The key cannabis tax problem is Internal Revenue Code Section 280E. That’s the piece of the federal tax law which prevents even legal cannabis businesses from writing off most “normal’ business deductions and creates a very high effective tax rate. Section 280E was enacted by Congress in direct response to a case in the United States Tax Court that allowed a taxpayer to deduct expenses involved in selling amphetamines, cocaine, and cannabis; however, the case, and the law predate the widespread legalization of cannabis by many states.
Understanding Section 280E: Key Cannabis Tax Law IssueSection 280E is so short (for the tax law anyway) that is worth quoting.
COGS Deduction: A Strategy for Cannabis Business Tax SavingsNo deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.
As our cannabis tax lawyers know, cannabis is a Schedule I controlled substance. Although the text of the tax law seems to deny ANY deductions, because Congress was concerned that denying deductions for Cost of Goods Sold (COGS) to a cannabis dispensary might be unconstitutional, as a tax on gross receipts, it allowed cannabis businesses (and indeed any business engaged in selling controlled substances) to continue to deduct that portion of its expenses which are allocable to COGS. Thus, one method of maximizing deductions is to allocate as much as possible to COGS. Click here to read cannabis tax lawyer Dennis Brager’s article published in Cannabis Venture discussing some of the pushback from the IRS on this issue.
Income Reporting Issues in Cash-Based Cannabis BusinessesAnother vulnerability that cannabis dispensaries have is related to the cash nature of their businesses. Because it is very difficult for cannabis businesses to maintain a bank account, they are subject to claims by the IRS that not all of their income is being reported. In cases where the IRS alleges substantial non-reporting of income, cannabis dispensaries and their owners are exposed to both criminal and civil tax penalties, including the 75 percent civil tax fraud penalty.
Defending Against Criminal and Civil Tax Penalties in Cannabis IndustryOur cannabis tax lawyers have years of experience in defending against these types of allegations by the IRS.
Navigating Sales Tax Audits for Cannabis Dispensaries by the CDTFACannabis tax problems are not limited to tax audits by the IRS. Our cannabis tax dispute attorneys have seen sales tax audits by the California Department of Tax and Fee Administration (CDTFA) formerly known as the California State Board of Equalization (SBE or BOE) claiming that the cannabis dispensaries did not report all of their income for California Sales Tax purposes. Without good records the CDTFA can be expected to make wild guesses about the amount of income based upon such flimsy evidence as the number of people walking through the door. Nevertheless, when the CDTFA makes a determination, it is up to the cannabis dispensary to prove that the CDTFA’s estimate is wrong. Worse yet the owners of the cannabis dispensary can become personally liable for any unpaid sales taxes. Our cannabis tax attorneys have had decades of experience helping all types of business fight these types of sales tax problems.
Challenges in Proving Expenses for Unbanked Cannabis BusinessesConversely, because cannabis dispensaries don’t have a bank account to write checks on it becomes difficult to prove that expenses have been paid, even if they are of a type which can be deducted.
Payroll Tax Problems in the Cannabis Industry: Employee vs Independent ContractorCannabis businesses are also not immune from traditional payroll tax problems such as whether workers are employees or independent contractors. This is another area where if the wrong decision is made the owners and operators of cannabis dispensaries may become personally liable for payroll taxes which the IRS claims should have been deducted from payments to workers and turned over to the IRS. On top of that they are subject to possible penalties for failure to deposit payroll taxes electronically. The IRS has issued guidelines which ease this particular cannabis tax problem, but the guidelines still require cannabis businesses to make an effort to pay payroll taxes electronically.
Seek Expert Help: Consult Our Cannabis Tax Law AttorneysIf your cannabis business is contacted by the IRS or the CDTFA, contact our office for a confidential consultation with one of our cannabis tax lawyers.