the accuracy of the tax
imposed and assessed by this chapter, each such person is hereby
directed and required to give to the commissioner of finance or the
commissioner's duly authorized representatives, the means, facilities
and opportunity for such examinations as are herein provided for and
required.
e. The commissioner of finance shall investigate any failure to pay
the tax required by this chapter or any other failure to comply with
this chapter or the rules or regulations promulgated thereunder, and
shall take the necessary steps to enforce compliance therewith.
Section 11-1308
§ 11-1308 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof; and to require
the filing of reports by agents and/or dealers;
2. To prescribe the method and the means to be used in the
cancellation of stamps;
3. To fix the denominations and the method of sale of stamps;
4. To delegate his or her powers to a deputy or other employee or
employees of the department of finance;
5. To extend, for cause shown, the time for filing any return or
reports for a period not exceeding thirty days; and to compromise
disputed claims in connection with the taxes hereby imposed;
6. To assess, determine, revise and adjust the taxes imposed under
this chapter;
7. To request information from the state tax commission or of the
treasury department of the United States or of the taxing officials of
any other state or city which imposes a similar cigarette tax, and to
afford information to such commission, department or other state or
city, any other provision of this chapter to the contrary
notwithstanding;
8. To enter into an arrangement with the state tax commission with
respect to cooperative collection, auditing or administration of the
taxes imposed by this chapter and the taxes imposed by article twenty of
the tax law of the state of New York.
9. To prescribe forms to be filled out by the vendor or purchaser, or
both, in each instance in which a sale is made by an agent or wholesale
dealer to a person outside the state or the city or to a dealer in the
city for purposes of resale outside the state or the city.
10. To appoint any dealer as a temporary agent to buy and affix stamps
for a period not in excess of fifteen days.
11. In furtherance of the purposes of paragraph three of subdivision a
of section 11-1302 of this chapter, to provide by appropriate regulation
for the maintenance of such differentials in wholesale and retail prices
of cigarettes sold by any vendor, other than the manufacturer, so as to
reflect the amounts of tax attributable to the tar and nicotine content
of cigarettes sold. In so doing he or she may use and consider the
factory price of various brands of cigarettes. In addition, the
commissioner may consider the mode or method by which retail sales are
effected and limit his or her regulations so as to affect any one or
more or all of such modes or methods.
Section 11-1309
§ 11-1309 Administration of oaths and compelling testimony. a. The
commissioner of finance, the employees or agents duly designated and
authorized by the commissioner, the tax appeals tribunal and any of its
duly designated and authorized employees or agents shall have power to
administer oaths and take affidavits in relation to any matter or
proceeding in the exercise of their powers and duties under this
chapter. The commissioner of finance and the tax appeals tribunal shall
have power to subpoena and require the attendance of witnesses and the
production of books, papers and documents to secure information
pertinent to the performance of the duties of the commissioner or of the
tax appeals tribunal hereunder and of the enforcement of this chapter,
and to examine them in relation thereto, and to issue commissions for
the examination of witnesses who are out of the state or unable to
attend before the commissioner or the tax appeals tribunal or excused
from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal hereunder.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal hereunder and witnesses attending
in response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff and
the city sheriff's duly appointed deputies or any officers or employees
of the department of finance or the tax appeals tribunal, designated to
serve such process.
Section 11-1310
§ 11-1310 Determination of tax. If any person fails to pay the tax, or
to file a return required by this chapter or if a return, when filed, is
insufficient and the maker fails to file a corrected or sufficient
return within ten days after the same may be required by notice from the
commissioner of finance, he or she shall determine the amount of tax due
from such information as may be obtainable or on the basis of external
indices, such as number of cigarettes purchased or sold, stock on hand,
volume of sales by similar dealers and/or other factors. Notice of such
determination shall be given to the person liable for the payment of the
tax. Such determination shall finally and irrevocably fix the tax unless
the person against whom it is assessed shall, within ninety days of the
giving of such notice, or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of the
code and the person liable for the tax has requested a conciliation
conference in accordance therewith, within ninety days from the mailing
of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing, or unless the
commissioner of finance shall of his or her own motion redetermine such
tax. Such hearing and any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of this charter. After such hearing the tax appeals
tribunal shall give notice of its decision to the person liable for the
tax and to the commissioner of finance. A decision of the tax appeals
tribunal sitting en banc shall be reviewable for error, illegality,
unconstitutionality or any other reason whatsoever by a proceeding under
article seventy-eight of the civil practice law and rules if instituted
by the person against whom the tax was assessed within four months after
the giving of the notice of such tax appeals tribunal decision. Such
proceeding shall 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, if any, shall have first been deposited with the commissioner
of finance and an undertaking filed with the commissioner of finance 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 charges which may
accrue in the prosecution of the proceeding.
Section 11-1311
§ 11-1311 Refunds. a. In the manner provided in this subdivision the
commissioner of finance shall refund, without interest, any tax,
interest or penalty erroneously, illegally or unconstitutionally
collected or paid. In addition, whenever any cigarettes upon which
stamps have been affixed 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 have become unfit for use and consumption or unsalable, or have been
destroyed, the dealer shall be entitled to a refund of the amount of tax
paid, less the applicable commission, with respect to such cigarettes.
In any event no refund shall be granted unless application to the
commissioner of finance therefor is made within two years after the
stamps were affixed to such cigarettes or the tax was paid, except if a
person has consented in writing to an extension of the period for
assessment of additional tax pursuant to subdivision c of section
11-1315 of this chapter, and such consent is given within the two-year
period for making a refund application provided in this subdivision, the
period for making a refund application shall not expire prior to six
months after the expiration of the period within which an assessment
could be made pursuant to such consent or any extension thereof.
Whenever a refund is made or denied by the commissioner of finance, the
commissioner shall state his or her reasons therefor and give notice
thereof to the applicant in writing. A person shall not be entitled to a
hearing in connection with such application for a refund if such person
has already had a hearing or had been given the opportunity of a hearing
as provided in section 11-1310 of this chapter or has failed to avail
himself or herself of the remedies therein provided. No refund shall be
made of a tax, interest or penalty paid pursuant to a determination of
the commissioner of finance as provided in section 11-1310 of this
chapter, unless the tax appeals tribunal, after a hearing as in said
section provided or the commissioner of finance, of his or her own
motion, shall have reduced the tax or penalty, or it shall have been
established in a proceeding, pursuant to article seventy-eight of the
civil practice law and rules that such determination was erroneous,
illegal, unconstitutional or otherwise improper, in which event a refund
without interest shall be made as provided upon the determination of
such proceeding. Any determination of the commissioner of finance
denying a refund pursuant to this subdivision shall be final and
irrevocable unless the applicant for such refund, within ninety days
from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure
pursuant to section 11-124 of this title and the applicant has requested
a conciliation conference in accordance therewith, within ninety days
from the mailing of a conciliation decision or the date of the
commissioner's confirmation of the discontinuance of the conciliation
proceeding, both (1) serves a petition upon the commissioner of finance
and (2) files a petition with the tax appeals tribunal for a hearing.
Such petition for a refund made as provided in this subdivision shall be
deemed an application for a revision of any tax, penalty or interest
complained of. Such hearing and any appeal to the tax appeals tribunal
sitting en banc from the decision rendered in such hearing shall be
conducted in the manner and subject to the requirements prescribed by
the tax appeals tribunal pursuant to sections one hundred sixty-eight
through one hundred seventy-two of the charter. After such hearing, the
tax appeals tribunal shall give notice of its decision to the applicant
and to the commissioner of finance. The applicant shall be entitled to
maintain a proceeding under article seventy-eight of the civil practice
law and rules to review a decision of the tax appeals tribunal sitting
en banc, provided, however, that such proceeding is instituted within
four months after such decision, and provided, further, in the case of
an application by a person liable for the tax, that a final
determination of tax due was not previously made, and that an
undertaking shall first be filed by such person with the commissioner of
finance 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
charges which may accrue in the prosecution of such proceeding.
b. If the commissioner of finance is satisfied that any dealer is
entitled to a refund the commissioner shall issue to such dealer stamps
of sufficient value to cover the refund or to make such refund.
Section 11-1312
§ 11-1312 Reserves. In cases where the taxpayer has applied for a
refund and has instituted proceedings under article seventy-eight of the
civil practice law and rules to review a determination adverse to the
taxpayer on his or her application for refund or has deposited the
amount of tax assessed in connection with proceedings under section
11-1310 of this chapter, the comptroller shall set up appropriate
reserves to meet any decision adverse to the city.
Section 11-1313
§ 11-1313 Remedies exclusive. The remedies provided by sections
11-1310 and 11-1311 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or
determination on an application for refund by the commissioner of
finance, nor any decision by the tax appeals tribunal or any of its
administrative law judges, shall be enjoined or reviewed by an action
for declaratory judgment, an action for money had and received, or by
any legal or equitable action or proceeding other than, in the case of a
decision by the tax appeals tribunal sitting en banc, a proceeding under
article seventy-eight of the civil practice law and rules; provided,
however, that a taxpayer may proceed by declaratory judgment if the
taxpayer institutes suit within thirty days after a deficiency
assessment is made and pays the amount of the deficiency assessment to
the commissioner of finance prior to the institution of such suit and
posts a bond for costs as provided in section 11-1310 of this chapter.
Section 11-1314
§ 11-1314 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax, penalty or interest imposed by this chapter as
herein provided, the corporation counsel shall, upon the request of the
commissioner of finance, bring or cause to be brought an action to
enforce the payment of the same on behalf of the city in any court of
the state of New York or of any other state or of the United States. If,
however, the commissioner of finance in his or her discretion believes
that a taxpayer subject to the provisions of this chapter is about to
cease business, leave the state or remove or dissipate the assets out of
which the tax, interest or penalties might be satisfied and that any
such tax, interest or penalty will not be paid when due, he or she may
declare such tax, interest or penalty to be immediately due and payable
and may issue a warrant immediately.
b. In addition to all other remedies for the collection of any taxes,
penalties or interest due under the provisions of this chapter, the
commissioner of finance may issue a warrant, directed to the city
sheriff commanding the sheriff to levy upon and sell the real and
personal property of the person liable for the tax which may be found
within the city, for the payment of the amount thereof, with any
penalties and interest and the cost of executing the warrant, and to
return such warrant to the commissioner of finance and to pay to the
commissioner the money collected by virtue thereof within sixty days
after the receipt of such warrant. The city sheriff shall within five
days after the receipt of the warrant file with the county clerk a copy
thereof, and thereupon such clerk shall enter in the judgment docket the
name of the person mentioned in the warrant and the amount of the taxes,
penalty and interest for which the warrant is issued and the date when
such copy is filed. Thereupon the amount of such warrant shall become a
lien upon the title to and interest in real and personal property of the
person against whom the warrant is issued. The city sheriff shall then
proceed upon the warrant in the same manner and with like effect as that
provided by law in respect to executions issued against property upon
judgments of a court of record, and for services in executing the
warrant the city sheriff shall be entitled to the same fees which he or
she may collect in the same manner. In the discretion of the
commissioner of finance a warrant of like terms, force and effect may be
issued and directed to any officer or employee of the department of
finance, and in the execution thereof such officer or employee shall
have all the powers conferred by law upon sheriffs, but shall be
entitled to no fee or compensation in excess of the actual expenses paid
in the performance of such duty. If a warrant is returned not satisfied
in full, the commissioner of finance may from time to time issue new
warrants and shall have the same remedies to enforce the amount due
thereunder as if the city had recovered judgment therefor and execution
thereon had been returned unsatisfied.
c. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes,
additions to tax, penalties and interest filed pursuant to subdivision b
of this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
Section 11-1315
§ 11-1315 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by such person pursuant to the provisions of this chapter or in any
application made by such person or, if no return has been filed or
application made, then to such address as may be obtainable. The mailing
of such notice shall be presumptive evidence of the receipt of the same
by the person to whom addressed. Any period of time which is determined
according to the provisions of this chapter by the giving of notice
shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax,
interest or penalty provided by this chapter. However, except in the
case of a wilfully false or fraudulent return with intent to evade the
tax, no assessment of additional tax shall be made after the expiration
of more than three years from the date of the filing of a return,
provided, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a person has consented in writing
that such period be extended, the amount of such additional tax due may
be determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made,
within a prescribed period or on or before a prescribed date under
authority of any provision of this chapter is, after such period or such
date, delivered by United States mail to the commissioner of finance,
the tax appeals tribunal, bureau, office, officer or person with which
or with whom such document is required to be filed, or to which or to
whom such payment is required to be made, the date of the United States
postmark stamped on the envelope shall be deemed to be the date of
delivery. This subdivision shall apply only if the postmark date falls
within the prescribed period or on or before the prescribed date for the
filing of such document, or for making the payment, including any
extension granted for such filing or payment, and only if such document
or payment was deposited in the mail, postage prepaid, properly
addressed to the commissioner of finance, the tax appeals tribunal,
bureau, office, officer or person with which or with whom the document
is required to be filed or to which or to whom such payment is required
to be made. If any document is sent by United States registered mail,
such registration shall be prima facie evidence that such document was
delivered to the commissioner of finance, the tax appeals tribunal,
bureau, office, officer or person to which or to whom addressed, and the
date of registration shall be deemed the postmark date. The commissioner
of finance or, where relevant, the tax appeals tribunal is authorized to
provide by regulation the extent to which the provisions of the
preceding sentence with respect to prima facie evidence of delivery and
the postmark date shall apply to certified mail. Except as provided in
subdivision f of this section, this subdivision shall apply in the case
of postmarks not made by the United States postal service only if and to
the extent provided by regulation of the commissioner of finance or,
where relevant, the tax appeals tribunal.
e. When the last day prescribed under authority of this chapter
(including any extension of time) for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the foregoing, any withdrawal of designation or
additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the
commissioner of finance is inadequate for the needs of the city, the
commissioner of finance may withdraw such designation for purposes of
this title. Notwithstanding the foregoing, any withdrawal of designation
or additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
Section 11-1317
§ 11-1317 Penalties and interest. a. Any person failing to pay a tax
payable under this chapter when due shall be subject to a penalty of
fifty per centum of the amount of tax due, but the commissioner of
finance, if satisfied that the delay was excusable, may remit all or any
part of such penalty. Such penalty shall be paid and disposed of in the
same manner as other revenues under this chapter. Unpaid penalties may
be enforced in the same manner as the tax imposed by this chapter.
b. (1) In addition to any other penalty imposed by this section, the
commissioner of finance may (a) impose a penalty of not more than one
hundred dollars for each two hundred cigarettes or fraction thereof in
excess of one thousand cigarettes in unstamped or unlawfully stamped
packages in the possession or under the control of any person and (b)
impose a penalty of not more than two hundred dollars for each ten
affixed or unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions, or fraction thereof, in excess of one hundred
affixed or unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions in the possession or under the control of any
person. Such penalty shall be determined as provided in section 11-1310
of this chapter, and may be reviewed only pursuant to such section. Such
penalty may be enforced in the same manner as the tax imposed by this
chapter. The commissioner of finance, in his or her discretion, may
remit all or part of such penalty. Such penalty shall be paid and
disposed of in the same manner as other revenues under this chapter.
(2) The penalties imposed by this paragraph may be imposed by the
commissioner of finance in addition to any other penalty imposed by this
section, but in lieu of the penalties imposed by subparagraph (a) of
paragraph one of this subdivision: (a) not less than thirty dollars but
not more than two hundred dollars for each two hundred cigarettes, or
fraction thereof, in excess of one thousand cigarettes but less than or
equal to five thousand cigarettes in unstamped or unlawfully stamped
packages knowingly in the possession or knowingly under the control of
any person; (b) not less than seventy-five dollars but not more than two
hundred dollars for each two hundred cigarettes, or fraction thereof, in
excess of five thousand cigarettes but less than or equal to twenty
thousand cigarettes in unstamped or unlawfully stamped packages
knowingly in the possession or knowingly under the control of any
person; and (c) not less than one hundred dollars but not more than two
hundred dollars for each two hundred cigarettes, or fraction thereof, in
excess of twenty thousand cigarettes in unstamped or unlawfully stamped
packages, knowingly in the possession or knowingly under the control of
any person. Such penalty shall be determined as provided in section
11-1310 of this chapter, and may be reviewed only pursuant to such
section. Such penalty may be enforced in the same manner as the tax
imposed by this chapter. The commissioner of finance, in his or her
discretion, may remit all or part of such penalty. Such penalty shall be
paid and disposed of in the same manner as other revenues under this
chapter.
* c. (1) 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 this chapter.
(2) Nothing in this section 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 or her
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.
* NB Amended Ch. 765/85 § 38, language juxtaposed per Ch. 907/85 § 14
d. (1) 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 set by the
commissioner of finance pursuant to paragraph two of this subdivision,
or, if no rate is set, at the rate of seven and one-half percent per
annum, shall be paid for the period from such last date to the date of
payment. In computing the amount of interest to be paid, such interest
shall be compounded daily. Interest under this subdivision shall not be
paid if the amount thereof is less than one dollar. The interest imposed
by this subdivision shall be paid and disposed of in the same manner as
other revenues from this chapter. Unpaid interest may be enforced in the
same manner as the tax imposed by this chapter.
(2) (A) The commissioner of finance shall set the rate of interest to
be paid pursuant to paragraph one of this subdivision, but if no such
rate of interest is set, such rate shall be deemed to be set at seven
and one-half percent per annum. Such rate shall be the rate prescribed
in subparagraph (B) of this paragraph but shall not be less than seven
and one-half percent per annum. Any such rate set by the commissioner of
finance shall apply to taxes, or any portion thereof, which remain or
become due on or after the date on which such rate becomes effective and
shall apply only with respect to interest computed or computable for
periods or portions of periods occurring in the period in which such
rate is in effect.
(B) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the
treasury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent (or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent).
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this
subparagraph, the federal short-term rate for the first month in each
calendar quarter shall apply during the first calendar quarter beginning
after such month.
(ii) Special rule for the month of September, nineteen hundred
eighty-nine. The federal short-term rate for the month of April,
nineteen hundred eighty-nine shall apply with respect to setting the
rate of interest for the month of September, nineteen hundred
eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the city record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of
subdivision five of section one thousand forty-one of the city charter
relating to the definition of a rule.
* e. Cross-reference: For criminal penalties, see chapter forty of
this title.
* NB Added Ch. 765/85 § 39, language juxtaposed per Ch. 907/85 § 14
Section 11-1318
§ 11-1318 Disposition of revenues. All revenues resulting from the
imposition of the tax under this chapter shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, except that, after the payment of refunds with respect to
such tax, effective on and after July second, two thousand two,
forty-six and one-half percent and, effective on and after April first,
two thousand three, forty-six percent of such revenues (including taxes,
interest and penalties) collected or received shall be paid to the state
comptroller.
Section 11-1319
§ 11-1319 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter two hundred
thirty-five of the laws of nineteen hundred fifty-two, pursuant to which
it is enacted.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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