§ 483 — Definitions

§ 483. Definitions. (a) Any term which is defined by section four\nhundred seventy of this chapter shall have the same meaning when used in\nthis article, except that for purposes of this article the following\nterms shall have the meanings herein indicated:\n 1. "Basic cost of cigarettes" shall mean the invoice cost of\ncigarettes to the agent who purchases from the manufacturer, or the\nreplacement cost of cigarettes to the agent, in the quantity last\npurchased, whichever is lower, less all trade discounts, except\ndiscounts for cash, to which shall be added the full face value of any\nstamps which may be required by law.\n 2. "Wholesale dealer" shall mean any person, other than an agent, who\nsells cigarettes to retail dealers or other persons for purposes of\nresale only and who maintains a separate warehousing facility for the\npurpose of receiving and distributing cigarettes and conducting its\nwholesale business. If such person is also a retail dealer, such person\nshall maintain separate premises for such retail business. It shall not\ninclude a vending machine operator.\n 3. "Chain store" shall mean any person or persons who owns or\nmaintains fifteen or more retail outlets in New York state, having one\nhundred percent common ownership, through which cigarettes are sold at\nretail. Vending machine operators who sell cigarettes at not less than\nfifteen separate outlets shall be considered to be chain stores. It\nshall also include cooperative members, franchisees and large volume\noutlets. No person shall be considered to be a chain store unless such\nperson has been registered with the commissioner of taxation and finance\nas provided in section four hundred eighty-nine of this chapter.\n 4. "Retail dealer" means any person engaged in selling cigarettes at\nretail, and shall include a chain store, a wholesale dealer or an agent\nfor purposes of its sales of cigarettes to consumers.\n 5. "Cooperative member" shall mean any member of a "cooperative" as\ndefined in subdivision (c) of section three of the cooperative\ncorporations law, which operates a distribution center from which\nmembers purchase grocery products, including prepackaged food and\nnon-food products such as paper products, soaps and detergents for\nresale and whose members sell cigarettes at retail through fifteen or\nmore separate establishments in New York state. In order to qualify as a\n"cooperative member" for the purposes of this article, a dealer must\nshare in the profits and losses of the cooperative and must have\npurchased at least twenty-five percent of the merchandise it purchased\nfor resale during the preceding three months from such cooperative,\nexcluding cigarettes and petroleum products. Such volume of purchases\nshall be measured by the amount paid for such merchandise, prior to any\npatronage dividends or refunds based on patronage.\n The registrations of those cooperative members registered as chain\nstores prior to the effective date of the chapter of the laws of\nnineteen hundred ninety which added this paragraph shall not be revoked\nby reason of their failure to meet the twenty-five percent purchase\nrequirement, the requirement that a cooperative member belongs to a\ncooperative which operates a distribution center or the sharing in the\nprofits and losses requirement of this paragraph five, and upon each\nsuccessive reregistration pursuant to section four hundred eighty-nine\nof this chapter, such cooperative members shall not be subject to such\nrequirements, but shall be subject to all other requirements of this\narticle.\n 6. "Franchisee" shall mean any person or persons engaged in the sale\nof cigarettes as a retail dealer who is a "franchisee" as defined in\narticle thirty-three of the general business law, and whose franchisor\nfranchises fifteen or more separate retail establishments in New York\nstate through which cigarettes are sold.\n 7. "Large volume outlet operator" shall mean any person or persons who\nsell cigarettes at one or more retail outlets each of which had annual\ngross sales in the previous calendar year of more than two million\ndollars excluding petroleum products in this state.\n (b) 1. (A) The term "cost of the agent" shall mean the basic cost of\ncigarettes plus the cost of doing business by the agent as evidenced by\nthe accounting standards and methods regularly employed by said agent in\nhis determination of costs for the purpose of federal income tax\nreporting for the total operation of his establishment, and must\ninclude, without limitation, labor, including salaries of executives and\nofficers, rent, depreciation, selling costs, maintenance of equipment,\ndelivery costs, interest payable, all types of licenses, taxes,\ninsurance and advertising expressed as a percentage and applied to the\nbasic cost of cigarettes. Any fractional part of a cent in the cost to\nthe agent per carton of cigarettes shall be rounded off to the next\nhigher cent. In the case of sales at retail by an agent, the "cost of\nthe agent" shall be the same as the "cost of the retail dealer". In the\ncase of sales of cigarettes to a chain store having fifteen or more\nretail outlets, excluding vending machine operators, which are delivered\nto a central warehouse owned and operated by such chain store and which\nare delivered to its retail outlets by the chain store, the "cost of the\nagent" shall be presumed to be the basic cost of cigarettes. There shall\nbe determined a separate cost of the agent for sales to wholesale\ndealers and for sales to retail dealers.\n (B) In the absence of the filing with the commissioner of satisfactory\nproof of a lesser cost of doing business of the agent making the sale,\nthe cost of doing business by the agent shall be presumed to be\nseven-eighths of one percent of the basic cost of cigarettes for sales\nto wholesale dealers plus one cent per package of ten cigarettes, two\ncents per package of twenty cigarettes and in the case of a package\ncontaining more than twenty cigarettes, two cents and one-half of a cent\nfor each five cigarettes in excess of twenty cigarettes, one and\none-half percent of the basic cost of cigarettes for sales to chain\nstores plus one cent per package of ten cigarettes, two cents per\npackage of twenty cigarettes and in the case of a package containing\nmore than twenty cigarettes, two cents and one-half of a cent for each\nfive cigarettes in excess of twenty cigarettes and three and\nseven-eighths percent of the basic cost of cigarettes with respect to\nsales to retail dealers plus one cent per package of ten cigarettes, two\ncents per package of twenty cigarettes and in the case of a package\ncontaining more than twenty cigarettes, two cents and one-half of a cent\nfor each five cigarettes in excess of twenty cigarettes and the\nforegoing cents per pack shall be included in the "cost of doing\nbusiness by the agent" referred to in paragraphs two and three of this\nsubdivision.\n 2. (A) The term "cost of the wholesale dealer" shall mean the basic\ncost of cigarettes plus the cost of doing business by the wholesale\ndealer as evidenced by the accounting standards and methods regularly\nemployed by said wholesale dealer in his determination of costs for the\npurpose of federal income tax reporting for the total operation of his\nestablishment, and must include, without limitation, labor, including\nsalaries of executives and officers, rent, depreciation, selling costs,\nmaintenance of equipment, delivery costs, interest payable, all types of\nlicenses, taxes, insurance and advertising expressed as a percentage and\napplied to the basic cost of cigarettes, plus the cost of doing business\nby the agent with respect to sales of cigarettes to wholesale dealers.\nAny fractional part of a cent in the cost to the wholesale dealer per\ncarton of cigarettes shall be rounded off to the next higher cent. In\nthe case of sales at retail by a wholesale dealer, the "cost of the\nwholesale dealer" shall be the same as the "cost of the retail dealer".\nThere shall be determined a separate cost of the wholesale dealer for\nsales to chain stores and for sales to retail dealers.\n (B) In the absence of the filing with the tax commission of\nsatisfactory proof of a lesser cost of doing business of the wholesale\ndealer making the sale, the cost of doing business by the wholesale\ndealer with respect to sales to retail dealers shall be presumed to be\nthree per centum of the basic cost of cigarettes, and with respect to\nsales to chain stores, five-eighths of one percent of the basic cost of\ncigarettes.\n 3. (A) The term "cost of the retail dealer" shall mean the basic cost\nof cigarettes plus the cost of doing business by the retail dealer as\nevidenced by the accounting standards and methods regularly employed by\nsaid retail dealer in his determination of costs for the purpose of\nfederal income tax reporting for the total operation of his\nestablishment, and shall include, without limitation, labor, including\nsalaries of executives and officers, rent, depreciation, selling costs,\nmaintenance of equipment, delivery costs, interest payable, all types of\nlicenses, taxes, insurance and advertising expressed as a percentage and\napplied to the basic cost of cigarettes, plus the cost of doing business\nby the agent with respect to sales of cigarettes to retail dealers. Any\nfractional part of a cent in the cost to the retail dealer per package\nor per carton shall be rounded off to the next higher cent.\n (B) In the absence of the filing with the commissioner of taxation and\nfinance of satisfactory proof of a lesser cost of doing business by the\nretail dealer making the sale, the cost of doing business by the retail\ndealer shall be presumed to be seven per centum of the sum of the basic\ncost of cigarettes plus the cost of doing business by the agent with\nrespect to cigarettes sold to retail dealers.\n