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Barry E. Snyder, Sr., Doing Business as Seneca Hawk, Appellant, v. James W. Wetzler, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents

84 N.Y.2d 941, 644 N.E.2d 1369, 620 N.Y.S.2d 813 (1994).
December 1, 1994

3 No. 188 [1994 NY Int. 195] Decided December 1, 1994
This memorandum is uncorrected and subject to revision before publication in the New York Reports. Timothy B. Dyk, for appellant.
Lew A. Millenbach, for respondents.
Joseph F. Crangle for Seneca Nation of Indians, et al., amici curiae.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

In this action for declaratory and injunctive relief, the issue is whether the State Department of Taxation and Finance may require plaintiff, an enrolled member of the Seneca Nation, to collect and remit sales, use and excise taxes on sales of cigarettes and motor fuel to non-Indian consumers at plaintiff's retail business on the Cattaraugus Reservation. Because the issue is directly governed by controlling precedent, we affirm the order of the Appellate Division dismissing plaintiff's complaint.

The United States Supreme Court has clearly established that State tax statutes requiring Indian retailers to collect and remit taxes on sales to non-Indian purchasers, and to keep the records necessary to ensure compliance, violate neither the Commerce Clause nor the constitutional proscription against direct taxation of Indians absent explicit Congressional consent (see, Oklahoma Tax Commn. v Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 US 505; Washington v Confederated Tribes of the Colville Indian Reservation, 447 US 134; Moe v Confederated Salish & Kootenai Tribes, 425 US 463). To the extent plaintiff contends that the State tax statutes at issue violate either the Supremacy Clause or New York law, his arguments are unpreserved and cannot be considered on this appeal. Plaintiff's complaint asserted only violations of the Commerce Clause and "the Laws of the United States enacted pursuant thereto".

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Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.