taxation – Page 40 – Turtle Talk

An odd thing about the seizures, which have affected several native manufacturers that are paying licensing fees to the federal government and to the Mohawk tribal government, is that it is in conflict with a state tax department memo. The memo comes up frequently in the HCI litigation and was placed into the record in a separate tobacco arrest case. Written in July 2011 by the leader of the tax department’s criminal division, it specifically says that untaxed native-made cigarettes bound for reservations in New York or outside of New York should not be seized.

The memo is irrelevant, according to an assistant to Attorney General Eric Schneiderman, who is defending the State Police in the case. “All cigarettes within New York State are presumed to be subject to tax until the contrary is established,” said Aaron M. Baldwin, in a brief. He said that only a licensed cigarette agent can possess untaxed cigarettes in New York and that agent must show proof of a legal sale exempt from taxes. The brief suggests that HCI could resell the Signals to customers in New York, thereby denying New York required taxes. The driver of the seized Signals shipment told State Police that he often delivers cigarettes from the Winnebago reservation in Nebraska to the Poospatuck reservation on Long Island, according to court documents.

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Swinomish-Licensed Smokes Sellers Prevail (In Part) in the Ninth Circuit on CCTA Charges

April 6, 2012Matthew L.M. Fletcher

Here are the materials in United States v. Wilbur:

CA9 Opinion (per Judge W. Fletcher, with partial dissent by Judge Rawlinson)

Wilbur Opening Brief

Federal Answering Brief

Wilbur Reply Brief

An excerpt:

For the reasons that follow, we agree with the Wilburs that during the period from 2003 to 2005, when they were licensed to sell tobacco by the Swinomish Tribe, there were no “applicable State or local cigarette taxes” under the CCTA. We also agree with the Wilburs that the five-year statute of limitations for CCTA violations bars any charges based on activity from 1999 to 2003. We conclude, however, that after their tribal tobacco license expired in 2005, the Wilburs’ activities ceased to be covered by the Swinomish cigarette tax contract (“CTC”), and that the state’s retrocession therefore ceased to apply. The unstamped cigarettes the Wilburs transported and sold during this period were thus “contraband” under the CCTA. We reject the Wilburs’ due process and treaty arguments.

HCI Distribution Sues New York State to Recover Confiscated Truck Loaded with Native-Manufactured Smokes

April 5, 2012Matthew L.M. Fletcher2 Comments

Here are the materials in HCI Distribution v. New York State Police (N.Y. Sup. Ct.):

2012-02-28 Order to show cause

2012-02-28 Final Verified Petition

2012-02-27 Tarbell Affidavit (Executed)

2012-02-28 Guerrero Affidavit (Executed)

2012-03-01 Amended RJI

1 State Police – Cover Letter

2 State Police – Answer

3 State Police – Exhibits

4 State Police – Memorandum of Law

5 State Police – Appendix Unreported Cases

6 State Police – Affidavits and Affirmations

7 State Police – NEB AAG Affd w Exhibits

Mashantucket Pequot Prevails in Tax Dispute with Town of Ledyard et al.

March 29, 2012March 29, 2012Matthew L.M. Fletcher3 Comments

Here is the order.

Available briefs are here.

Cert Petition in Comenout v. Washington — Tax Case

March 28, 2012March 28, 2012Matthew L.M. Fletcher

Here.

Here are the questions presented:

1. Did the court below err by holding that the State of Washington has jurisdiction to charge a state cigarette tax crime against a Quinault Indian and other Indians allegedly selling untaxed cigarettes at the Quinault Indian’s trust allotment located outside the Quinault Indian Reservation boundaries?

2. Did the court below err in refusing to apply the federal law definition of Indian country, 18 U.S.C. § 1151(c)?

3. Did the court below err in holding that the State of Washington, an optional Public Law 280 state, had state tax crime criminal jurisdiction of enrolled Indians on trust lands?

4. Did the court below err in holding that Washington law, Wash.Rev.Code 37.12.010 through 060, was exempt from the Quinault Tribe’s retrocession of state jurisdiction?