Oklahoma § 68-305 - Stamps required - Seizure

§ 68-305. Stamps required - Seizure

A. Every wholesaler doing business within this state and

required to secure a license as provided under Section 304 of this

title shall, upon withdrawal from storage, and before making any

sale or distribution of cigarettes for consumption thereof, affix or

cause the same to have affixed thereto the stamp or stamps as

required by Section 301 et seq. of this title. It shall be the duty

of the wholesaler to supply the necessary stamps to cover any and

all drop shipments of cigarettes billed to the retailer or consumer

by the wholesaler; and the wholesaler shall be liable to the

Oklahoma Statutes - Title 68. Revenue and Taxation

Oklahoma Tax Commission to perform this service. Wholesalers may

apply stamps only to cigarette packages that they have received

directly from a manufacturer or importer of cigarettes who possesses

a valid and current permit under Section 5712 of Title 26 of the

United States Code.

B. Every retailer who has received unstamped cigarettes from a

manufacturer or wholesaler not required to secure a license as

provided for under Section 304 of this title, or to affix stamps as

required under subsection A of this section, shall, within seventytwo (72) hours, excluding Sundays and holidays, from the time such

cigarettes come into the retailer's possession, and before making

any sale or distribution for consumption thereof, affix stamps upon

all cigarette packages in the proper denomination and amount, as

required by Section 302 of this title.

C. It shall be unlawful for any person to sell or consume

cigarettes on which the tax, as levied by Section 301 et seq. of

this title, has not been paid, and which are not contained in

packages to which are securely affixed the stamps evidencing payment

of the tax imposed by Section 301 et seq. of this title.

D. If, upon examination of invoices or from other

investigations, the Tax Commission finds that cigarettes have been

sold without stamps affixed as required by Section 301 et seq. of

this title, the Tax Commission shall have the power to require such

person to pay to the Tax Commission a sum equal to twice the amount

of the tax due. If, under the same circumstances, a person is

unable to furnish evidence to the Tax Commission of sufficient stamp

purchases to cover unstamped cigarettes purchased, the prima facie

presumption shall arise that such cigarettes were sold without

proper stamps being affixed thereto.

E. 1. All contraband cigarettes upon which taxes are imposed

by Section 301 et seq. of this title and all cigarettes stamped,

sold, offered for sale or imported into this state in violation of

the provisions of Section 305.1 of this title which shall be found

in the possession, custody or control of any person, for the purpose

of being consumed, sold or transported from one place to another in

this state, for the purpose of evading or violating the provisions

of Section 301 et seq. of this title, or with intent to avoid

payment of the tax imposed hereunder, and any automobile, truck,

conveyance or other vehicle whatsoever used in the transportation of

such cigarettes, and all paraphernalia, equipment or other tangible

personal property incident to the use of such purposes, found in the

place, building, vehicle or vehicles, where such cigarettes are

found, may be seized by any authorized agent of the Tax Commission,

or any sheriff, deputy sheriff, constable or other peace officer

within the state, without process. The same shall be, from the time

of such seizure, forfeited to the State of Oklahoma, and a proper

Oklahoma Statutes - Title 68. Revenue and Taxation

proceeding filed to maintain such seizure and prosecute the

forfeiture as herein provided.

2. All such cigarettes so seized shall first be listed and

appraised by the officer making such seizure and turned over to the

Tax Commission and a receipt therefor taken. The person making such

seizure shall immediately make and file a written report thereof,

showing the name of the person making such seizure, the place where

and the person from whom such property was seized, and an inventory

and appraisement thereof, at the usual and ordinary retail price of

such articles received, to the Tax Commission, and the Attorney

General, in the case of cigarettes stamped, sold, offered for sale

or imported into this state in violation of the provisions of

Section 305.1 of this title. Within sixty (60) days of seizure, the

person from whom the property was seized may file a request for

hearing with the Tax Commission or the Attorney General to show why

the seized property should not be forfeited and destroyed. If a

hearing is requested, the owner of the cigarettes shall be given at

least ten (10) days' notice of the hearing. If no request for

hearing is filed within the time provided, the property seized will

be forfeited and destroyed.

3. Any and all such vehicles and property so seized shall first

be listed and appraised by the officer making such seizure and

turned over to the county sheriff of the county in which the seizure

is made and a receipt therefor taken. The person making such

seizure shall immediately make and file a written report thereof,

showing the name of the person making such seizure, the place where

and the person from whom such property was seized, and an inventory

and appraisement thereof, at the usual and ordinary retail price of

such articles received, to the Tax Commission. The district

attorney of the county in which the seizures are made shall, at the

request of the Tax Commission or Attorney General, file in the

district court forfeiture proceedings in the name of the State of

Oklahoma, as plaintiff, and in the name of the owner or person in

possession, as defendant, if known, and if unknown in the name of

the property seized. The clerk of the court shall issue summons to

the owner or person in whose possession such property was found,

directing the owner or person to answer within ten (10) days. If

the property is declared forfeited and ordered sold, notice of the

sale shall be posted in five public places in the county not less

than ten (10) days before the date of sale. The proceeds of the

sale shall be deposited with the clerk of the court, who shall after

deducting costs, including the costs of sale, pay the balance to the

Tax Commission as cigarette tax collected, or in the case of

vehicles and property seized in connection with cigarettes seized as

being in violation of the provisions of Section 305.1 of this title,

to the Attorney General. The Attorney General shall remit the

amount of cigarette tax, if any be due, including all penalties and

Oklahoma Statutes - Title 68. Revenue and Taxation

interest due, to the Tax Commission as cigarette tax collected and

shall deposit the remainder to the revolving fund created in Section

305.2 of this title.

4. The seizure of cigarettes shall not relieve the person from

whom such cigarettes were seized from any prosecution or the payment

of any penalties provided for under Section 301 et seq. of this

title.

5. The forfeiture provisions of Section 301 et seq. of this

title shall only apply to persons having possession of or

transporting cigarettes with intent to barter, sell or give away the

same; provided, that such possession of cigarettes in any quantity

of five or more cartons of ten packages each shall be prima facie

evidence of intent to barter, sell or give away such cigarettes in

violation of the provisions of Section 301 et seq. of this title.

F. Any person, including distributing agents, wholesalers,

carriers, retailers and consumers, having possession of unstamped

cigarettes in this state shall be liable for the tax on such

cigarettes in case the same are lost, stolen or unaccounted for, in

transit, storage or otherwise, and in such event a presumption shall

exist for the purposes of taxation, that such cigarettes were used

and consumed in Oklahoma.

Added by Laws 1965, c. 195, § 2, emerg. eff. June 10, 1965. Amended

by Laws 1994, c. 278, § 9, eff. Sept. 1, 1994; Laws 1999, c. 162, §

1, eff. June 16, 1999; Laws 2003, c. 475, § 3, eff. Nov. 1, 2003;

Laws 2008, c. 378, § 8, emerg. eff. June 4, 2008; Laws 2009, c. 434,

§ 3, eff. Jan. 1, 2010; Laws 2015, c. 317, § 1, eff. Nov. 1, 2015;

Laws 2018, c. 66, § 4, eff. July 1, 2018.