In my view, the State has validly imposed both a tax obligation on the cigarettes sold by the Cayuga Nation to the public and a mechanism by which those taxes are to be collected under Tax Law § 471. Because the Nation has admittedly refused to fulfill its collection and remittance obligations under the statute, the sale of unstamped cigarettes from the Nation’s two convenience stores is properly a subject for criminal prosecution. Accordingly, I respectfully dissent.
New York’s Tax Law § 471 imposes a cigarette excise tax. That provision applies to all cigarettes possessed in the state for sale, except that “no tax shall be imposed on cigarettes sold under such circumstances that this state is without power to impose such tax” (§ 471 [1]). Tax Law § 471 (2) sets forth the mechanism for the collection of the taxes imposed by the State on the cigarette sales. Specifically, a State-licensed stamping agent is required to advance the amount of the tax by purchasing stamps from the State and affixing them to each package of cigarettes. The stamp cost is built into the cost of the cigarettes and is passed along to the consumer (§ 471 [3]). The penalty for a violation of the taxing statute is found in Tax Law § 1814, which provides that any person who “willfully attempts in any manner to evade or defeat the taxes imposed [on cigarette sales] . . . shall be guilty of a class E felony” (§ 1814 [a]). Thus, pursuant to this section of New York’s Tax Law, all cigarettes that *655the State has the power to tax are required by law to be stamped.
It is undisputed that the State has the power to tax a majority of the Nation’s cigarette sales—those cigarettes sold to non-Indians (see Department of Taxation & Finance of N.Y. v Milhelm Attea & Bros., 512 US 61, 64 [1994] [explaining that “(o)n-reservation cigarette sales to persons other than reservation Indians, however, are legitimately subject to state taxation”]). The Nation contends, however, that the State does not have the power to tax any of its cigarette sales because the Tax Department has not implemented the coupon system adopted in section 471-e of the Tax Law.
Section 471-e requires (as does section 471) that all cigarettes sold on an Indian reservation to non-Indians be taxed, and evidence of such tax will be by means of an affixed cigarette tax stamp (§ 471-e [1] [a]). The provision also includes a tax exemption: “qualified Indians may purchase cigarettes for such qualified Indians’ own use or consumption exempt from cigarette tax on their nations’ or tribes’ qualified reservations” (id.). It is acknowledged, however, that section 471-e of the Tax Law is not in effect.* Therefore, contrary to the belief of my colleagues in the majority, it provides no basis for immunity from New York’s cigarette tax laws.
The majority further argues that the Nation can rely on the plain language of Tax Law § 470 (16) as a basis for its statutory exemption. That provision, however, is under the definition section of the Tax Law, and defines the term “qualified reservation”: a term used only in section 471-e, which the parties concede is not in effect. Thus, section 470 (16) merely defines a term whose meaning, unless and until section 471-e becomes effective, has no legal significance.
Without section 471-e’s statutory tax exemption in effect, the Nation may not foreclose the State from imposing and collecting taxes on cigarettes sold at the stores. Although the Nation cites to a number of cases which have held that a state cannot tax on-reservation cigarette sales to members of the *656reservation’s governing tribe for their own use, those cases were decided under the principles of Indian sovereignty (see e.g. Department of Taxation & Finance of N.Y. v Milhelm Attea & Bros., 512 US 61, 64 [1994]; Moe v Confederated Salish & Kootenai Tribes of Flathead Reservation, 425 US 463 [1976]), and in the wake of the United States Supreme Court’s decision in City of Sherrill, are irrelevant to any claim by the Nation. In City of Sherrill v Oneida Indian Nation of N. Y. (544 US 197 [2005]), the Supreme Court concluded that an Indian Nation cannot unilaterally revive its ancient sovereignty, in whole or in part, over later-acquired parcels (544 US at 214). Thus, as even the majority recognizes, the Nation may not assert sovereign authority over its store properties for the purpose of avoiding taxes (see e.g. majority op at 642-643).
Even assuming that the statutory immunity provided for under section 471-e was in effect and was applicable to the Nation, the statute by its very language still requires that all cigarettes sold on an Indian reservation to non-Indians be taxed, and evidence of such tax will be by means of an affixed cigarette tax stamp (Tax Law § 471-e [1] [a]). Although section 471-e would alter the collection mechanism imposed on the Nation for cigarettes sold to its Indian members, it would in no way alter the tax obligation of the Nation for cigarettes sold to nonIndians (see Matter of New York Assn. of Convenience Stores v Urbach, 92 NY2d 204, 214 [1998] [“the repeal (of the regulations that preceded the enactment of section 471-e) does not eliminate the statutory liability for taxes as they relate to sales on Indian reservations to nonexempt individuals”]).
Simply put, the lack of implementing regulations under section 471-e, a statutory provision that is not in effect, does not affect the tax obligation of the Cayuga Nation to sell only tax-stamped cigarettes. Consequently, I would vote to reverse the order of the Appellate Division and answer the certified question in the negative.
Chief Judge Lippman and Judges Ciparick and Jones concur with Judge Graffeo; Judge Pigott dissents and votes to reverse in a separate opinion in which Judges Read and Smith concur.
Order modified, etc.
The Legislature provided that the amended version of Tax Law § 471-e “shall take effect March 1, 2006, provided that any actions, rules and regulations necessary to implement the provisions of [the statute] on its effective date are authorized and directed to be completed on or before such date” (L 2005, ch 63, part A, § 4). In Day Wholesale, Inc. v State of New York (51 AD3d 383 [4th Dept 2008]), the Appellate Division concluded that the amended version of Tax Law § 471-e was not “in effect” based on the failure of the Department of Taxation and Finance to take action to implement that statute by issuing necessary coupons. Because the parties do not challenge that holding on this appeal, I assume, for purposes of this appeal, the correctness of the decision.