Although the State of New York refuses to publicly state as much, the tax department has instructed its agents to leave Native brands of tobacco products alone. Over a dozen scenarios described in an inter-department memo states "DON'T SEIZE" on all but one. Only if "Non Native Americans, Middle Eastern and Foreign Nationals running a business in NYS and who are found selling untaxed native American made cigarettes at retail outlets such as bodegas etc.
Seize the untaxed cigarettes whether they are premium or Native American brand.
It is interesting that it wasn't enough to reference "Non Native Americans", but they had to add "Middle Eastern and Foreign Nationals". I think they would have been covered by "Non Native American". Is this to single them out or to suggest a connection between the sale of Native brands and Jihadists?
New York Senators George Maziarz and Tim Kennedy still have not gotten a response from the tax department asking for exactly what this memo calls out so are stae representatives and the public to assume this is the response? Who knows. It certainly does not appear the governor's call to change the way things are done in Albany has gone into effect yet. The state is still dysfunctional. When two state senators can't get answers to a relatively simple request of the tax department that clearly have an answer to, something is clearly still broke.
Here is the content of the letter that Mr. Maziarz and Kennedy sent to the state's tax commissioner:
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.
Sincerely
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.
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