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AN ACT

RELATING TO TAX ADMINISTRATION; ENHANCING CIGARETTE STAMP

PROCEDURES; PROVIDING FOR TAX-EXEMPT STAMPS; ADJUSTING CERTAIN

TAX STAMP DISCOUNTS; EXPANDING REPORTING AND LICENSING

REQUIREMENTS; AUTHORIZING INTERGOVERNMENTAL AGREEMENTS;

PROVIDING CIVIL AND CRIMINAL PENALTIES; AMENDING, REPEALING

AND ENACTING SECTIONS OF THE CIGARETTE TAX ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 7-12-2 NMSA 1978 (being Laws 1971,

Chapter 77, Section 2, as amended) is amended to read:

"7-12-2. DEFINITIONS.--As used in the Cigarette Tax

Act:

A. "cigarette" means any roll of tobacco or any

substitute for tobacco wrapped in paper or in anything that is

not one hundred percent tobacco; "cigarette" includes bidis

and kreteks and small cigars sold in packages similar to

cigarettes, unless the cigar is wrapped in one hundred percent

tobacco;

B. "contraband cigarettes" means cigarette

packages with counterfeit stamps, counterfeit cigarettes,

cigarettes that have false or fraudulent manufacturing labels

and cigarette packages without the tax or tax-exempt stamps

required by the Cigarette Tax Act;

C. "department" means the taxation and revenue

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department, the secretary of taxation and revenue or any

employee of the department exercising authority lawfully

delegated to that employee;

D. "distributor" means a person licensed pursuant

to the Cigarette Tax Act to sell or distribute cigarettes in

New Mexico. "Distributor" does not include:

(1) a retailer;

(2) a cigarette manufacturer, export

warehouse proprietor or importer with a valid permit pursuant

to 26 U.S.C. 5713, if that person sells cigarettes in New

Mexico only to distributors that hold valid licenses under the

laws of a state or sells to an export warehouse proprietor or

to another manufacturer; or

(3) a common or contract carrier

transporting cigarettes pursuant to a bill of lading or

freight bill, or a person who ships cigarettes through the

state by a common or contract carrier pursuant to a bill of

lading or freight bill;

E. "license" means a license granted pursuant to

the Cigarette Tax Act that authorizes the holder to conduct

business as a manufacturer or distributor of cigarettes;

F. "manufacturer" means a person that

manufactures, fabricates, assembles, processes or labels a

cigarette or that imports from outside the United States,

directly or indirectly, a finished cigarette for sale or

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distribution in the United States;

G. "master settlement agreement" means the

settlement agreement and related documents entered into on

November 23, 1998 by the state and leading United States

tobacco product manufacturers;

H. "package" means an individual pack, box or

other container; "package" does not include a container that

itself contains other containers, such as a carton of

cigarettes;

I. "retailer" means a person, whether located

within or outside of New Mexico, that sells cigarettes at

retail to a consumer in New Mexico and the sale is not for

resale;

J. "stamp" means an adhesive label issued and

authorized by the department to be affixed to cigarette

packages for excise tax purposes and upon which is printed a

serial number and the words "State of New Mexico" and "tobacco

tax";

K. "tax stamp" means a stamp that has a specific

cigarette tax value pursuant to the Cigarette Tax Act; and

L. "tax-exempt stamp" means a stamp that indicates

a tax-exempt status pursuant to the Cigarette Tax Act."

Section 2. Section 7-12-3.1 NMSA 1978 (being Laws 1986,

Chapter 13, Section 3, as amended) is amended to read:

"7-12-3.1. CIGARETTE INVENTORY TAX--IMPOSITION OF TAX--

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DATE PAYMENT OF TAX DUE.--

A. A tax that may be identified as the "cigarette

inventory tax" is imposed on a distributor that has in its

possession tax-exempt stamps or tax stamps, whether or not

affixed to packages of cigarettes, on the date on which an

increase in the cigarette tax imposed by Section 7-12-3 NMSA

1978 is effective.

B. The cigarette inventory tax due from the

distributor is calculated by multiplying the number of tax

stamps in the distributor's possession by the increase in the

excise tax. Tax-exempt stamps are not included in the

calculation to determine the amount of cigarette inventory tax

to be paid by a distributor.

C. The cigarette inventory tax is to be paid to

the department on or before the twenty-fifth day of the month

following the month in which the increase in the cigarette tax

is effective."

Section 3. Section 7-12-3.2 NMSA 1978 (being Laws 1986,

Chapter 13, Section 4) is amended to read:

"7-12-3.2. CIGARETTE INVENTORIES.--

A. On any date on which the cigarette tax imposed

by Section 7-12-3 NMSA 1978 is increased, each distributor

shall take inventory of tax-exempt stamps and tax stamps on

hand, including stamps affixed to packages of cigarettes.

B. Each distributor shall report the total number

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of tax-exempt stamps and tax stamps in inventory on the date

on which the cigarette tax increases and pay the cigarette

inventory tax due."

Section 4. Section 7-12-5 NMSA 1978 (being Laws 1971,

Chapter 77, Section 5, as amended) is amended to read:

"7-12-5. AFFIXING STAMPS.--

A. Except as provided in Section 7-12-6 NMSA 1978,

all cigarettes shall be placed in packages or containers to

which a stamp shall be affixed. Only a distributor with a

valid license issued pursuant to the Cigarette Tax Act may

purchase or obtain unaffixed tax-exempt stamps or tax stamps.

A distributor shall not sell or provide unaffixed stamps to

another distributor, manufacturer, export warehouse proprietor

or importer with a valid permit pursuant to 26 U.S.C. 5713 or

any other person.

B. Stamps shall be affixed by the distributor to

each package of cigarettes to be sold or distributed in New

Mexico within ten days of receipt of those packages.

C. A distributor shall apply stamps only to

packages of cigarettes that it has received directly from a

manufacturer or importer of cigarettes that possesses a valid

and current permit pursuant to 26 U.S.C. 5713.

D. Packages shall contain cigarettes in lots of

twenty or twenty-five.

E. Unless the requirements of this section are

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waived pursuant to Section 7-12-6 NMSA 1978, a tax stamp shall

be affixed to each package of cigarettes subject to the

cigarette tax and a tax-exempt stamp shall be affixed to each

package of cigarettes not subject to the cigarette tax

pursuant to Section 7-12-4 NMSA 1978.

F. A tax-exempt stamp is not an excise tax stamp

for purposes of determining units sold pursuant to Section

6-4-12 NMSA 1978.

G. Stamps shall be affixed inside the boundaries

of New Mexico, unless the department has granted a license

allowing a person to affix stamps outside New Mexico."

Section 5. Section 7-12-6 NMSA 1978 (being Laws 1971,

Chapter 77, Section 6, as amended) is amended to read:

"7-12-6. WAIVER OF REQUIREMENT THAT STAMPS BE AFFIXED.

--The requirement imposed in Section 7-12-5 NMSA 1978 that

stamps be affixed to packages or containers of cigarettes is

waived if the cigarettes are distributed by a manufacturer

pursuant to federal regulations and are exempt from tax

pursuant to 26 U.S.C. 5704."

Section 6. Section 7-12-7 NMSA 1978 (being Laws 1971,

Chapter 77, Section 7, as amended) is amended to read:

"7-12-7. SALE OF STAMPS--PRICES.--

A. Only the department shall sell stamps. Stamps

may be sold by the department only to a distributor.

B. Stamps shall display a serial number. Stamps

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bearing the same serial number shall not be sold to more than

one distributor. The department shall keep records of the

serial numbers of the stamps provided to each distributor.

C. A stamp shall be affixed to a package of

cigarettes in such a manner as to clearly display the serial

number at the point of sale.

D. Tax stamps shall be sold at their face value

with the following discounts:

(1) one percent less than the face value of

the first thirty thousand dollars ($30,000) of stamps

purchased in one calendar month;

(2) eight-tenths percent less than the face

value of the second thirty thousand dollars ($30,000) of

stamps purchased in one calendar month; and

(3) one-half percent less than the face

value of stamps purchased in excess of sixty thousand dollars

($60,000) in one calendar month.

E. If the face value of tax stamps sold in a

single sale is less than one thousand dollars ($1,000), the

discount provided for in this section shall not be allowed.

F. Payment for tax stamps shall be made on or

before the twenty-fifth day of the month following the month

in which the sale of stamps by the department is made.

G. Tax-exempt stamps shall be provided only to

distributors and shall be free of charge; provided that the

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distributor is in full compliance with the reporting

requirements of the Cigarette Tax Act and rules adopted

pursuant to that act."

Section 7. A new section of the Cigarette Tax Act,

Section 7-12-9.1 NMSA 1978, is enacted to read:

"7-12-9.1. LICENSING--GENERAL LICENSING PROVISIONS.--

A. A person shall not engage in the manufacture or

distribution of cigarettes in New Mexico without a license

issued by the department.

B. The department shall issue a license for a term

not to exceed one year.

C. The department may charge a license fee of up

to one hundred dollars ($100) for each manufacturer's or

distributor's license issued or renewed.

D. An application for a license or renewal of a

license shall be submitted on a form determined by the

department and shall include:

(1) the name and address of the applicant

and:

(a) if the applicant is a firm,

partnership or association, the name and address of each of

its members; or

(b) if the applicant is a corporation,

the name and address of each of its officers;

(2) the address of the applicant's principal

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place of business and every location where the applicant's

business is conducted; and

(3) any other information the department may

require.

E. The department may issue a distributor's

license and a manufacturer's license to the same person.

F. Persons licensed as manufacturers or

distributors may sell stamped cigarettes at retail.

G. A license may not be granted, maintained or

renewed if one or more of the following conditions applies to

an applicant:

(1) the applicant owes five hundred dollars

($500) or more in delinquent cigarette taxes;

(2) the applicant has had a manufacturer's

or distributor's license revoked by the department or any

other state within the past two years;

(3) the applicant is convicted of a crime

related to contraband cigarettes, stolen cigarettes or

counterfeit stamps;

(4) the applicant is a manufacturer but not

a participating manufacturer as defined in Section II(jj) of

the master settlement agreement and the applicant is not in

compliance with the provisions of Section 6-4-13 NMSA 1978 or

the Tobacco Escrow Fund Act; or

(5) the applicant is a manufacturer and

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imports cigarettes into the United States that are in

violation of 19 U.S.C. 1681a or manufactures cigarettes that

do not comply with the Federal Cigarette Labeling and

Advertising Act.

H. In addition to a civil or criminal penalty

provided by law, upon a finding that a licensee has violated a

provision of the Cigarette Tax Act or a rule adopted pursuant

to that act, the department may revoke or suspend the license

or licenses of the licensee.

I. As used in this section, "applicant" includes a

person or persons owning, directly or indirectly, in the

aggregate, more than ten percent of the ownership interest in

the business holding or applying for a license pursuant to the

Cigarette Tax Act."

Section 8. A new section of the Cigarette Tax Act,

Section 7-12-9.2 NMSA 1978, is enacted to read:

"7-12-9.2. DISTRIBUTOR'S LICENSE.--

A. A person shall not distribute stamped packages

of cigarettes for resale or sell stamped packages of

cigarettes at wholesale without first obtaining a

distributor's license from the department.

B. A person licensed to distribute cigarettes is

authorized to:

(1) receive unstamped packages of cigarettes

from a manufacturer;

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(2) purchase tax stamps and receive tax-

exempt stamps from the department;

(3) affix tax stamps or tax-exempt stamps to

unstamped packages of cigarettes;

(4) sell stamped packages of cigarettes to a

retailer for resale; and

(5) sell unstamped packages of cigarettes to

a person licensed to distribute cigarettes outside of New

Mexico."

Section 9. A new section of the Cigarette Tax Act,

Section 7-12-9.3 NMSA 1978, is enacted to read:

"7-12-9.3. MANUFACTURER'S LICENSE.--

A. A person shall not manufacture cigarettes in

New Mexico unless licensed by the department.

B. A person licensed to manufacture cigarettes in

New Mexico is authorized to:

(1) manufacture, produce and package

cigarettes;

(2) receive imported cigarettes;

(3) sell unstamped cigarettes to a

distributor, another manufacturer or an export warehouse

proprietor; and

(4) sell unstamped cigarettes outside of New

Mexico."

Section 10. A new section of the Cigarette Tax Act,

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Section 7-12-9.4 NMSA 1978, is enacted to read:

"7-12-9.4. RETAIL SALE OF CIGARETTES.--A retailer of

cigarettes shall:

A. only obtain cigarettes for resale from a

distributor;

B. only obtain stamped cigarettes;

C. not sell cigarettes at wholesale or for resale

unless the retailer is also a distributor; and

D. comply with the provisions of the Cigarette Tax

Act or any law or rule that applies to retailers of

cigarettes."

Section 11. A new section of the Cigarette Tax Act,

Section 7-12-10.1 NMSA 1978, is enacted to read:

"7-12-10.1. RETENTION OF INVOICES AND RECORDS--

INSPECTION BY DEPARTMENT.--

A. A manufacturer or distributor shall maintain

copies of invoices for each of its facilities for every

transaction involving a cigarette sale, purchase, transfer,

receipt or consignment. A retailer need not retain copies of

invoices for sales of cigarettes to consumers. An invoice

shall show:

(1) the names and addresses of all persons

involved in the transaction, including the seller, purchaser,

consignor and consignee. If a transaction involves an

additional facility of the same manufacturer, distributor or

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retailer, the invoice shall also show the address of the

additional facility;

(2) the date;

(3) the price; and

(4) the quantity of each brand of cigarettes

involved in each transaction.

B. Records required to be maintained pursuant to

Subsection A of this section shall be preserved on the

premises described in the license in a manner that ensures

permanency and accessibility for inspection at reasonable

hours by the department.

C. The records required to be maintained pursuant

to Subsection A of this section shall be retained for a period

of three years from the end of the year in which the

transaction occurred, unless otherwise required by law to be

retained for a longer period of time.

D. The department and the secretary of the United

States department of the treasury, or a designee, may inspect

the reports and records required pursuant to the Cigarette Tax

Act along with any stock of cigarettes in the possession of

the manufacturer, distributor or retailer. The department, at

its sole discretion, may share those records and reports with

law enforcement officials of the federal government, other

states and international authorities."

Section 12. Section 7-12-11 NMSA 1978 (being Laws 1971,

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Chapter 77, Section 11) is amended to read:

"7-12-11. EXPORT SELLERS--PHYSICAL SEGREGATION OF

CIGARETTES TO BE EXPORTED.--

A. A distributor selling and shipping cigarettes

outside New Mexico may maintain unstamped packages of

cigarettes on the distributor's premises if the unstamped

packages to be shipped outside the state are kept in a

separate part of the distributor's place of business,

physically segregated from packages of cigarettes to be sold

inside New Mexico and clearly identified as packages of

cigarettes for shipment outside the state. If packages of

cigarettes to be sold outside New Mexico are intermingled with

packages of cigarettes to be sold inside New Mexico, they

shall be stamped and treated for purposes of the Cigarette Tax

Act as packages of cigarettes to be sold inside New Mexico.

B. Unstamped packages of cigarettes shall not be

transferred by a distributor to another facility of the

distributor's or to another person within New Mexico.

C. A person doing business as both a distributor

and a retailer or both a distributor and a manufacturer shall

maintain separate areas for stamped and unstamped packages of

cigarettes."

Section 13. Section 7-12-12 NMSA 1978 (being Laws 1971,

Chapter 77, Section 12, as amended) is amended to read:

"7-12-12. SHIPMENT OF UNSTAMPED CIGARETTES IN NEW

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MEXICO.--

A. A person that ships unstamped packages of

cigarettes into New Mexico other than to a distributor shall

first file a notice of the shipment with the department.

B. A person that transports unstamped packages of

cigarettes into or within New Mexico shall carry, in the

transporting vehicle, invoices or equivalent documents

applicable to all cigarettes in the shipment. The invoices or

documents shall show:

(1) the name and address of the consignor or

seller;

(2) the name and address of the consignee or

purchaser; and

(3) the quantity of each brand of cigarettes

transported.

C. The provisions of Subsections A and B of this

section shall not apply to a common or contract carrier

transporting cigarettes through New Mexico to another location

pursuant to a proper bill of lading or freight bill that

states the quantity, source and destination of the cigarettes.

D. The department may, by regulation, require and

prescribe the contents of reports to be filed with the

department by persons transporting unstamped packages of

cigarettes in New Mexico."

Section 14. A new section of the Cigarette Tax Act is

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enacted to read:

"REPORTS.--

A. A distributor shall submit periodic reports to

the department, in the manner and on the form prescribed by

the department. A distributor shall submit a separate report

for each of its facilities. The information in the report

shall be itemized and shall clearly disclose cigarette brands,

quantities and the type of stamp applied to the packages of

cigarettes. A report shall include:

(1) an inventory of stamped and unstamped

packages of cigarettes held for sale or distribution within

New Mexico at the beginning of the reporting period;

(2) the quantity of stamped packages of

cigarettes held for sale or distribution within New Mexico

that were received from another person during the reporting

period and the name and address of each person from whom each

quantity was received;

(3) the quantity of New Mexico stamped

packages of cigarettes that were distributed or shipped to

another distributor or retailer within New Mexico during the

reporting period and the name and address of each person to

whom each quantity was distributed or shipped;

(4) the quantity of New Mexico stamped

packages of cigarettes that were distributed or shipped to

another facility of the same distributor within New Mexico

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during the reporting period and the address of that facility;

(5) the quantity of stamped cigarette

packages that were distributed or shipped within New Mexico to

an Indian nation, tribe or pueblo or to a person located on

the land of an Indian nation, tribe or pueblo or to

instrumentalities of the federal government during the

reporting period and the name and address of each person,

entity or instrumentality to whom each quantity was

distributed or shipped;

(6) an inventory of stamped and unstamped

packages of cigarettes held for sale or distribution within

New Mexico at the end of the reporting period;

(7) an inventory of stamped and unstamped

packages of cigarettes for sale or distribution outside of New

Mexico at the beginning of the reporting period;

(8) the quantity of packages of cigarettes

held for sale or distribution outside of New Mexico that were

received from another person during the reporting period and

the name and address of each person from whom each quantity

was received;

(9) the quantity of packages of cigarettes

that were distributed or shipped outside New Mexico during the

reporting period;

(10) an inventory of packages of cigarettes

held for sale or distribution outside of New Mexico at the end

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of the reporting period;

(11) the number of each type of stamp on

hand at the beginning of the reporting period;

(12) the number of each type of stamp

purchased or received during the reporting period;

(13) the number of each type of stamp

applied during the reporting period; and

(14) the number of each type of stamp on

hand at the end of the reporting period.

B. A manufacturer shall submit periodic reports in

the manner and on the form prescribed by the department. The

information in the report shall be itemized to clearly

disclose cigarette brands and quantities. The reports shall

be provided separately with respect to each of the facilities

operated by the manufacturer. A report shall contain the

quantity of packages of cigarettes that were distributed or

shipped:

(1) to a manufacturer, distributor or

retailer within New Mexico during the reporting period and the

name and address of each person to whom each quantity was

distributed or shipped;

(2) to another facility within New Mexico of

the same manufacturer during the reporting period and the

address of the facility; and

(3) within New Mexico to an Indian nation,

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tribe or pueblo or to a person located on the land of an

Indian nation, tribe or pueblo or to instrumentalities of the

federal government during the reporting period and the name

and address of each person, entity or instrumentality to whom

each quantity was distributed or shipped.

C. The department may require additional

information to be submitted. The department shall establish

the reporting period, which shall be no longer than three

calendar months and no shorter than one calendar month."

Section 15. A new section of the Cigarette Tax Act is

enacted to read:

"INTERGOVERNMENTAL AGREEMENTS--NO WAIVER OF SOVEREIGN

IMMUNITY.--

A. The department may enter into an

intergovernmental agreement with a tribe to:

(1) enforce, administer or otherwise

implement the provisions of the Cigarette Tax Act;

(2) increase the ability of the department

to account for packages of cigarettes imported into, sold or

transferred within and exported from the state; and

(3) provide for cooperative tax collection

or tax administration of the cigarette tax.

B. Nothing in the Cigarette Tax Act shall be

construed to waive or restrict the sovereign immunity of a

tribe or the state.

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C. As used in this section, "tribe" means an

Indian nation, tribe or pueblo located wholly or partially in

New Mexico."

Section 16. A new section of the Cigarette Tax Act,

Section 7-12-13.1 NMSA 1978, is enacted to read:

"7-12-13.1. CIVIL PENALTIES.--

A. Whoever knowingly fails, neglects or refuses to

comply with the provisions of the Cigarette Tax Act shall be

liable for, in addition to any other penalty provided in that

act:

(1) for a first offense, a penalty of up to

one thousand dollars ($1,000);

(2) for a second offense, a penalty of not

less than one thousand five hundred dollars ($1,500) and no

more than two thousand five hundred dollars ($2,500); and

(3) for a third or subsequent offense, a

penalty of not less than five thousand dollars ($5,000).

B. Whoever fails to pay a tax imposed pursuant to

the Cigarette Tax Act at the time the tax is due shall, in

addition to any other penalty provided in that act, be liable

for a penalty of five hundred percent of the tax due but

unpaid.

C. Contraband cigarettes in New Mexico and the

equipment used to manufacture, package or stamp them are

subject to seizure, forfeiture and destruction by the

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department, its revenue officers or its agents or by other

state or local peace officers.

D. Counterfeit stamps for use in New Mexico in the

possession of any person and the equipment used to produce

them are subject to seizure by the department, its revenue

officers or its agents or by other state or local peace

officers."

Section 17. A new section of the Cigarette Tax Act is

enacted to read:

"CRIMINAL OFFENSES--CRIMINAL PENALTIES--SEIZURE AND

DESTRUCTION OF EVIDENCE.--

A. Whoever violates a provision of the Cigarette

Tax Act or a rule adopted pursuant to that act is guilty of a

misdemeanor and shall be sentenced in accordance with the

provisions of Section 31-19-1 NMSA 1978.

B. Whoever, with intent to defraud, fails to

comply with a licensing, reporting or stamping requirement of

the Cigarette Tax Act or with a licensing, reporting or

stamping rule adopted pursuant to that act is guilty of a

fourth degree felony and upon conviction shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Whoever packages cigarettes for sale in New

Mexico or whoever sells cigarettes in New Mexico, in packages

of other than twenty or twenty-five cigarettes is:

(1) for the first offense, guilty of a

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misdemeanor and when convicted shall be sentenced pursuant to

Section 31-19-1 NMSA 1978; and

(2) for the second or subsequent offense,

guilty of a fourth degree felony and when convicted shall be

sentenced pursuant to Section 31-18-15 NMSA 1978.

D. Whoever purchases or otherwise knowingly

obtains counterfeit stamps or whoever produces, uses or causes

counterfeit stamps to be used is guilty of a fourth degree

felony and upon conviction shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978.

E. Whoever sells or possesses for the purpose of

sale contraband cigarettes is in violation of the Cigarette

Tax Act and shall have the product and related equipment

seized. If convicted of selling or possessing for sale

contraband cigarettes, the person shall be sentenced as

follows:

(1) a violation with a quantity of fewer

than two cartons of contraband cigarettes, or the equivalent,

is a petty misdemeanor and is punishable in accordance with

the provisions of Section 31-19-1 NMSA 1978;

(2) a first violation with a quantity of two

cartons or more of contraband cigarettes, or the equivalent,

is a misdemeanor and is punishable in accordance with the

provisions of Section 31-19-1 NMSA 1978; and

(3) a second or subsequent violation with a

quantity of two cartons or more of contraband cigarettes, or

the equivalent, is a fourth degree felony and is punishable by

a fine not to exceed fifty thousand dollars ($50,000) or

imprisonment for a definite term not to exceed eighteen

months, or both, and shall also result in the revocation by

the department of the manufacturer's or distributor's license,

if any.

F. Contraband cigarettes or counterfeit stamps

seized by the department or by a law enforcement agency shall

be retained as evidence to the extent necessary. Contraband

cigarettes or counterfeit stamps no longer needed as evidence

shall be destroyed.

G. Prosecution for a violation of a provision of

this section does not preclude prosecution under other

applicable laws."

Section 18. REPEAL.--Sections 7-12-9, 7-12-10 and

7-12-13 NMSA 1978 (being Laws 1971, Chapter 77, Sections 9, 10

and 13, as amended) are repealed. HB 617

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