Justice Leslie Stein
HCI Distribution, a subdivision of a federally recognized Indian tribe in Nebraska, bought 26,000 cartons of cigarettes made on the St. Regis Mohawk Indian Reservation. The truck transporting the cigarettes to HCI in Nebraska was stopped by Border Patrol agents, who contacted the New York State Police (NYSP). In a consented search, the NYSP found the cigarettes lacked state tax stamps. The district attorney ordered the cigarettes seized. HCI’s Article 78 proceeding sought the cigarettes’ return. The NYSP challenged supreme court’s ruling that it lacked legal authority to seize the cigarettes. Third Department reversed. Because the harm caused HCI by NYSP’s alleged excess of power was economic, HCI did not show it could not be made whole by monetary damages. Discussing Tax Law §471, Third Department noted that HCI produced no evidence that the cigarettes would not be returned to New York. The NYSP’s evidence—including HCI’s shipment records and the driver’s statement—suggested HCI regularly transports back into New York cigarettes it bought from the same manufacturer. Thus, HCI failed to show that the transaction was a genuine out-of-state transaction exempt from taxes in order to overcome the presumption of taxability.
