N.Y. Tax Law 1121 – Refunds and credits with respect to cigarettes
§ 1121. Refunds and credits with respect to cigarettes. (a) Retail vendor. (1) A vendor of cigarettes who or which is required to collect the taxes imposed by subdivision (a) of section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter shall be allowed a refund or credit against the amount of tax collected and required to be remitted to the commissioner pursuant to the provisions of section eleven hundred thirty-seven of this article upon the retail sale of cigarettes in the amount of the tax on such cigarettes prepaid by or passed through to and included in the price paid by such vendor pursuant to the provisions of section eleven hundred three of this article.
Terms Used In N.Y. Tax Law 1121
- Article: means a prose composition, including commentaries, reviews, editorials, op-eds, letters to the editor, and reader comments on articles. See N.Y. Tax Law 1101
- person: includes an individual, partnership, limited liability company, society, association, joint stock company, corporation, estate, receiver, trustee, assignee, referee, and any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of the foregoing. See N.Y. Tax Law 1101
- vendor: includes :
(A) A person making sales of tangible personal property or services, the receipts from which are taxed by this article;
(B) A person maintaining a place of business in the state and making sales, whether at such place of business or elsewhere, to persons within the state of tangible personal property or services, the use of which is taxed by this article;
(C) A person who solicits business either:
(I) by employees, independent contractors, agents or other representatives; or
(II) by distribution of catalogs or other advertising matter, without regard to whether such distribution is the result of regular or systematic solicitation, if such person has some additional connection with the state which satisfies the nexus requirement of the United States constitution; and by reason thereof makes sales to persons within the state of tangible personal property or services, the use of which is taxed by this article;
(D) A person who makes sales of tangible personal property or services, the use of which is taxed by this article, and who regularly or systematically delivers such property or services in this state by means other than the United States mail or common carrier;
(E) A person who regularly or systematically solicits business in this state by the distribution, without regard to the location from which such distribution originated, of catalogs, advertising flyers or letters, or by any other means of solicitation of business, to persons in this state and by reason thereof makes sales to persons within the state of tangible personal property, the use of which is taxed by this article, if such solicitation satisfies the nexus requirement of the United States constitution;
(F) A person making sales of tangible personal property, the use of which is taxed by this article, where such person retains an ownership interest in such property and where such property is brought into this state by the person to whom such property is sold and the person to whom such property is sold becomes or is a resident or uses such property in any manner in carrying on in this state any employment, trade, business or profession;
(G) Any other person making sales to persons within the state of tangible personal property or services, the use of which is taxed by this article, who may be authorized by the commissioner of taxation and finance to collect such tax by part IV of this article;
(H) The state of New York, any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to agreement or compact with another state or Canada) or political subdivisions when such entity sells services or property of a kind ordinarily sold by private persons; and
(I) A seller of tangible personal property or services, the use of which is taxed by this article if either (I) an affiliated person that is a vendor as otherwise defined in this paragraph uses in the state trademarks, service marks, or trade names that are the same as those the seller uses; or (II) an affiliated person engages in activities in the state that inure to the benefit of the seller, in its development or maintenance of a market for its goods or services in the state, to the extent that those activities of the affiliate are sufficient to satisfy the nexus requirement of the United States constitution. See N.Y. Tax Law 1101
(2) A refund or credit shall also be allowed such vendor for the tax prepaid by or passed through to and included in the price paid by such vendor upon any cigarettes pursuant to the provisions of section eleven hundred three of this article if such cigarettes are sold at retail by such vendor under circumstances where the taxes imposed by section eleven hundred five of this article and pursuant to the authority of article twenty-nine of this chapter are not required by the provisions of this article to be collected and remitted upon receipts from a retail sale thereof.
(b) Retail user. A person who or which is required to pay the tax imposed by section eleven hundred ten of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter with respect to the purchase or use of such cigarettes shall be allowed a credit against such tax required to be paid to the commissioner pursuant to such section and article in the amount of the tax prepaid by or passed through to and included in the price paid by such purchaser or user pursuant to the provisions of section eleven hundred three of this article.
(c) Self-use of cigarettes purchased at wholesale. A refund or credit equal to the amount of tax prepaid by or passed through to and included in the price paid by a purchaser or user pursuant to the provisions of section eleven hundred three of this article with respect to a purchase of cigarettes other than at retail shall be allowed such purchaser or user upon the use of such cigarettes at retail if the purchase or use of such cigarettes by the purchaser or user is exempt pursuant to section eleven hundred fifteen or section eleven hundred sixteen of this article.
(d) Export, destruction, tax paid in error. Whenever any cigarettes upon which the prepaid tax imposed by section eleven hundred three of this article has been paid have been sold and shipped to another state for sale or use there or have become unfit for use or unsalable, or have been destroyed, or whenever the commissioner shall have determined that any tax required to be prepaid by such section eleven hundred three shall have been paid in error, the agent or dealer, as the case may be, shall be entitled to a refund or credit of the actual amount of prepaid tax so paid with respect to cigarettes which will not be possessed for sale or use in this state.
(e) Refunds of the tax required to be prepaid pursuant to the provisions of section eleven hundred three of this article shall be allowed only to the extent such tax paid by or passed through to the retail vendor, or the purchaser or user, exceeds the amount of tax required to be collected from such person or required to be remitted by the provisions of this article and pursuant to the authority of article twenty-nine of this chapter.
(f) A refund or credit shall be allowed under this section only to the extent that the tax required to be prepaid pursuant to section eleven hundred three of this article has been prepaid by or passed through to such vendor, purchaser or user, but only to the extent that the tax imposed by section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter together with the tax imposed by section eleven hundred ten of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter required to be paid, collected and remitted has been paid, collected and remitted.
(g) Such refunds and credits shall be subject to the provisions of sections eleven hundred nineteen and eleven hundred thirty-nine of this article as if such sections were incorporated in full into this section and had expressly referred to the refunds and credits authorized by this section including the periods of limitations on payments and applications to the commissioner; provided, however, that, as provided in subdivision (e) of section eleven hundred thirty-nine of this article, no interest shall be allowed or paid upon any refund made or credit allowed pursuant to subdivisions (a), (b) and (d) of this section. The commissioner shall process applications for refund as expeditiously as possible.