8/6/2019 Weekly Column From Leader Brian Kolb, Court Ruling on
Cigarette Taxes, May 13, 2011
1/2
For Release: IMMEDIATELY, May 13, 2011
Contact: Doug Finch (315) 781-2030
FEDERAL APPEALS COURT RULING BRINGS NEW YORK ONE STEP
CLOSER TO ENFORCING THE LAW AND COLLECTING THE TAXLegislative
column from Assembly Minority Leader Brian M.
Kolb(R,I,C-Canandaigua)
Right here in our Finger Lakes community and all across western,
central and upstate New
York taxpayers and businesses have been waging a fierce battle.
At stake in this battle arefundamental principles such as the rule
of law and basic fairness for all, not just a select few.
Also at stake, is the economic future of countless small
businesses that continue following the
law, even though their bottom line suffers for doing so. I am
proud to be part of a growing, non-partisan coalition of taxpayers
and businesses waging this battle to enforce the law, collect
the
taxes, and level the economic playing field through collecting
sales taxes on cigarettes and
gasoline sold on Native American lands to non-Native American
Indians.
A FIGHT WORTH FIGHTING: ENFORCE THE LAW, COLLECT THE TAXES
AND
LEVEL THE PLAYING FIELD
This fight has been occurring for nearly two decades and,
regrettably, has claimed the dreamsand futures of countless local
mom-and-pop convenience store operators whose only crime
was following the law and trying to compete on an unfair playing
field. This fight has beenespecially costly: it has cost our local
taxpayers, local governments and state government
literally billions in legal fees, lost revenue, closed or
bankrupted businesses, and a series of
expensive court fights that seem to go on and on with no end in
sight. However, earlier thisweek, with the announcement of a ruling
by the Federal Court of Appeals, it appeared as if the
battle was over and the rule of law had finally won the day.
FEDERAL COURT: NEW YORK CAN BEGIN COLLECTING TAXES ON
CIGARETTES AND GASOLINE
On Monday, May 9, 2011, the Second Circuit of the United States
Court of Appeals threw out an
injunction that had prevented the collection of taxes on
cigarettes sold on Native American
Lands to non-Native American Indians. The ruling was a HUGE
victory and a major triumph for
law-abiding, taxpaying citizens and businesses. This issue is
personal to me: I have spoken with,and heard from, thousands of
area residents who believe, as I do, that state government
should
have begun enforcing the law, collecting the taxes and leveling
the playing field 17 years ago. It
was back in 1994 that the United States Supreme Court ruled New
York had the authority tocollect these taxes. Yet, for 17 years,
state government inexplicably sat on its hands.
-MORE-
8/6/2019 Weekly Column From Leader Brian Kolb, Court Ruling on
Cigarette Taxes, May 13, 2011
2/2
KOLB WEEKLY COLUMN PAGE 2
05.13.2011
NO PERSON OR GROUP IS ABOVE THE LAW
The Judges on the Second Circuit are correct no person or group
is above the law. The Courts
verdict mirrored what I have been saying all along, that the
Native American claims have no
merit. The Court dismissed the tribal arguments based on a few
key facts and legal principles.
First, collecting these taxes does not impose an economic burden
on tribal retailers. Second, thesystem of collection does not
interfere with their rights of self-government. Third, while
federal
law prohibits New York from taxing cigarette sales to members of
the tribe, the state can tax
cigarettes sold to non-Native Americans. On all counts, the
Federal Court got it right.
MORE LEGAL GAMES: JUDGE SIWEK THROWS UPANOTHER ROADBLOCK
Unfortunately, there is another twist to this story. The day
after the Federal Court of Appeals
ruled New York could finally move forward, the Seneca Indian
Nation sought to stall the ruling
through a temporary restraining order. At the heart of the
Nations argument is their claim abaseless one, in my opinion that
the State Department of Taxation and Finance moved forward
with issuing regulations to collect the taxes without proper
public input. Keep in mind, not asingle penny of sales taxes had
even been collected! Yet, for some reason, State Supreme CourtJudge
Donna Siwek decided this was a sound argument, even though the
United States Supreme
Court and the Federal Court of Appeals both ruled that taxes
could be collected on sales to non-
Native Americans Indians on Native American lands. Add to this
the fact that locally, we haveheld countless public hearings,
solicited pages of testimony, circulated petitions, held press
conferences and asked New Yorks Congressional delegation for an
end to this legal runaround.
Personally, I have spoken to former Governor David Paterson and
current Governor Andrew
Cuomo on this issue, and sponsored legislation, Assembly Bill
A.10128, that directed all
cigarette wholesalers to sell only tax-stamped cigarettes to
everyone, unless presented with anIndian tax exemption coupon to
allow for the collection of the billions in lost revenue. This
bill
was introduced properly, following every necessary legal and
legislative requirement.
LEGISLATING FROM THE BENCH MUST STOP!
While nobody knows how Judge Siwek will ultimately rule when she
hears this case on June 1,the fact that the Seneca Indian Nation
continues treating our legal system like some sort of game
is troubling. The Seneca Nations last-minute legal gambit is
like a football team trying to run
out the clock even though they are losing 35 to nothing. It just
doesnt make sense.
Frankly, Judge Siweks decision was one of the most shocking
instances of legislating from the
bench that I have ever witnessed. The fact that Judge Siwek
stopped the state from moving
forward even though the two highest courts in America have ruled
in New Yorks favor, makeswe wonder whether the Judge is trying to
interpretthe lawormake the law. This is a critical
distinction! If Judge Siwek wants to make the laws, then she
should run for the State Legislature
or Congress so she can serve in the legislative branch as
opposed to thejudicialbranch.However, despite the Judges ruling, I
believe we are close to finally seeing this issue resolved.
As always, constituents wishing to discuss this topic, or any
other state-related matter shouldcontact my district office at
(315) 781-2030, or e-mail me at [email protected]. You
can also follow me on Facebook and Twitter for the latest news
and informational updates
regarding state government and our Assembly Minority
Conference.-30-
