An act to enable any city of the state having a population of one
million or more to adopt, and amend local laws, imposing certain
specified types of taxes on cigarettes, cigars and smoking tobacco which
the legislature has or would have power and authority to impose, to
provide for the review of such taxes, and to limit the application of
such local laws
Section 1. (1) Notwithstanding any other provision of law to the
contrary, any city of the state having a population of one million or
more inhabitants, acting through its local legislative body, is hereby
authorized and empowered to adopt and amend local laws imposing in any
such city taxes on cigarettes, cigars or smoking tobacco such as the
legislature has or would have power and authority to impose. Such taxes
may be collected and administered by the fiscal officers of such city by
such means and in such manner as may be provided by such local laws. The
taxes may be imposed on the use, sale, exchange, transfer, storage,
withdrawal, possession or retention of cigarettes, cigars or smoking
tobacco, provided, however, that nothing in this act shall authorize the
imposition of a tax on the use, possession or retention (otherwise than
for sale) of two hundred cigarettes or less, of fifty cigars or less or
of two pounds of smoking tobacco or less brought into the city on, or in
possession of, any person.
* (a) The rate of such tax on cigarettes shall not exceed 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 is intended to be imposed only once on the same
package of cigarettes.
* NB Effective until December 31, 2020
* (a) The basic rate of such tax on cigarettes shall not exceed two
cents for each ten cigarettes or fraction thereof and is intended to be
imposed only once on the same package of cigarettes; in addition to such
tax there may be imposed an 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, 2020
(b) The rate of such tax on cigars shall not exceed one cent on each
cigar sold at a price of not less than seven cents and not more than
fifteen cents; two cents on each cigar sold at a price of not less than
sixteen cents and not more than twenty-nine cents; and three cents on
each cigar sold at a price of thirty cents or more. Where more than one
cigar is sold, whether or not in a package, box or container, such tax
shall be applied to each cigar on the basis of the price applicable to
each cigar. The tax shall not be applicable to cigars sold at a price
less than seven cents a cigar.
(c) The rate of such tax on smoking tobacco shall not exceed one cent
for each twenty cents or fraction thereof of the price at which such
smoking tobacco is sold.
(2) As used herein, the term "cigarette" shall mean and include (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
appearance, the type of tobacco used in the filler, or its packaging and
labeling, is likely to be offered to, or purchased by, consumers as a
cigarette described in paragraph (a) of this subdivision. However, a
roll will not be considered to be a cigarette for purposes of paragraph
(b) of this subdivision if it is not treated as a cigarette for federal
excise tax purposes under the applicable federal statute in effect on
April first, two thousand eight. The term "cigar" does not include any
cigarette as defined in this subdivision.
(3) A tax imposed hereunder shall have application only within the
territorial limits of any such city and shall be in addition to any and
all other taxes. The method of collecting any tax imposed hereunder,
either with or without adhesive or meter stamps, shall be subject to the
approval of the state tax commission.
(4) Any tax imposed hereunder shall 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.
(5) No tax imposed pursuant to this section shall apply to the sale of
cigarettes under such circumstances that this state is without power to
impose such 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 regulations promulgated by the appropriate executive
agency of the United States.
(6) Any final determination of the amount of any tax payable hereunder
shall be reviewable for error, illegality or unconstitutionality or any
other reason whatsoever by a proceeding under article seventy-eight of
the civil practice law and rules if application therefor is made to the
supreme court within four months after the giving of the notice of such
final determination, provided, however, that any such proceeding under
article seventy-eight of the civil practice law and rules shall not be
instituted by a person liable for the tax unless the amount of any tax
sought to be reviewed, with such interest and penalties thereon as may
be provided for by local law or regulation, shall be first deposited and
an undertaking filed, 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.
(7) Where any tax imposed hereunder shall have been erroneously,
illegally or unconstitutionally collected and application for the refund
thereof duly made to the proper fiscal officer or officers, and such
officer or officers or, in the case of a city of one million or more
which has established tax appeals tribunal, such tax appeals tribunal,
shall have made a determination denying such refund, such determination
shall be reviewable by a proceeding under article seventy-eight of the
civil practice law and rules, provided, however, that such proceeding is
instituted within four months after the giving of the notice of such
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 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, the person liable for the tax will pay
all costs and charges which may accrue in the prosecution of such
proceeding.
(8) 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
with respect to taxes imposed hereunder 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.
§ 2. Revenues resulting from the imposition of taxes authorized by
this act shall be paid into the treasury of any such city and shall be
credited to and deposited in the general fund of any such city, except
that, after the payment of refunds with respect to such taxes, effective
on and after July 2, 2002, 46.5 percent and, effective on and after
April 1, 2003, 46 percent of such revenues (including taxes, interest
and penalties) collected or received shall be paid to the state
comptroller. The state comptroller is hereby authorized and directed to
transfer all such amounts so paid to the credit of the tobacco control
and insurance initiatives pool to be distributed by the commissioner of
health in accordance with section 2807-v of the public health law.
Last modified: February 3, 2019