Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2014
 

Cigarette and Tobacco Products Tax Law

CHAPTER 10. VIOLATIONS.


CHAPTER 10. VIOLATIONS.

30471. Criminal penalties. Any person who fails or refuses to file any report required to be made, or who fails or refuses to furnish a supplemental report or other data required by the board, or who fails or refuses to allow an inspection by the board, pursuant to Section 30435, or who renders a false or fraudulent report is guilty of a misdemeanor and subject to a fine not to exceed one thousand dollars ($1,000) for each offense.

History.—Stats. 1983, Ch. 1092, in effect September 27, 1983, operative January 1, 1984, substituted "one thousand dollars ($1,000)" for "five hundred dollars ($500)" after "exceeding." Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004, added "fails or refuses to allow an inspection by the board, pursuant to Section 30435, or who" after "required by the board, or who", and substituted "not to exceed" for "of not exceeding" after "subect to a fine".

30472. Criminal penalties. Any person required to make, render, sign, or verify any report who makes any false or fraudulent report with intent to defeat or evade the determination required by law to be made is guilty of a misdemeanor. He shall for each offense be fined not less than three hundred dollars ($300) and not more than five thousand dollars ($5,000), or be imprisoned for not exceeding one year in the county jail, or be subject to both fine and imprisonment, in the discretion of the court.

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30473. Penalty for counterfeiting. Any person who falsely or fraudulently makes, forges, alters, reuses or counterfeits any stamp or meter impression provided for or authorized under this part, or tampers with any metering machine authorized under this part, or causes or procures to be falsely or fraudulently made, forged, altered, reused, or counterfeited, any such stamp or meter impression or knowingly and willfully utters, publishes, passes, or tenders as genuine any such false, forged, altered, reused, or counterfeited stamp or meter impression, for the purpose of evading the tax imposed by this part, is guilty of a felony and subject to imprisonment for two, three, or four years, or to a fine of not less than one thousand dollars ($1,000) and not more than twenty-five thousand dollars ($25,000), or to both fine and imprisonment.

History.—Stats. 2006, Ch. 501 (AB 1749), in effect January 1, 2007, added a comma after "reused" throughout text, added a comma after "three", substituted "twenty-five" for "ten" after "and not more than", and substituted "($25,000)" for "($10,000)" after "thousand dollars".

30473.5. Penalty for fraudulent stamps. (a) Any person who possesses, sells, or offers to sell, or buys or offers to buy, any false or fraudulent stamps or meter impressions provided for or authorized under this part in a quantity of less than 2,000 is guilty of a misdemeanor, punishable by a fine not to exceed five thousand dollars ($5,000) or imprisonment not exceeding one year in a county jail, or by both the fine and imprisonment.

(b) Any person who possesses, sells, or offers to sell, or buys or offers to buy any false or fraudulent stamps or meter impressions provided for or authorized under this part in a quantity of 2,000 or greater, is guilty of a misdemeanor, punishable by a fine not to exceed fifty thousand dollars ($50,000) or imprisonment not exceeding one year in a county jail, or by both the fine and imprisonment. The court shall order any fines assessed be deposited in the Cigarette and Tobacco Products Compliance Fund.

(c) The board shall destroy any stamps seized under this section.

History.—Added by Stats. 1996, Ch. 1087, in effect January 1, 1997. Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004, added subdivision letter (a) to former sole paragraph, added "or" after "or offers to sell,", and substituted "in a quantity of less than 2,000 . . . or by both the fine and imprisonment" in subdivision (a); added subdivisions (b) and (c).

30474. Penalty for selling unstamped cigarettes. (a) Any person who knowingly possesses, or keeps, stores, or retains for the purpose of sale, or sells or offers to sell, any package of cigarettes to which there is not affixed the stamp or meter impression required to be affixed under this part, when those cigarettes have been obtained from any source whatever, is guilty of a misdemeanor and shall for each offense be fined an amount not to exceed twenty-five thousand dollars ($25,000) or be imprisoned for a period not to exceed one year in the county jail, or, at the discretion of the court, be subject to both fine and imprisonment in the county jail.

(b) In addition to the fine or sentence, or both, each person convicted under this section shall pay one hundred dollars ($100) for each carton of 200 cigarettes, or portion thereof, if that person knowingly possessed, or kept, stored, or retained for the purpose of sale, or sold or offered for sale in violation of this section, as determined by the court. The court shall direct that 50 percent of the penalty assessed be transmitted to the local prosecuting jurisdiction, to be allocated for costs of prosecution, and 50 percent of the penalty assessed be transmitted to the board. The board may collect the penalty due pursuant to this section in the manner prescribed in Section 30483.

(c) This section shall not apply to a licensed distributor that possesses, keeps, stores, or retains cigarettes before the necessary stamp or meter impression is affixed.

History.—Stats. 1968, p. 2250, in effect November 13, 1968, revised the first sentence and added the second sentence. Stats. 1983, Ch. 1092, in effect September 27, 1983, operative January 1, 1984, substituted "one thousand dollars ($1,000)" for "five hundred dollars ($500)" after "not more than" in the first sentence, and substituted "fifty dollars ($50)" for "twenty-five dollars ($25)" after "pay" in the second sentence. Stats. 1993, Ch. 1113, in effect January 1, 1993, added commas following "stores" in the first and second sentence; substituted "those" for "such" before "cigarettes have been" in the first sentence; substituted "one hundred dollars ($100)" for "fifty dollars ($50)" in the second sentence; and added the third sentence. Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004, established the former first sentence as subdivision (a), substituted "an amount not to exceed" for "not more than" after "offense be fined", deleted "," after "($1,000)", and substituted "a period not to exceed . . . imprisonment in the county jail" for "not exceeding one year in the county jail, or be subject to both fine and imprisonment, in the discretion of the court" in subdivision (a); established the remaining former paragraph as subdivision (b), and added "if that person" after "or portion thereof," in the first sentence of subdivision (b); and added subdivision (c). Stats. 2006, Ch. 501 (AB 1749), in effect January 1, 2007, substituted "twenty-five" for "one" after "not to exceed", substituted "($25,000)" for "($1,000)" after "thousand dollars", and deleted "the" after "subject to both" in subdivision (a). Stats. 2011, Ch. 727 (AB 242), in effect January 1, 2012, substituted "board" for "State Board of Equalization" after "penalty assessed be transmitted to the" in the second sentence of, and added the last sentence to, subdivision (b); substituted "shall" for "does" after "This section" in subdivision (c).

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30474.1. Penalty for selling or possessing counterfeit cigarettes or tobacco products. (a) Notwithstanding any other provision of law, the sale or possession for sale of counterfeit tobacco products, or the sale or possession for sale of counterfeit cigarettes by a manufacturer, importer, distributor, wholesaler, or retailer shall result in the seizure of the product by the board or any law enforcement agency and shall constitute a misdemeanor punishable as follows:

(1) A violation with a total quantity of less than two cartons of cigarettes shall be a misdemeanor punishable by a fine not to exceed five thousand dollars ($5,000), or imprisonment not to exceed one year in a county jail, or both fine and imprisonment, and shall also result in the revocation by the board of the manufacturer, distributor, or wholesale license.

(2) A violation with a quantity of two cartons of cigarettes or more shall be a misdemeanor punishable by a fine not to exceed fifty thousand dollars ($50,000) or imprisonment not to exceed one year in a county jail, or both fine and imprisonment, and shall also result in the revocation by the board of the manufacturer, distributor, or wholesaler license.

(b) A court shall consider a defendant's ability to pay when imposing fines pursuant to this section.

(c) For the purposes of this section, counterfeit cigarette and tobacco products include cigarette and tobacco products that have false manufacturing labels, false or fraudulent stamps or meter impressions, or a combination thereof.

(d) The board shall seize and destroy any cigarettes or other tobacco products forfeited to the state under this section.

History.—Added by Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004. Stats. 2006, Ch. 501 (AB 1749), in effect January 1, 2007, deleted "the" after "or both" in paragraphs (1) and (2) and after "fine and" in paragraph (1) of subdivision (a); and deleted the former subdivision (e) which stated that "This section shall remain in effect until January 1, 2010, and as of that date shall be repealed."

30474.5. Competitive grant program. (a) This section shall be known as and may be cited as the Black Market Cigarette and Street Corruption Prevention Act.

(b) The Legislature finds that the sale of black-market, untaxed cigarettes has resulted in the loss of hundreds of millions of dollars in revenue to the state, robbing state health care and programs designed to help children.

(c) It is the intent of the Legislature, by enacting the act adding this section, to provide resources to prosecutors and local law enforcement personnel, and to enable local jurisdictions to develop a multiagency task force for the purpose of significantly reducing the sales of black-market cigarettes and creating a deterrent to those sales through the focused investigation and prosecution of sales of black-market cigarettes, and other associated offenses and related crimes.

(d) In addition to the fine or sentence, or both, imposed by Section 30474, each person convicted under Section 30474 shall pay one hundred dollars ($100) for each carton of 200 cigarettes, or portion thereof, knowingly possessed, or kept, stored, or retained for the purpose of sale, or sold or offered for sale in violation of Section 30474, as determined by the court. The court shall direct that the penalty of one hundred dollars ($100) assessed under this section shall be transmitted to the Controller for deposit in the Unlawful Sales Reduction Fund, which is hereby created. Upon appropriation by the Legislature, the moneys in the fund shall be allocated to the Office of Criminal Justice Planning for the funding of a competitive grant program to be established by the Legislature to award grants to local jurisdictions for the purpose of establishing a multiagency task force, the composition of which shall include prosecutors and local law enforcement personnel and may include state law enforcement personnel, for the purpose of significantly reducing the sales of black-market cigarettes, and creating a deterrent to those sales through the focused investigation and prosecution of sales of black-market cigarettes and other associated offenses and related crimes. No more than 5 percent of the amount transmitted from the penalty of one hundred dollars ($100) assessed under this section may be retained to fund the costs of administering the competitive grant program.

(e) The Office of Criminal Justice Planning shall consult with the State Board of Equalization in the administration of the competitive grant program.

(f) (1) The one hundred dollar ($100) penalty for each carton of 200 cigarettes knowingly possessed, or kept, stored, or retained for the purpose of sale, or sold, or offered for sale in violation of Section 30474, as authorized under subdivision (d), shall only be imposed for the period beginning on January 1, 2003, and ending on January 1, 2006.

(2) This section shall remain in effect until December 1, 2006, or until all the moneys remaining in the Unlawful Sales Reduction Fund on January 1, 2006, have been appropriated by the Legislature for allocation to the Office of Criminal Justice Planning for funding the competitive grant program established under this section, whichever occurs later.

History.—Added by Stats. 2002, Ch. 687 (AB 2205), in effect January 1, 2003.

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30475. Penalty for violation of transporter provisions. (a) Any transporter who transports cigarettes or tobacco products upon the highways, roads or streets of this state without having obtained a permit or without having a permit in the transporting vehicle as prescribed by Section 30431 or without having in the transporting vehicle the invoices, bills of lading or delivery tickets for the cigarettes or tobacco products as prescribed by Section 30432 is guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousand dollars ($1,000) or be imprisoned for not more than one year in the county jail, or be subject to both fine and imprisonment in the discretion of the court.

(b) Any transporter who, with intent to defeat or evade or with intent to aid another to defeat or evade the taxes imposed by this part, at any given time transports 40,000 or more cigarettes or tobacco products with a value of five thousand dollars ($5,000) or more upon the highways, roads or streets of this state without having obtained a permit or without having a permit in the transporting vehicle as prescribed by Section 30431 or without having in the transporting vehicle the invoices, bills of lading or delivery tickets for the cigarettes or tobacco products as prescribed by Section 30432 shall be punished by imprisonment in the county jail for not more than one year, or in the state prison, or by fine of not more than twenty-five thousand dollars ($25,000), or be subject to both fine and imprisonment in the discretion of the court.

History.—Added by Stats. 1967, p. 2526, operative August 1, 1967, in part, formerly section 30433. Stats. 1968, p. 2122, in effect November 13, 1968, added the subdivision letters and the text of (b). Stats. 1989, Ch. 634, in effect September 21, 1989 added "or tobacco products" after "cigarettes" throughout text, and added "or tobacco . . . ($5,000) or more" after "cigarettes" in subdivision (b). Stats. 2006, Ch. 501 (AB 1749), in effect January 1, 2007, deleted "for not less than one year nor more than five years" after "or in the state prison", substituted "twenty-five" for "five" after "of not more than", and substitute "($25,000)" for "($5,000)" after "thousand dollars" in subdivision (b).

30476. Penalty for placing cigarettes without tax indicia in vending machine. Any person in possession or control of, or having access to, a cigarette vending machine who knowingly or willfully places for sale in the vending machine, any cigarettes not contained in packages to which are affixed California tax stamps or meter impressions, is guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousand dollars ($1,000) or be imprisoned for not more than one year in the county jail, or be subject to both fine and imprisonment at the discretion of the court.

History.—Added by Stats. 1967, p. 2526, operative August 1, 1967.

30477. Violation of law. Any violation of the provisions of this part, except as otherwise provided, is a misdemeanor and is punishable as such.

History.—Formerly section 30476, renumbered and added without change by Stats. 1967, p. 2526, operative August 1, 1967.

30478. Penalty; retailer purchasing from unauthorized persons. It shall be a misdemeanor for any retailer, as defined in Section 6015, to knowingly purchase cigarettes or tobacco products for resale from any person except a distributor or wholesaler licensed pursuant to this part.

History.—Added by Stats. 1968, p. 2251, in effect November 13, 1968. Stats. 1989, Ch. 634, in effect September 21, 1989, added "or tobacco products" after "cigarettes".

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30479. Penalty; retailer convicted twice. If any retailer, as defined in Part 1 (commencing with Section 6001) of this division, is convicted under any provision of this part and has any previous conviction within a 10-year period under this part, the State Board of Equalization shall revoke all permits issued to such person under the Sales and Use Tax Law for a period of one year.

History.—Added by Stats. 1968, p. 2251, in effect November 13, 1968.

30480. Felony offense. Notwithstanding any other provision of this part, any person who violates this part with intent to defeat or evade the determination of an amount due required by law to be made is guilty of a felony when the amount of tax liability aggregates twenty-five thousand dollars ($25,000) or more in any 12-consecutive-month period. The determination shall be approved by the executive director or his or her designee. Each offense shall be punished by a fine of not less than five thousand dollars ($5,000) and not more than twenty thousand dollars ($20,000), or imprisonment for 16 months, two years, or three years, or by both the fine and imprisonment in the discretion of the court.

History.—Added by Stats. 1987, Ch. 1064, effective January 1, 1988. Stats. 1989, Ch. 654, in effect January 1, 1990, substituted "Deputy Director, Business Taxes," for "administrator of the excise taxes". Stats. 1995, Ch. 555, in effect January 1, 1996, substituted "any person who violates this part" for "any violation of this part by" after "of this part," in the first sentence, and substituted "executive director or his or her" for "Deputy Director, Business Taxes, or that person's" after "approved by the" and added "by" after "three years, or" in the second sentence.

30481. Prosecution for violation. Any prosecution for violation of any of the penal provisions of this part shall be instituted within six years after commission of the offense.

History.—Added by Stats. 1986, Ch. 1361, effective January 1, 1987. Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004, substituted "six" for "three" after "instituted within" and deleted "or within two years after the violation is discovered, whichever is later" after "of the offense".

Note.—Sec. 41, Stats. 1986, Ch. 1361 required that:

(a) On January 15 of each year from 1988 to 1992, inclusive, the State Board of Equalization and the Franchise Tax Board shall submit a report to the Legislature on implementation of the provisions of this act, with the exception of Section 40 of this act (for which separate reporting requirements are set out).

(b) The revenue and taxation policy committees of each house of the Legislature shall hold a public hearing no later than June 30 of each year from 1988 to 1992, inclusive, on the reports submitted pursuant to subdivision (a).

(c) The intent of this section is to assure the Legislature the opportunity to oversee the implementation of this act. The intent of the Legislature in enacting this act is to improve enforcement and voluntary compliance with the tax system and cash-pay reporting rules. The intent of the Legislature in enacting this act is not to cause harassment of or undue burden on innocent taxpayers.

Sec. 41 applies to the following Revenue and Taxation Code Sections: 6069, 6071, 6366, 6366.1, 6368, 6368.1, 6452, 6455, 6776, 6777, 7154, 8404, 9355, 30481, 32556, 40188, 41143, and 44186.

30482. Reimbursement of investigation and prosecution costs. Any person convicted of a crime under this part may be charged the costs of investigation and prosecution at the discretion of the court.

All moneys remitted to the board under this part shall be transmitted to the Treasurer who shall deposit it into the State Treasury and credit it to the Cigarette Tax Fund.

History.—Added by Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004.

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30483. Restitution order collection. (a) (1) Restitution orders or any other amounts imposed by a court of competent jurisdiction for criminal offenses upon a person or any other entity that are due and payable to the board may be collected by the board in any manner provided by law for collection of a delinquent cigarette and tobacco products tax liability, including, but not limited to, issuance of an order and levy under Article 4 (commencing with Section 706.070) of Chapter 5 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure in the manner provided for earnings withholding orders for taxes.

(2) Amounts imposed by a court of competent jurisdiction as an order of restitution for criminal offenses shall be treated as final and due and payable to the State of California on the date that amount is established on the records of the board.

(b) This part shall apply to amounts collected under this section in the same manner and with the same force and effect and to the full extent as if the language of those laws had been incorporated in full into this section, except to the extent that any provision is either inconsistent with this section or is not relevant to this section.

(c) Notwithstanding Chapter 6 (commencing with Section 30361), a refund or credit shall not be allowed for any amounts paid or payments applied under this section.

(d) Amounts authorized to be collected pursuant to this section may accrue interest at the greater of the rate applicable to the amounts being collected or the rate provided under Section 6591.5 from and after the date the amounts are established on the records of the board.

(e) Amounts authorized to be collected pursuant to this section shall not be subject to any statute of limitations set forth in Chapter 5 (commencing with Section 30301).

(f) Notwithstanding Chapter 14 (commencing with Section 7150) of Division 7 of Title 1 of the Government Code, any portion of the amounts authorized to be collected under this section that remain unsatisfied may be collected by the recording of a notice of state tax lien. The board may record or extend a recorded notice of state tax lien at any time until the amount due, including any accrued interest, is paid in full.

(g) This section shall apply on and after January 1, 2012, to amounts authorized to be collected pursuant to this section that are due and payable to the board before, on, or after January 1, 2012.

History.—Added by Stats. 2011, Ch. 727 (AB 242), in effect January 1, 2012.