May 16, 2011
New York State Department of Taxation and Finance
Commissioner Thomas H. Mattox
Building 9, State Campus
Albany NY 12227
Dear Commissioner Mattox:
We write in today in reference to the regulations that have been issued for the collection of New York State Sales Tax on Native territories for sales of tobacco products made to individuals who are not Native Americans. In reading these regulations, it is clear that the issue of the sale of Native Brand cigarettes and tobacco products, which are produced on Native territories, are not addressed.
A call to your office yielded the response that this is a “gray area”. We respectfully disagree. There is currently no process in place to stamp Native cigarettes in order to effectuate sales tax collection, as can and is done with so called premium brands. It is our view that Native Brand cigarettes, which are produced and sold on lands owned by Native Nations, constitutes commerce that is essentially Native to Native, and therefore cannot be regulated or taxed by the State of New York. This issue is completely separate and apart from the Departments and the Courts contention that sales tax can and should be collected for the sales of premium brands to non-Native individuals, even when such sales are made on Native territories.
It is our view that the State should not pursue an effort to collect taxes on Native Brands because such an effort would be contrary to the sovereign rights of the Native American Nations, and would be a severe blow to the Native retail economy.
Since the regulations issued in the wake of the recent court ruling are silent on this issue, we request that you provide clarification to us as soon as possible and in writing. It is very important that all of the citizens of the State of New York and their elected representatives know what the intention of your Department is with regard to the collection of State taxes on Native Brand cigarettes and tobacco products.
We look forward to your timely reply and toward working with you to resolve this important issue.
Senator George Maziarz, 62nd Senate District Senator Tim Kennedy, 58th Senate District
Clearly a timely response has not been forth coming. In fact, thus far, no response other than the memo at the top has come.