Thursday, February 25, 2010

Re: Regs or Dregs?

As a follow up to our earlier post on the announcement that the state tax department was advancing regulations to enforce the tax laws against Indian retailers, we need to make the following additional point. These regs do not issue the tax coupons to the Indians that would provide the simplest and surest method of enforcement.

Under the announced regulatory scenario that is posted on Capitol Confidential, there would be an elaborate quota system put in place: "Probable demand shall be determined by reference to, among other data, the United States average cigarette consumption per capita, as compiled for the most recently completed calendar or fiscal year, multiplied by the number of qualified Indians for each such affected Indian nation or tribe."

Setting aside the complexity of this process, what happens after the quotas are determined? Let's say, as the posted draft regs do, that Poospatuck (Unkechauge) have a quarterly consumption of 8,100 packs. Just how will this be enforced? And with multiple tax stamp agents authorized to ship cigarettes who will monitor compliance when, let's say, six or seven companies ship out the quota max to each tribe?

Enough of the obfuscation and delay. What the guv needs to do-and do immediately-is issue tax stamp coupons based on the quota to each tribe; and do so as part of an emergency measure related to the state's severe budget deficit. Once this is done, he should direct the AG to go into court and ask for the injunction against enforcement to be lifted.

The current methodology takes us into an entirely new legal path-and could be subjected to at least two additional years of litigation. The coupon issuance path, however, is already settled, and less vulnerable to the inevitable legal challenges by the Senecas. Enough "negotiation." What we need is the governor to act as a leader and collect the tax now!