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Editorials
Governor Paterson’s mantra on the issue of less than equal enforcement of New York Tax Laws on gas and cigarettes has been that "we must fundamentally change the way we approach these problems." One of the basic principles of equal protection jurisprudence is that a law must be enforced equally on all upon which it applies or on none at all.
In February 2008, Rich Tallcot of Upstate Citizens for Equality presented to Seneca County D.A. Rich Swinehart a letter that Daniel Warren, Chair of the Niagara Frontier Chapter of UCE originally sent to Erie County D.A. Frank Clark in May of 2004 ( http://www.upstate-citizens.org/UCE-Clark-law-DA.pdf ). D.A. Swinehart then began considering if, in fact, he could do something about this situation. The State outright refused to help, the State ignored his FOIL requests so he traveled to Albany on his own to research records and when they found out why he was there he was ignored and not helped.
Through ex-employees D.A. Swinehart learned where the tribe kept all their records. He had surveillance done over extensive periods to determine when and where from they were getting their shipments. The NYS Tax Department Employees wanted to help, but were told they not only couldn’t help, but were instructed to report to the State Tax Commissioner every time D.A. Swinehart called them. And there was much more. D.A. Swinehart then contacted Cayuga County D.A. Budelmann who then took a look at the issue and reached the same conclusions.
By letter dated September 5, 2008, the District Attorneys for Cayuga and Seneca Counties sent a joint letter to Robert L. Megna, Commissioner of the New York State Department of Taxation and Finance ( http://www.upstate-citizens.org/L_indian_cig_letter_from_seneca_county_DA.pdf ) for his department’s assistance. By letter dated October 1, 2008, Commissioner Megna declined to assist Seneca or Cayuga County in this matter (http://www.upstate-citizens.org/L_indian_cig_response_to_cayuga_and_seneca.pdf). The NY State Police offered to provide backup service, Budelmann said.
With both Seneca and Cayuga Counties on board they presented their evidence to State Supreme Court Justice Kenneth Fisher who reviewed the material and issued the search warrant. The District Attorneys asked for everything including all monies on the two premises (there are four safes just in Seneca County Lakeside), but was only allowed by the judge to take everything pertaining to cigarettes.
"This is as simple as a case can be. It is illegal to possess (untaxed) cigarettes. They possessed them," Seneca County District Attorney Richard Swinehart said at a news conference after the raids.
Two million cigarettes were seized in Seneca County; the state should have received $275,000 in taxes. In Cayuga County, 1.5 million cigarettes were taken. That's a total of $209,000 in taxes.
"What transpired this morning is exactly what would occur to any of our member convenient stores if they refused to collect applicable taxes on cigarettes. Everyone needs to play by the same rules. This is a big step in the right direction," said James Calvin, executive director of the New York State Association of Convenience Stores, who was at the news conference. James Calvin also said that non-smokers pay increased sales and property taxes due to the smokers’ evasion of their tax obligations by buying their cigarettes at stores that do not collect the taxes on cigarettes.
"This is almost a half-million in taxpayer money in our two counties. This is just one day," said David Gould, Cayuga County Sheriff. "This is just unbelievable."
"When one portion of society is paying taxes and the other is not, it's an unfair advantage to the portion that's not paying it," said Cayuga County District Attorney Jon Budelmann.
"I'm at a loss as to how people who are supposed to enforce the law can look the other way," Swinehart said.
"It's interesting that two small upstate counties are doing what our Governor should have been doing for months," said Brad Jones chair of the Indian Affairs Citizens Advisory Committee.
"For our purpose there's only one message," said Budelmann. "Which is, comply with the law."
The legal proceedings in this case are just at the beginning stages, but one could only hope that this a first step towards a fundamental change in the way we approach this problem and that other District Attorneys do their jobs and enforce the law to protect their taxpayers.
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