Appeals Court Issues Another Stay In Cigarette-tax Battle | Cigaretteson.net Tobacco News

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Appeals Court Issues Another Stay In Cigarette-tax Battle

A Native American tribe on Thursday secured another stay blocking New York State from collecting taxes on cheap smokes sold at reservation stores to non-tribal members.

The stay was issued one day after a state Supreme Court judge in Erie County lifted a previous stay on the tax law's enforcement. Attorneys for the Seneca Nation of Indians immediately appealed to the Appellate Division, Fourth Department.

On Thursday morning, Associate Justice Jerome Gorski granted the stay, which prevents the state from collecting $4.35 on each pack Seneca Nation retailers sell to non-members. The order is in effect until June 20.

In Wednesday's decision, Justice Donna Siwek noted that New York's tax policy "is required to strike the difficult balance between the state's objectives with regards to the sovereignty of Indian nations and the general welfare of the people of the state of New York."

The cigarette tax both promotes public health and generates revenue, her opinion said, and "the state loses approximately $110 million per year in uncollected sales tax revenue for on-reservation sales to non-Indians."

The Seneca Nation contends that the tax threatens their sovereignty as well as their access to tax-free cigarettes for personal use.

"If New York state courts eventually allow this New York state law to stand, it will have two primary results," Seneca Nation President Robert Odawi Porter said in a statement. "One, good-paying retail jobs, selling a legal product in Western New York, will be lost; and, two, there will be no change in the Seneca Nation's stand that it will never collect or impose sales taxes for New York State. If the nation's businesses need to shift their product mix to render such onerous tax laws moot, they will."

The Attorney General's Office declined comment on the restraining order.

$500,000 A DAY

New York's legislature amended the tax law last year. Under the amendment, the wholesale price of taxable cheap cigarettes includes the cost of the tax, according to court papers. Tribal retailers would pay the tax to wholesalers when purchasing inventory and recoup the money by adding it to the retail price. There would be a set number of tax-free cartons for the tribe's members to consume.

The state stands to collect about $500,000 a day in additional revenue from the cigarette tax, the Attorney General's office has said.

The law was originally slated to take effect Sept. 1, 2010, but several Indian tribes filed suit in federal court last August to preclude enforcement. After two federal courts granted a stay, the U.S. Court of Appeals for the Second Circuit vacated all orders staying enforcement.

The Seneca Nation turned to state court, arguing that the Department of Taxation and Finance failed to comply with the State Administrative Procedure Act before attempting to enforce a rule to implement the amendments. It also contended that the department failed to prepare statements addressing the job and regulatory impacts the rule would have on Indian nations, reservations and related businesses.

The state argued that the legislation, not the rule, is the focus of the plaintiffs' complaints, and that it substantially complied with the Administrative Procedure Act in adopting the rule.

Siwek agreed, noting that the amended tax law sets forth in detail the means and methodology by which the state shall collect the cigarette taxes, and the legislative directive left the department with little flexibility or discretion.

"The New York State Legislature declared and dictated this taxing scheme, not the department," she wrote.

The case is Seneca Nation of Indians v. New York State et al, New York Supreme Court, Erie County, No. 714-2011.

For Seneca Nation: Carol Heckman and David Archer of Harter Secrest & Emery.

For New York State et al: Andrew Bing and Darren Longo of the New York State Attorney General's Office.

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