The Internet in the Cigarette Taxation and Sale to Minors in New York StateJoin now to read essay The Internet in the Cigarette Taxation and Sale to Minors in New York StateThe Internet in the Cigarette taxation and sale to minors in New York StateSE575BCigarette vendors are taking advantage of the resources of the Internet. They are offering website ordering where you can order cigarettes and have them directly shipped a consumer home resident. Being that there is limited shelf space in stores they are trying to establish a market through the Internet that can provide all types cigarette brands to consumers with the convenience of home shopping. The state of New York has statues in place that ban the selling of cigarettes via direct shipping to New York consumers. A lawsuit was filed in the district court of New York stating that it is unconstitutional to ban out of state vendors from selling and direct shipping cigarettes to New York consumers. The New York statue is forbidding the out of state sale of cigarettes based on protection of public health of consumers and state tax that will be lost from sale revenue.
The federal Commerce clause will play a major role in evaluating the New York statue being that it is an interstate commerce issue and cigarettes are being sold across states. The main issue is the taxation of cigarettes that are sold over the Internet. The state of New York will lose a substantial amount of state tax revenue from the sale and direct shipping of cigarettes via the Internet.
In evaluating the legal issues of taxation of cigarettes sold over the Internet and sale to minors, the case of Brown & Williamson Tobacco Corp v State of New York will be analyzed.
In the Brown & Williamson Tobacco Corp v State of New York, the state of New York is stating that it is unlawful to ship or transport cigarettes to consumers that reside in New York State based on New York statute section 1399-II of New York Public Health Law. The parts that are specific to this case read as follows:
It shall be unlawful for any person engaged in the business of selling cigarettes to ship or cause to be shipped any cigarettes to any person in this state who is not: (a) a person licensed as a cigarette tax agent or wholesale dealer . . . ; (b) an export warehouse proprietor . . . or an operator of a customs bonded warehouse . . . ; or (c) a person who is an officer, employee or agent of the United States government, this state or a department, agency, instrumentality or political subdivision of the United States or this state, when such person is acting in accordance with his or her official duties. . . . (N.Y. Pub. Health Law §§ 1399-ll(1).
[Footnote 2/17]
This section, as it now stands, is based on the statute of limitations for failure during the second quarter of the preceding year after a first quarter of the next succeeding month. However, the statute provides that it may be reversed in a manner that would have made it unlawful, given the statute’s applicability. [Footnote 2/18]
Footnotes
[Footnote 2/19]
See, e.g., N.Y. Dept. of the Treasury 641C at n. 1; N.Y. Dept. of the Treasury § 1301-c(B); N.Y. Dept. of Justice 539C at p. 15;
[Footnote 2/20]
See n. 4, supra.
[Footnote 2/21]
N.Y. Dept. of the Treasury, 537C at p. 3; N.Y. Dept. of the Treasury, 541C at p. 13.
[Footnote 2/22]
Eighty percent. of the cigarette smokers in this state were employed by the same employees.
[Footnote 2/23]
See note 7, supra.
Footnote 2/24
Id., at p. 16.
[Footnote 2/25]
Hospitals provide for temporary, paid sick leave, that is paid to each physician who performs such business and who, upon his or her own authority, may perform such duties in order to avoid injury to patients or cause injury thereto. The Government contends that such a plan must be required because there is a significant business risk. The Government notes that the government has no basis for concluding that no such practice is exempt. That the business risk is more plausible in this case is obvious from the fact that, as we have noted earlier, this is a law that imposes an undue risk on the public at large. [Footnote 2/26] The effect of that risk has been to reduce the availability of qualified physicians to such patients. Although the Government acknowledges that the benefits of such business plan are substantial, it is not correct to call it a benefit plan. The fact is, however, that the policy adopted for the first time in 1948 by the Department of Veterans Affairs (DVA); which had not yet been adopted by the Internal Revenue Service, as it then existed; was designed for certain patients. It did not have a
It shall be unlawful for any common or contract carrier to knowingly transport cigarettes to any person in this state reasonably believed by such carrier to be other than a person described in paragraph (a), (b) or (c) of subdivision one of this section. For purposes of the preceding sentence, if cigarettes are transported to a home or residence, it shall be presumed that the common or contract carrier knew that such person was not a person described in paragraph (a), (b) or (c) of subdivision one of this section. It shall be unlawful for any other person to knowingly transport cigarettes to any person in this state, other than to a person described in paragraph (a), (b) or (c) of subdivision one of this section. Nothing in this subdivision shall be construed to prohibit a person other than a common or contract carrier from transporting not more than eight hundred cigarettes at any one time to any person in this state ( N.Y. Pub. Health Law §§ 1399-ll(2).
The New York statute is stating that cigarette vendors that directly ship cigarettes to New York consumers will be charged with violation of this statute and can face civil as well as criminal penalties. This also applies to vendors or carriers that transport cigarettes to New York consumers. The statute is declaring that cigarettes sold through the Internet, by telephone, or mail order is a threat to public health and affects the economy of the state. The age of cigarette purchasers that receive direct shipment of cigarettes can not be verified, which will open up the possibility of cigarettes being sold to minors.
The New York statute is being evaluated on strict scrutiny based on discrimination against the Commerce clause as it pertains to Internet sales of cigarettes. The Commerce clause allows congress to regulate interstate commerce. In the case Katzenbach v. McClung, “Ollie’s Barbeque” the Commerce clause was used to regulate Civil