Sec. 89.2. Definition

Tax Law, § 470

Any term defined in this Subchapter relating to the cigarette tax shall have the same meaning when used with respect to the tobacco products tax. For purposes of the tobacco products tax, the following terms shall have the meanings indicated below.

(a) Tobacco products shall have the same meaning as is found in section 470(2) of the Tax Law.

(b) Wholesale price.

(1) Wholesale price means the established price for which a manufacturer sells a tobacco product to a distributor, before the allowance of any discount, trade allowance, rebate or other reduction. In the absence of such an established price, the manufacturer's invoice price for any tobacco product shall be presumptive evidence of the wholesale price of such tobacco product. In the absence of both the manufacturer's established price and the manufacturer's invoice price, the price at which the tobacco product was purchased shall be presumed to be the wholesale price. Whether the manufacturer' s established price, the manufacturer's invoice price or the purchase price is utilized, the wholesale price shall be the invoice cost without allowance of any quantity discount, cash discount or any other reduction. If tobacco products are transferred at no charge, gratis or are otherwise listed as free goods, it is in effect a discount and the ordinary or usual wholesale price of such products must be added to the invoice to arrive at the total wholesale price subject to tax. Charges for freight, insurance, customs, duties and other similar charges necessary to effectuate delivery, if separately stated on the invoice, are not included in the wholesale price. However, Federal excise taxes paid by the manufacturer are included in the wholesale price. Such manufacturer' s invoice price or such purchase price, as the case may be, shall be presumed to be the wholesale price, unless evidence of a lower wholesale price is established, or any industry standard of markups relating to the purchase price in relation to the wholesale price is established.

(2) The Department of Taxation and Finance may determine the wholesale price of any tobacco product based upon such evidence as may be presented by any person with an interest therein or such information as may be otherwise available. The department may require any appointed distributor of tobacco products and any applicant for appointment as such to submit a schedule containing the description, trade/brand name and wholesale price of every tobacco product imported or caused to be imported into this State for sale, manufactured in this State or sold, shipped or delivered to any person within the State by such distributor or applicant.

(c) Distributor means:

(1) any person who imports or causes to be imported into this State any tobacco product (in excess of 50 cigars or 1 pound of tobacco) for sale:

(2) any person who manufactures any tobacco product in this State; and

(3) any person who is authorized by the Commissioner of Taxation and Finance to make returns and pay tax on tobacco products sold, shipped or delivered by such person to any other person in this State (hereinafter an authorized shipper).

Application for appointment as a distributor of tobacco products must be made on a form prescribed by the department for such purpose and a distributor may be required to file a bond or deposit other acceptable security as a condition of appointment. Where a distributor is also a wholesale dealer of tobacco products as defined in subdivision (d) of this section, such distributor must procure a wholesale dealer's license.

(d) Dealer, for purposes of Article 3 of this Subchapter, means any wholesale dealer or retail dealer of tobacco products. A wholesaler dealer of tobacco products is any person who sells tobacco products in New York State to retail dealers or to any other persons for purposes of resale, and any person who owns, operates or maintains tobacco product vending machines in, at or upon premises located in this State that are owned or occupied by any other person. Every wholesale dealer of tobacco products must procure a wholesale dealer' s license and register any individual tobacco product vending machines it may own/operate with the department (see sections 480 and 480-a of the Tax Law). A retail dealer of tobacco products is any person other than a wholesale dealer of tobacco products who sells such products in New York State. A retail dealer of tobacco products is required to register as a retail dealer and to register any individual tobacco product vending machines it may own/operate in order to sell tobacco products at retail in this State (see section 480-a of the Tax Law). If a wholesale dealer or retail dealer is also a distributor, such wholesale dealer or retail dealer is required to be appointed as a distributor. (See also, Part 73 of this Title for retail dealer and vending machine registrations.)