§ 1 — No title

An act to enable any city of the state having a population of one\nmillion or more to adopt, and amend local laws, imposing certain\nspecified types of taxes on cigarettes, cigars and smoking tobacco which\nthe legislature has or would have power and authority to impose, to\nprovide for the review of such taxes, and to limit the application of\nsuch local laws\n Section 1. (1) Notwithstanding any other provision of law to the\ncontrary, any city of the state having a population of one million or\nmore inhabitants, acting through its local legislative body, is hereby\nauthorized and empowered to adopt and amend local laws imposing in any\nsuch city taxes on cigarettes, cigars or smoking tobacco such as the\nlegislature has or would have power and authority to impose. Such taxes\nmay be collected and administered by the fiscal officers of such city by\nsuch means and in such manner as may be provided by such local laws. The\ntaxes may be imposed on the use, sale, exchange, transfer, storage,\nwithdrawal, possession or retention of cigarettes, cigars or smoking\ntobacco, provided, however, that nothing in this act shall authorize the\nimposition of a tax on the use, possession or retention (otherwise than\nfor sale) of two hundred cigarettes or less, of fifty cigars or less or\nof two pounds of smoking tobacco or less brought into the city on, or in\npossession of, any person.\n * (a) The rate of such tax on cigarettes shall not exceed seventy-five\ncents for each ten cigarettes or fraction thereof, provided, however,\nthat if a package of cigarettes contains more than twenty cigarettes,\nthe rate of tax on the cigarettes in such package in excess of twenty\nshall be thirty-eight cents for each five cigarettes or fraction\nthereof. Such tax is intended to be imposed only once on the same\npackage of cigarettes.\n * NB Effective until December 31, 2020\n * (a) The basic rate of such tax on cigarettes shall not exceed two\ncents for each ten cigarettes or fraction thereof and is intended to be\nimposed only once on the same package of cigarettes; in addition to such\ntax there may be imposed an additional tax at the following rates\n (1) One and one-half cents for each ten cigarettes where either their\ntar content exceeds seventeen milligrams per cigarette or their nicotine\ncontent exceeds one and one-tenth milligrams per cigarette;\n (2) Two cents for each ten cigarettes where their tar content exceeds\nseventeen milligrams per cigarette and their nicotine content exceeds\none and one-tenth milligrams per cigarette.\n * NB Effective December 31, 2020\n (b) The rate of such tax on cigars shall not exceed one cent on each\ncigar sold at a price of not less than seven cents and not more than\nfifteen cents; two cents on each cigar sold at a price of not less than\nsixteen cents and not more than twenty-nine cents; and three cents on\neach cigar sold at a price of thirty cents or more. Where more than one\ncigar is sold, whether or not in a package, box or container, such tax\nshall be applied to each cigar on the basis of the price applicable to\neach cigar. The tax shall not be applicable to cigars sold at a price\nless than seven cents a cigar.\n (c) The rate of such tax on smoking tobacco shall not exceed one cent\nfor each twenty cents or fraction thereof of the price at which such\nsmoking tobacco is sold.\n (2) As used herein, the term "cigarette" shall mean and include (a)\nany roll for smoking made wholly or in part of tobacco or of any other\nsubstance wrapped in paper or in any other substance not containing\ntobacco, and (b) any roll for smoking made wholly or in part of tobacco\nwrapped in any substance containing tobacco that, because of its\nappearance, the type of tobacco used in the filler, or its packaging and\nlabeling, is likely to be offered to, or purchased by, consumers as a\ncigarette described in paragraph (a) of this subdivision. However, a\nroll will not be considered to be a cigarette for purposes of paragraph\n(b) of this subdivision if it is not treated as a cigarette for federal\nexcise tax purposes under the applicable federal statute in effect on\nApril first, two thousand eight. The term "cigar" does not include any\ncigarette as defined in this subdivision.\n (3) A tax imposed hereunder shall have application only within the\nterritorial limits of any such city and shall be in addition to any and\nall other taxes. The method of collecting any tax imposed hereunder,\neither with or without adhesive or meter stamps, shall be subject to the\napproval of the state tax commission.\n (4) Any tax imposed hereunder shall be refunded whenever any\ncigarettes upon which the tax has been paid have been sold and shipped\ninto another state for sale or use there.\n (5) No tax imposed pursuant to this section shall apply to the sale of\ncigarettes under such circumstances that this state is without power to\nimpose such tax or to cigarettes sold to the United States or to\ncigarettes sold to or by a voluntary unincorporated organization of the\narmed forces of the United States operating a place for the sale of\ngoods pursuant to regulations promulgated by the appropriate executive\nagency of the United States.\n (6) Any final determination of the amount of any tax payable hereunder\nshall be reviewable for error, illegality or unconstitutionality or any\nother reason whatsoever by a proceeding under article seventy-eight of\nthe civil practice law and rules if application therefor is made to the\nsupreme court within four months after the giving of the notice of such\nfinal determination, provided, however, that any such proceeding under\narticle seventy-eight of the civil practice law and rules shall not be\ninstituted by a person liable for the tax unless the amount of any tax\nsought to be reviewed, with such interest and penalties thereon as may\nbe provided for by local law or regulation, shall be first deposited and\nan undertaking filed, in such amount and with such sureties as a justice\nof the supreme court shall approve to the effect that if such proceeding\nbe dismissed or the tax confirmed such person will pay all costs and\ncharges which may accrue in the prosecution of such proceeding.\n (7) Where any tax imposed hereunder shall have been erroneously,\nillegally or unconstitutionally collected and application for the refund\nthereof duly made to the proper fiscal officer or officers, and such\nofficer or officers or, in the case of a city of one million or more\nwhich has established tax appeals tribunal, such tax appeals tribunal,\nshall have made a determination denying such refund, such determination\nshall be reviewable by a proceeding under article seventy-eight of the\ncivil practice law and rules, provided, however, that such proceeding is\ninstituted within four months after the giving of the notice of such\ndenial, that a final determination of tax due was not previously made,\nand that an undertaking is filed with the proper fiscal officer or\nofficers in such amount and with such sureties as a justice of the\nsupreme court shall approve to the effect that if such proceeding be\ndismissed or the tax confirmed, the person liable for the tax will pay\nall costs and charges which may accrue in the prosecution of such\nproceeding.\n (8) Except in the case of a wilfully false or fraudulent return with\nintent to evade the tax, no assessment of additional tax shall be made\nwith respect to taxes imposed hereunder after the expiration of more\nthan three years from the date of the filing of a return, provided,\nhowever, that where no return has been filed as provided by law the tax\nmay be assessed at any time.\n