§ 498 — Imposition of excise tax

§ 498. Imposition of excise tax. (a) There is hereby imposed an excise\ntax on the first sale of every opioid unit in the state at the following\nrates: (1) a quarter of a cent per morphine milligram equivalent where\nthe wholesale acquisition cost is less than fifty cents, or (2) one and\none-half cents per morphine milligram equivalent where the wholesale\nacquisition cost is fifty cents or more; except that such tax shall not\napply when such first sale is to any program operated pursuant to\narticle forty of the public health law and article thirty-two of the\nmental hygiene law. The tax imposed by this article shall be charged\nagainst and paid by the registrant making such first sale, and shall\naccrue at the time of such sale. For the purpose of the proper\nadministration of this article and to prevent evasion of the tax hereby\nimposed, it shall be presumed that any sale of an opioid unit in this\nstate by a registrant is the first sale of such in the state until the\ncontrary is established, and the burden of proving that any sale is not\nthe first sale in the state shall be upon the registrant.\n (b) Every registrant liable for the tax imposed by this article shall\nfile with the commissioner a return on forms to be prescribed by the\ncommissioner showing the total morphine milligram equivalent and\nwholesale acquisition costs of such opioid units that are subject to the\ntax imposed by this article, the amount of tax due thereon, and such\nfurther information as the commissioner may require. Such returns shall\nbe filed for quarterly periods ending on the last day of March, June,\nSeptember and December of each year. Each return shall be filed within\ntwenty days after the end of such quarterly period and shall cover all\nopioid sales in the state made in the prior quarter, except that the\nfirst return required to be filed pursuant to this section shall be due\non January twentieth, two thousand twenty, and shall cover all opioid\nsales occurring in the period between the effective date of this article\nand December thirty-first, two thousand nineteen. Every registrant\nrequired to file a return under this section shall, at the time of\nfiling such return, pay to the commissioner the total amount of tax due\nfor the period covered by such return. If a return is not filed when\ndue, the tax shall be due the day on which the return is required to be\nfiled. The commissioner may require that the returns and payments\nrequired by this section be filed or paid electronically.\n (c) Where a sale of an opioid unit by a registrant has been cancelled\nby the purchaser and tax thereon was previously paid by the registrant,\nthe commissioner shall allow to the registrant a refund or credit of\nsuch tax on a return for a later period subject to the limitations\nperiod for claiming a refund or credit as prescribed by section one\nthousand eighty-seven of this chapter. Where a registrant proves that an\nopioid unit for which it previously paid a tax has been distributed out\nof the state for use or consumption outside this state, the commissioner\nshall allow a credit to the registrant for tax paid on a return for a\nlater period subject to the limitations period for claiming a credit as\nprescribed by section one thousand eighty-seven of this chapter.\n (d) All sales slips, invoices, receipts, or other statements or\nmemoranda of sale from any sale or purchase of opioid units by\nregistrants must be retained for a period of six years after the due\ndate of the return to which they relate, unless the commissioner\nprovides for a different retention period by rule or regulation. Such\nrecords must be sufficient to determine the number of units transferred\nalong with the morphine milligram equivalent of the units transferred,\nand otherwise be suitable to determine the correct amount of tax due.\nSuch records must also record either (1) the address from which the\nunits are shipped or delivered, along with the address to which the\nunits are shipped or delivered, or (2) the place at which actual\nphysical possession of the units is transferred. Such records shall be\nproduced upon demand by the commissioner.\n (e) The provisions of article twenty-seven of this chapter shall apply\nto the tax imposed by this article in the same manner and with the same\nforce and effect as if the language of such article had been\nincorporated in full into this article and had expressly referred to the\ntax imposed by this article, except to the extent that any provision of\nsuch article twenty-seven is either inconsistent with a provision of\nthis article or is not relevant to this article.\n (f) The commissioners of education and health shall cooperate with the\ncommissioner in administering this tax, including sharing with the\ncommissioner pertinent information about registrants upon the request of\nthe commissioner.\n (g) Each registrant shall provide a report to the department of health\ndetailing all opioids sold by such registrant in the state of New York.\nSuch report shall include:\n (i) the registrant's name, address, phone number, federal Drug\nEnforcement Agency (DEA) registration number, education department\nregistration number, and controlled substance license number issued by\nthe department of health, if applicable;\n (ii) the name, address and DEA registration number of the entity to\nwhom the opioid was sold;\n (iii) the date of the sale of the opioid;\n (iv) the gross receipt total, in dollars, for each opioid sold;\n (v) the name and National Drug Code of the opioid sold;\n (vi) the number of containers and the strength and metric quantity of\ncontrolled substance in each container of the opioid sold;\n (vii) the total number of morphine milligram equivalents sold; and\n (viii) any other elements as deemed necessary by the commissioner of\nhealth.\n Such information shall be reported annually in such form as defined by\nthe commissioner of health and shall not be subject to the provisions of\nsection four hundred ninety-nine of this article. With the exception of\nthe information collected under paragraph (ii) of this subdivision, the\ndepartment of health shall make the information collected in such\nreports available to the public in machine-readable formats and make it\npublicly available on the department of health's website annually.\n