§ 471. Imposition of cigarette tax. 1. There is hereby imposed and
shall be paid a tax on all cigarettes possessed in the state by any
person for sale, except that no tax shall be imposed on cigarettes sold
under such circumstances that this state is without power to impose such
tax, including sales to qualified Indians for their own use and
consumption on their nations' or tribes' qualified reservation, 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 policy statements of such an agency
applicable to such sales. The tax imposed by this section is imposed on
all cigarettes sold on an Indian reservation to non-members of the
Indian nation or tribe and to non-Indians and evidence of such tax shall
be by means of an affixed cigarette tax stamp. Indian nations or tribes
may elect to participate in the Indian tax exemption coupon system
established in section four hundred seventy-one-e of this article which
provides a mechanism for the collection of the tax imposed by this
section on cigarette sales on qualified reservations to such non-members
and non-Indians and for the delivery of quantities of tax-exempt
cigarettes to Indian nations or tribes for the personal use and
consumption of qualified members of the Indian nation or tribe. If an
Indian nation or tribe does not elect to participate in the Indian tax
exemption coupon system, the prior approval system shall be the
mechanism for the delivery of quantities of tax-exempt cigarettes to
Indian nations or tribes for the personal use and consumption of
qualified members of the Indian nation or tribe as provided for in
paragraph (b) of subdivision five of this section. Such tax on
cigarettes shall be at the rate of five dollars and thirty-five cents
for each twenty 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 one dollar and thirty-three and three-quarters cents for each five
cigarettes or fraction thereof. Such tax is intended to be imposed upon
only one sale of the same package of cigarettes. It shall be presumed
that all cigarettes within the state are subject to tax until the
contrary is established, and the burden of proof that any cigarettes are
not taxable hereunder shall be upon the person in possession thereof.

2. It is intended that the ultimate incidence of and liability for the
tax shall be upon the consumer, and that any agent or dealer who shall
pay the tax to the commissioner shall collect the tax from the purchaser
or consumer. Except as hereinafter provided, the tax shall be advanced
and paid by the agent. The agent shall be liable for the collection and
payment of the tax on cigarettes imposed by this article and shall pay
the tax to the commissioner by purchasing, under such regulations as he
or she shall prescribe, adhesive stamps of such designs and
denominations as he or she shall prescribe. The tax on cigarettes may
also be paid by or through the use of metering machines if the
commissioner so prescribes. Agents, located within or without the state,
shall purchase stamps and affix such stamps in the manner prescribed to
packages of cigarettes to be sold within the state, in which case any
dealer subsequently receiving such stamped packages of cigarettes will
not be required to purchase and affix stamps on such packages of
cigarettes. All cigarettes sold by agents and wholesalers to Indian
nations or tribes or reservation cigarette sellers located on an Indian
reservation must bear a tax stamp.

3. The amount of taxes advanced and paid by the agent as hereinabove
provided shall be added to and collected as part of the sales price of
the cigarettes.

4. (a) Notwithstanding any provision of law to the contrary, no
person, including but not limited to a tobacco product manufacturer,
shall sell unstamped packages of cigarettes to any agent, if such person
has not been provided with a certification by the agent as required in
paragraph (b) of this subdivision.

(b) Any agent who purchases unstamped packages of cigarettes from any
person, which are intended for resale in or into the state, shall
provide such person and the department with a certification under
penalty of perjury that such cigarettes will not be resold by the agent
in violation of the terms of this article. Such certification shall be
provided to such person and the department prior to the first sale of
such cigarettes by such person to the agent following the effective date
of this subdivision, and annually thereafter, on such form as shall be
prescribed by the commissioner.

5. Prior approval system. (a) For any year that the recognized
governing body of an Indian nation or tribe has not elected to
participate in the Indian tax exemption coupon system established in
section four hundred seventy-one-e of this article, paragraph (b) of
this subdivision provides for the prior approval system to be the
mechanism as to how Indian nations or tribes or reservation cigarette
sellers can purchase adequate quantities of tax-exempt cigarettes for
the personal use and consumption of qualified members of the Indian
nation or tribe on their nations' or tribes' qualified reservation.

(b) If an Indian nation or tribe does not elect to participate in the
Indian tax exemption coupon system, Indian nations or tribes or
reservation cigarette sellers may purchase from New York state licensed
cigarette stamping agents and wholesalers an adequate quantity of
tax-exempt cigarettes based on probable demand on their nations' or
tribes' qualified reservation for official nation or tribal or qualified
Indian use or consumption from agents and wholesalers who have received
prior approval from the department. All such pre-approved tax exempt
cigarettes shall nonetheless bear a tax stamp. The department shall
grant agents and wholesalers prior approval in a manner and form to be
determined by the department and as may be prescribed by regulation. The
department shall issue expedited refunds or credits to agents whenever
the department grants such prior approvals. Probable demand shall be
determined as provided by subdivision two of section four hundred
seventy-one-e of this article and as may be prescribed by regulation.

6. Tax agreements with Indian nations or tribes. If an Indian nation
or tribe enters into an agreement with the state and the legislature
approves such agreement or if an Indian nation or tribe enters into an
agreement with the state that is part of a stipulation and order
approved by a federal court of competent jurisdiction regarding the sale
and distribution of cigarettes on the nation's or tribe's qualified
reservation, the terms of such agreement shall take precedence over the
provisions of this article and exempt sales to non-members of the tribe
or nation and non-Indians by such nation from such taxes to the extent
that such taxes are specifically referred to in the agreement, and the
sale or distribution, including transportation, of any cigarettes to the
nation's or tribe's qualified reservation shall be in accordance with
the provisions of such agreement.

7. The taxes imposed under this section shall not apply to adult-use
cannabis products subject to tax under article twenty-C of this chapter.