New York Assemblyman Bill Magee explains proposed cigarette tax bill

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Assemblyman William Magee spoke with Indian Country Today Aug. 27 about his proposed bill to tax cigarettes sold on sovereign tribal lands to non-Indians. He introduced the bill into the Assembly Aug. 13, five days after his earlier bill to enforce the collection of taxes from tribal nations was passed by the Senate as S. 8146-B.

Indian Country Today:It appears that your new bill – A. 11834 – would repeal the bill that you originated which just passed Aug. 8 – S. 8146-B.

William Magee: No, I don’t think it does that. It makes some changes like chapter amendments to it.

ICT: Well, it actually says it would repeal the bill.

Magee: It does? Well, that was not the intent.

ICT: I also spoke to Philip Morris and they said they helped you draft this bill.

Magee: Yes, they were supportive of it, yes. … The changes we made were basically at the request of the tobacco people, and the convenience store people – those that are supporting the idea of collecting these taxes.

ICT: So the new bill – A. 11834 – would require tax stamps on all packages of cigarettes, right?

Magee: Yes.

ICT: Basically, the tribal nations would be fronting tax money to the state of New York that would later be refunded to them?

Magee: Yes, and we have farmers all across the state who do the same thing with gasoline and diesel fuel that they’re not supposed to pay taxes on. They pay it and then they have to request it returned from the tax department so it isn’t singling out the Indians. It’s giving them a mechanism to recover the taxes they paid and it’s easier to have refunded.

ICT: Part of the proposed bill says the tax department would determine whether the requests for refunds were reasonable. How would they make that determination?

Magee: I don’t know. The department would have to develop some regulations, which is not uncommon, to make it happen.

ICT: The former law that there’s an injunction against (Section 471e as amended in 2006) required the tax department to formulate some regulations about coupons, right? But they haven’t done that, so the law isn’t in effect.

Magee: No, I guess not.

ICT: What would motivate them to develop regulations to determine whether the request for a refund from a tribe was reasonable?

Magee: Well, this bill would, because the intent of the bill is for the department to develop a way to make the refunds that should be made to Native Americans – Indians.

ICT: Right, but how would they know –

Magee: How would they know what?

ICT: – if a tribe sends in a refund request, how would they know?

Magee: I don’t know! They’d have to check it just like any other refunds that people get if they wanted to check it, if they had questions about it.

ICT: But how would they check it if a tribe said I sold 10 cartons of cigarettes to tribal members – how would they check that?

Magee: I imagine they’d have to determine how many packs of cigarettes a certain number of people could consume and if it was way beyond that they’d say, ‘Oh, wait a minute, this isn’t right.’ You know?

ICT: Do you think this law is going to go forward?

Magee: I hope so, but I can’t tell you that. It’s got to be introduced in the Senate.

ICT: But, Assemblyman Magee, is it not odd that you would introduce a bill that would repeal a bill you just passed?

Magee: I don’t think that this really repeals the bill.

ICT: But that’s what the language says.

Magee: But it’s already passed. It happened. If there are some other changes that need to be made, perhaps we can add them again in another way, which is what this [new] bill does.

ICT: Right, but if the language of the bill actually says repeals.

Magee: OK, it repeals! Alright, if that’s the way you want it!

ICT: It’s not the way I want it. It’s what the language says.

Magee: That’s alright. You can interpret it any way you want.

ICT: And you don’t think it would be discriminatory to …

Magee: No.

ICT: … to require tribes to collect taxes for the state even though the law says the non-Indian people who purchase these cigarettes are actually responsible for paying the tax?

Magee: There is no dispute that Native Americans – Indians – shouldn’t pay taxes. We all accept that. But the courts have ruled that doesn’t give them the right to sell products to others and not pay taxes to the state just like if I owned a convenience store and didn’t remit my sales tax, I violated the law.

ICT: But you don’t ask other states to collect taxes for your state.

Magee: I don’t know what you’re talking about. That’s a whole other thing.