New York Prevails over UPS in Indian Country Smokes Case

Here are the materials in State of New York v. United Parcel Service (S.D. N.Y.):

287-ny-motion

345-opposition

384-reply

406-dct-order

An excerpt:

The fundamental reason why plaintiffs are entitled to summary judgment and defendant is not is that when UPS was transporting unstamped cigarettes (how many is “TBD”), it was transporting contraband. Pre-amendment § 471 confirms that stamps were required, that taxability was presumed, and that the burden of proving otherwise was on UPS. UPS has not carried this burden. UPS is not entitled to rely on the judicially imposed injunctions or stays of enforcement obtained by Indian tribes, nor is it entitled to rely upon forbearance. It is also of no moment that there were difficulties in determining when tax was required to be paid or not, and it is also of no moment that the State had stood down on collection from reservation retailers altogether. At the end of the day, the situation — which may have advantaged reservation retailers — placed UPS in a precarious position; without its own statutory exemption or legal assurance, and in the absence of information as to ultimately taxability of the cigarettes they were shipping, transporting shipments was a risky business indeed. But this was a business risk. UPS could choose to undertake such risk or not. One thing has [38]  always been clear: UPS has never had exemption from the CCTA.

This entry was posted in Author: Matthew L.M. Fletcher, Research, taxation and tagged , , . Bookmark the permalink.

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