Mandel Tobacco Co. v. State Tax Commission

58 A.D.2d 930, 397 N.Y.S.2d 23, 1977 N.Y. App. Div. LEXIS 13130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 1977
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Tax Commission which sustained the imposition of a tax on cigarettes pursuant to article 20 of the Tax Law. Petitioner, a wholesale deáler in tobacco products, as a registered agent of the State Tax Commission, is authorized to affix tax stamps on cigarettes (Tax law, § 472). In a burglary of petitioner’s premises, more than 32 cases of unstamped cigarettes were stolen. The sole issue herein is whether petitioner was properly held liable for the tax on those stolen cigarettes. The cigarette tax is imposed upon "all cigarettes possessed * * * for sale” (Tax Law, § 471, subd 1). While it is true that the "ultimate * * * liability for the tax shall be upon the consumer” (Tax Law, § 471, subd 2), the tax is clearly levied at the time the cigarettes are possessed for sale and, as such, we cannot say that respondent’s determination is not supported by substantial evidence or that it is arbitrary or capricious. As a practical matter, to accept the petitioner’s argument that the tax is not owing unless and until the stamps are physically affixed to the cigarettes would almost certainly encourage agents, in order to insure themselves against cigarette tax liability in the event of theft, to wait until the last minute before affixing the stamps. Such delay would, as respondent points out, hinder its inspection and enforcement efforts (see Lewiston-Auburn United Grocers v Johnson, 253 A2d 338 [Me]). Determination confirmed, and petition dismissed, without costs. Koreman, P. J., Greenblott, Main, Larkin and Herlihy, JJ., concur.