485. Determination of cost of agent, retail dealer or wholesale dealer. (a) 1. In determining "cost of the retail dealer", "cost of the agent" and "cost of the wholesale dealer" the tax commission or a court shall receive and consider as bearing on the bona fides of such cost, evidence tending to show that any such person complained against under any of the provisions of this article purchased cigarettes, with respect to the sale of which complaint is made, at a fictitious price, or upon terms, or in such a manner, or under such invoices, as to conceal the true costs, discounts or terms of purchase, and shall also receive and consider as bearing on the bona fides of such cost, evidence of the normal, customary and prevailing terms and discounts in connection with other sales of a similar nature in the trade area or state.
2. Merchandise given gratis or payment made to an agent, retail dealer or wholesale dealer by the manufacturer thereof for display, or advertising, or promotion purposes, or otherwise, shall not be considered in determining the cost of cigarettes to the agent, retail dealer or wholesale dealer.
(b) In all advertisements, offers for sale or sales involving two or more items, at least one of which items is cigarettes, at a combined price, and in all advertisements, offers for sale, or sales involving the giving of any gift or concession of any kind whatsoever (whether it be coupons or otherwise), the agent's, retail dealer's or wholesale dealer's combined selling price shall not be below the cost of the agent, the cost of the retail dealer or the cost of the wholesale dealer, respectively, of the total costs of all articles, products, commodities, gifts and concessions included in such transactions.
(c) When one wholesale dealer sells cigarettes to any other wholesale dealer, the former shall not be required to include in his selling price to the latter, the cost of the wholesale dealer, as defined by paragraph two of subdivision (b) of section four hundred eighty-three of this article, except that no such sale shall be made at a price less than the cost of the agent for sales to wholesale dealers as defined by paragraph one of subdivision (b) of section four hundred eighty-three of this article, but the latter wholesale dealer, upon resale to a retail dealer, shall be deemed to be the wholesale dealer governed by the provisions of paragraph two of subdivision (b) of section four hundred eighty-three of this article.
(d) When one agent sells cigarettes to any other agent, the former shall not be required to include in his selling price to the latter, the cost of the agent, as defined by paragraph one of subdivision (b) of section four hundred eighty-three of this article, except that no such sale shall be made at a price less than the basic cost of cigarettes, as defined by paragraph one of subdivision (a) of section four hundred eighty-three, but the latter agent, upon resale of such cigarettes, shall be deemed to be the agent governed by paragraph one of subdivision (b) of section four hundred eighty-three of this article. Cigarettes sold by an agent to an agent must be picked up at the warehouse of the selling agent, or delivered to the warehouse of the purchasing agent.
Last modified: February 3, 2019