U.S. Citizenship Could Be Denied For Applicants Involved In Cannabis

Beware That U.S. Citizenship Could Be Denied For Applicants Involved In Cannabis

USCIS Issues Policy Guidance Clarifying How Federal Controlled Substances Law Applies to Naturalization Determinations.

The United States Citizenship and Immigration Services (“USCIS”) which is a branch of the U.S. Department of Homeland Security issued guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

The policy of USCIS is that any involvement with marijuana is indicative of a lack of “moral character.” Moral character is a prerequisite for people seeking U.S. citizenship. Therefore, those persons applying for U.S. citizenship may be denied if they have personally used marijuana, or if they have been employed in the cannabis industry — including in jurisdictions where such activities are legally authorized

States Legalizing Cannabis.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions.

Medical marijuana is legal in 33 states.

The medical use of cannabis is legal (with a doctor’s recommendation) in 33 states and Washington DC. Those 33 states being Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington and West Virginia. The medical use of cannabis is also legal in the territories of the Northern Mariana Islands, Guam and Puerto Rico.

Recreational marijuana is legal in 10 states. 

Ten states and Washington DC, have legalized marijuana for recreational use — no doctor’s letter required — for adults over the age of 21. Those ten states being Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington and the territory of Guam. 

Cannabis Still Illegal Under Federal Law.

Under Federal law (Controlled Substances Act 21 U.S.C. 801) marijuana is designated as a Schedule I controlled substance due to the historical belief that it has a high potential for abuse, no currently accepted medical use in treatment, and lack of accepted safety for use under medical supervision. USCIS is carrying that mandate stating that the manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to adverse immigration consequences.

But For Those Persons Who Are U.S. Citizens, Taxes Remain The Biggest Risk.

It still remains to be seen when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  So it is best to be proactive and engage an experienced cannabis tax attorney in your area who is highly skilled in the different legal and tax issues that cannabis businesses face.  Let the cannabis tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.

Guam legalizes recreational Marijuana cannabis

U.S. Territory Of Guam Expands Legalized Cannabis To Include Recreational Use.

Guam is a U.S. territory in the Pacific Ocean of just around 165,000 people but it has made huge head-waves by being becoming the second American jurisdiction to legalize the sales of recreational cannabis through a legislature (the first U.S. jurisdiction to do so was the Northern Mariana Islands – click here for our previous blog). Previously, only medical-use cannabis was legal.

Democratic Governor Lou Leon Guerrero signed the  Cannabis Industry Act (the “Act”) into law on April 4, 2019 stating “We must regulate this illicit drug that is the most widely used drug in our society. We have to take it and control it, monitor its use and effects, benefit from its medicinal efforts, and allow our people to live in a safer environment”.

Possession, Sales, and Home Cultivation All Legalized.

The Act permits those age 21 or older to legally possess and transfer up to one ounce of marijuana flower and/or eight grams of concentrated cannabis. The measure, which took immediate effect, also permits adults to privately cultivate up to six cannabis plants (no more than three mature) in an “enclosed, locked space”.  Public consumption of cannabis will remain a violation of law.

The Act creates a new regulatory board to draft rules governing the plant’s commercial production and retail sale. The board has a one-year timeline to adopt rules necessary to permit for the operation of licensed cannabis establishments.

Guam Follows A Growing Trend In Legalizing Cannabis.

Medical marijuana is legal in 33 states.

The medical use of cannabis is legal (with a doctor’s recommendation) in 31 states and Washington DC. Those 33 states being Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington and West Virginia. The medical use of cannabis is also legal in the territories of the Northern Mariana Islands, Guam and Puerto Rico.

Recreational marijuana is legal in 10 states.

Ten states and Washington DC, have legalized marijuana for recreational use — no doctor’s letter required — for adults over the age of 21. Those ten states being Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington and now the territory of Guam.

Conflict With Federal Law.

Under Federal law (Controlled Substances Act 21 U.S.C. 801) marijuana is designated as a Schedule I controlled substance due to the historical belief that it has a high potential for abuse, no currently accepted medical use in treatment, and lack of accepted safety for use under medical supervision.

Higher Taxes Still Remain

While the developments listed above are favorable for cannabis business, it still remains to be seen whether the Federal government will respond favorably and when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

Reporting Of Cash Payments Still Remain

The Bank Secrecy Act of 1970 (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, and file reports of cash purchases of these negotiable instruments of more than $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The BSA requires any business receiving one or more related cash payments totaling more than $10,000 to file IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business.

The minimum penalty for failing to file EACH Form 8300 is $25,000 if the failure is due to an intentional or willful disregard of the cash reporting requirements. Penalties may also be imposed for causing, or attempting to cause, a trade or business to fail to file a required report; for causing, or attempting to cause, a trade or business to file a required report containing a material omission or misstatement of fact; or for structuring, or attempting to structure, transactions to avoid the reporting requirements. These violations may also be subject to criminal prosecution which, upon conviction, may result in imprisonment of up to 5 years or fines of up to $250,000 for individuals and $500,000 for corporations or both.

Marijuana-related businesses operate in an environment of cash transactions as many banks remain reluctant to do business with many in the marijuana industry. Like any cash-based business the IRS scrutinizes the amount of gross receipts to report and it is harder to prove to the IRS expenses paid in cash. So it is of most importance that the proper facilities and procedures be set up to maintain an adequate system of books and records.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  So it is best to be proactive and engage an experienced cannabis tax attorney in your area who is highly skilled in the different legal and tax issues that cannabis businesses face.  Let the cannabis tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.

cannabis business banking law

Federal Cannabis Banking Bill Moving Through Congress – If You Can’t Beat Them, Then Join Them!

Under Federal law (Controlled Substances Act 21 U.S.C. 801) marijuana is designated as a Schedule I controlled substance due to the historical belief that it has a high potential for abuse, no currently accepted medical use in treatment, and lack of accepted safety for use under medical supervision. This status has prompted banks to prevent and block banking access to legal cannabis businesses.

Secure And Fair Enforcement (SAFE) Banking Act – HR 1595

The Secure And Fair Enforcement Banking Act (the “SAFE Banking Act”) was introduced just less than two weeks ago by Representatives Ed Perlmutter (D-CO), Denny Heck (D-WA), Steve Stivers (R-OH) and Warren Davidson (R-OH). The SAFE Banking Act would prevent federal banking regulators from punishing banks for working with cannabis related businesses that are obeying state laws or halting their services, taking action on loans made to those businesses, or limiting a depository institution’s access to the Deposit Insurance Fund. The SAFE Banking Act would also protect ancillary businesses that work with the cannabis industry from being charged with money laundering and other financial crimes, and requires the Financial Institution Examination Council to develop guidance to help credit unions and banks understand how to lawfully serve cannabis businesses.

On March 28, 2019, the House Financial Services Committee approved an updated version of the SAFE Banking Act, which would provide safe harbor and guidance to financial institutions that wish to work with legal cannabis businesses. The vote was 45-15 in support of cannabis banking which supporters included 11 Republicans. Now, the legislation will go back to the House for further consideration and should be approved for a full floor vote. It will then move on to the Senate for consideration. Stay tuned for further developments.

While this development is favorable for cannabis business, the enactment of the SAFE Banking Act into law will not solve all the problems and challenges of legal cannabis businesses.

Higher Taxes Still Remain

It still remains to be seen when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

Reporting Of Cash Payments Still Remain

The Bank Secrecy Act of 1970 (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, and file reports of cash purchases of these negotiable instruments of more than $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The BSA requires any business receiving one or more related cash payments totaling more than $10,000 to file IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business.

The minimum penalty for failing to file EACH Form 8300 is $25,000 if the failure is due to an intentional or willful disregard of the cash reporting requirements. Penalties may also be imposed for causing, or attempting to cause, a trade or business to fail to file a required report; for causing, or attempting to cause, a trade or business to file a required report containing a material omission or misstatement of fact; or for structuring, or attempting to structure, transactions to avoid the reporting requirements. These violations may also be subject to criminal prosecution which, upon conviction, may result in imprisonment of up to 5 years or fines of up to $250,000 for individuals and $500,000 for corporations or both.

Marijuana-related businesses operate in an environment of cash transactions as many banks remain reluctant to do business with many in the marijuana industry. Like any cash-based business the IRS scrutinizes the amount of gross receipts to report and it is harder to prove to the IRS expenses paid in cash. So it is of most importance that the proper facilities and procedures be set up to maintain an adequate system of books and records.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law and the enactment of the SAFE Banking Act will not solve all your problems you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  Be proactive and engage an experienced Cannabis Tax Attorney in your area. Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County, Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.

cannabis regulation

Evolution Of California Cannabis Law – Pending Bills Considered By The Legislature: Senate Bill 34 and Senate Bill 67.

Two bills currently being considered by the California State legislature that would authorize legal cannabis businesses to provide free cannabis or cannabis products to a medicinal cannabis patient and would allow temporary licenses to be re-validated if an annual license application has been submitted. These measures if enacted into law could help legal cannabis businesses to thrive and level the playing field with cannabis businesses that continue to operate in the grey and black markets.

Senate Bill 34 (The Compassionate Care Bill, formerly SB 829)

The proposed legislation, which is sponsored by state Senator Scott Weiner, was introduced in the current session on December 3, 2018 would allow licensed cannabis businesses to provide free cannabis or cannabis products to a medicinal cannabis patient if specified requirements are met. This is more liberal that existing administrative law which prohibits a retailer licensee from providing free cannabis goods to any person or allowing individuals who are not employed by the retailer to provide free cannabis goods to any person on the licensed premises. The bill also provides relief from the imposition of state taxes on the donated cannabis and cannabis products. The full text of the Bill can be viewed here.

Senate Bill 67

The proposed legislation, which is sponsored by state Senator Mike McGuire, was introduced in the current session on January 8, 2019 would revalidate an expired temporary license if the licensee submitted an application for an annual state license before the licensee’s temporary license expiration date, and would require the extended temporary license to expire on December 31, 2019, unless otherwise revoked. This legislation has serious ramifications for the legal cannabis industry in California as many businesses are operating under temporary licenses and there are delays and other challenges poised at the local level that could result in temporary licenses expiring before final annual licenses are issued. If this legislation is not enacted into law, current temporary license holders will not be able to operate after their temp licenses expire, leaving the state with a major supply crisis and discouraging future investment into legal cannabis. The full text of the Bill can be viewed here.


Even though 33 states have legalized cannabis for medical or adult use, banks and financial institutions are hesitant to provide services to cannabis businesses because federal law still classifies cannabis as an illegal Schedule 1 drug under the Controlled Substances Act.

Higher Federal Taxes Still Remain

While the developments listed above are favorable for California cannabis business, it still remains to be seen when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

Federal Reporting Of Cash Payments Still Remain

The Bank Secrecy Act of 1970 (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, and file reports of cash purchases of these negotiable instruments of more than $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The BSA requires any business receiving one or more related cash payments totaling more than $10,000 to file IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business.

The minimum penalty for failing to file EACH Form 8300 is $25,000 if the failure is due to an intentional or willful disregard of the cash reporting requirements. Penalties may also be imposed for causing, or attempting to cause, a trade or business to fail to file a required report; for causing, or attempting to cause, a trade or business to file a required report containing a material omission or misstatement of fact; or for structuring, or attempting to structure, transactions to avoid the reporting requirements. These violations may also be subject to criminal prosecution which, upon conviction, may result in imprisonment of up to 5 years or fines of up to $250,000 for individuals and $500,000 for corporations or both.

Marijuana-related businesses operate in an environment of cash transactions as many banks remain reluctant to do business with many in the marijuana industry. Like any cash-based business the IRS scrutinizes the amount of gross receipts to report and it is harder to prove to the IRS expenses paid in cash. So it is of most importance that the proper facilities and procedures be set up to maintain an adequate system of books and records.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  Be proactive and engage an experienced Cannabis Tax Attorney in your area. Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County, Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.

california tax relief

California Cannabis Tax Relief Coming? Check Out Assembly Bill 37.

A bill was introduced in the California legislature that would give legal cannabis businesses a tax break to help them thrive and level the playing field with cannabis businesses that continue to operate in the grey and black markets.

Assembly Bill 37 Was First Introduced December 3, 2018

The proposed legislation, which is sponsored by Assembly Member Reggie Jones-Sawyer (D) provides that for each taxable year beginning on or after January 1, 2019, Section 280E of the Internal Revenue Code, relating to expenditures in connection with the illegal sale of drugs, shall not apply to the carrying on of any trade or business that is commercial cannabis activity by a licensee. The full text of the Bill can be viewed here.

If this Bill becomes law, it would mean that under the California Tax Code, cannabis businesses can deduct their operating expenses to arrive at California State taxable income. It still would not change the manner that the IRS taxes cannabis businesses.

Even though 33 states have legalized cannabis for medical or adult use, banks and financial institutions are hesitant to provide services to cannabis businesses because federal law still classifies cannabis as an illegal Schedule 1 drug under the Controlled Substances Act.

Higher Federal Taxes Still Remain

While the developments listed above are favorable for California cannabis business, it still remains to be seen when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

Federal Reporting Of Cash Payments Still Remain

The Bank Secrecy Act of 1970 (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, and file reports of cash purchases of these negotiable instruments of more than $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The BSA requires any business receiving one or more related cash payments totaling more than $10,000 to file IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business.

The minimum penalty for failing to file EACH Form 8300 is $25,000 if the failure is due to an intentional or willful disregard of the cash reporting requirements. Penalties may also be imposed for causing, or attempting to cause, a trade or business to fail to file a required report; for causing, or attempting to cause, a trade or business to file a required report containing a material omission or misstatement of fact; or for structuring, or attempting to structure, transactions to avoid the reporting requirements. These violations may also be subject to criminal prosecution which, upon conviction, may result in imprisonment of up to 5 years or fines of up to $250,000 for individuals and $500,000 for corporations or both.

Marijuana-related businesses operate in an environment of cash transactions as many banks remain reluctant to do business with many in the marijuana industry. Like any cash-based business the IRS scrutinizes the amount of gross receipts to report and it is harder to prove to the IRS expenses paid in cash. So it is of most importance that the proper facilities and procedures be set up to maintain an adequate system of books and records.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  Be proactive and engage an experienced Cannabis Tax Attorney in your area. Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County, Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.

Cannabis Legalization Bills

More Cannabis Legalization Bills Introduced In Congress – If You Can’t Beat Them, Then Join Them!

Under Federal law (Controlled Substances Act 21 U.S.C. 801) marijuana is designated as a Schedule I controlled substance due to the historical belief that it has a high potential for abuse, no currently accepted medical use in treatment, and lack of accepted safety for use under medical supervision.

The federal penalties for possession of any amount of marijuana are as follows:

  • First Offense – Misdemeanor involving up to one year of incarceration and $1,000 in fines
  • Second Offense – Misdemeanor punishable by 15 days to 2 years behind bars and $2,500 in fines
  • Third and subsequent offenses – Misdemeanor or felony punishable by 90 days to 3 years of incarceration and fines of up to $5,000.

The penalties for the sale of marijuana depend on the amount of marijuana you have been accused of selling or attempting to sell:

  • Less than 50 kilograms – Felony punishable by up to 5 years in prison and/or up to $250,000 in fines
  • 50 to 99 kilograms – Felony punishable by up to 20 years in prison and/or fines of up to $1,000,000
  • 100 to 999 kilograms – Felony involving 5 to 40 years incarceration and/or fines of up to $2,000,000
  • 1000 kg and up – Felony carrying a sentence of 10 years to life in prison and/or up to  $4,000,000 in fines

As for the cultivation of marijuana, the federal authorities punish it on the basis of the number of plants you were caught growing:

  • Less than 50 plants – Felony punishable by up to 5 years in prison and/or up to $250,000 in fines
  • 50 to 99 plants – Felony punishable by up to 20 years in prison and/or up to $1,000,000 in fines
  • 100 to 999 plants – Felony carrying a 5 to 40-year prison sentence and/or fines of up to $5,000,000
  • 1,000 plants or more – Felony involving 10 years to life in prison and/or fines of up to $10,000,000

With aggravating factors such as a trafficking activity that results in an injury or death, a sale within 1,000 feet of a school, or a case involving five grams sold to a minor, the above penalties may increase dramatically.

How things have changed –

  • Medical marijuana is now legal in 33 states plus the District Of Columbia, Guam, Puerto Rico and the Northern Mariana Islands and recreational marijuana is legal in 10 states plus the District Of Columbia and the Northern Mariana Islands. The ten states legalizing recreational marijuana being Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington.
  • According to a 2017 Yahoo News/Marist Poll survey, 83% of Americans support legalization of marijuana.
  • Republican Congressman John Boehner has joined the advisory board of Acreage Holdings, a company that cultivates, processes and dispenses cannabis in 11 U.S. states.
  • Democratic Senator Dianne Feinstein now says the federal government should not interfere in California’s legal marijuana market. Feinstein’s office said her views changed after meetings with constituents, particularly those with young children who have benefited from medical marijuana use.
  • President Trump discusses with Republican Senator Cory Gardner how he would consider backing Congressional legislation that would protect states with legalized marijuana from the Department of Justice.

Representatives Tulsi Gabbard and Don Young Introduce Landmark Bipartisan Marijuana Reform on March 7, 2019

Representatives Tulsi Gabbard (D-HI) and Don Young (R-AK) on March 7, 2019 introduced two bipartisan marijuana bills:

  • The Ending Federal Marijuana Prohibition Act of 2019 would remove marijuana from the federal Controlled Substances list and allow states the freedom to regulate marijuana as they choose, without federal interference.
  • The Marijuana Data Collection Act of 2019 would study the effects of state legalized medicinal and non-medicinal marijuana programs from a variety of perspectives, including state revenues, public health, substance abuse and opioids, criminal justice, and employment.

In a press release issued by Congresswoman Tulsi Gabbard’s Office she stated “Our archaic marijuana policies– based on stigma and outdated myths–have been used to wage a failed War on Drugs. Families have been torn apart, communities left fractured, and over-criminalization and mass incarceration have become the norm. In 2017 alone, our country arrested 600,000 people just for possession of marijuana. Our bipartisan legislation takes a step toward ending the failed War on Drugs, ending the federal prohibition on marijuana, and ensuring that our policies are guided by facts and the truth”.

Congressman Don Young statedI am a passionate supporter of a states’ rights approach to cannabis policy. For too long, the Federal government has stood in the way of states that have acted to set their own marijuana policy, and it is long past time Congress modernized these outdated laws. Since Alaska legalized marijuana, I have heard from many constituents – including small business owners – who have been impacted by archaic Federal marijuana policy that criminalizes them for selling marijuana-derived products otherwise legal under state law. Additionally, our nation’s prisons are overcrowded with non-violent offenders who too frequently have their lives ruined by harmful and outdated policies.  As co-founder of the Congressional Cannabis Caucus, I am proud to introduce two pieces of bipartisan legislation with Congresswoman Tulsi Gabbard to get the Federal government out of the way of state-level policymaking. I look forward to working with Congresswoman Gabbard and my friends on both sides of the aisle to see these initiatives become law”.

Higher Taxes Still Remain

While the developments listed above are favorable for cannabis business, it still remains to be seen when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

Reporting Of Cash Payments Still Remain

The Bank Secrecy Act of 1970 (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, and file reports of cash purchases of these negotiable instruments of more than $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The BSA requires any business receiving one or more related cash payments totaling more than $10,000 to file IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business.

The minimum penalty for failing to file EACH Form 8300 is $25,000 if the failure is due to an intentional or willful disregard of the cash reporting requirements. Penalties may also be imposed for causing, or attempting to cause, a trade or business to fail to file a required report; for causing, or attempting to cause, a trade or business to file a required report containing a material omission or misstatement of fact; or for structuring, or attempting to structure, transactions to avoid the reporting requirements. These violations may also be subject to criminal prosecution which, upon conviction, may result in imprisonment of up to 5 years or fines of up to $250,000 for individuals and $500,000 for corporations or both.

Marijuana-related businesses operate in an environment of cash transactions as many banks remain reluctant to do business with many in the marijuana industry. Like any cash-based business the IRS scrutinizes the amount of gross receipts to report and it is harder to prove to the IRS expenses paid in cash. So it is of most importance that the proper facilities and procedures be set up to maintain an adequate system of books and records.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  Be proactive and engage an experienced Cannabis Tax Attorney in your area. Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County, Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.

cannabis business tax deductions

Attention Cannabis Businesses – Be Prepared To Prove Your Deductions To The IRS

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Cannabis, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in cannabis have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

A cannabis business can still deduct its Cost Of Goods Sold (“COGS”). Cost of goods sold are the direct costs attributable to the production of goods. For a marijuana reseller this includes the cost of cannabis itself and transportation used in acquiring cannabis. To the extent greater costs of doing business can be legitimately included in COGS that will that result in lower taxable income.

But in any case, the burden of proof whether it be in an IRS audit or in Court is on the taxpayer to prove the deductions the taxpayer are claiming.

Fifth Amendment Claim

In Feinberg v. Commissioner, 2019 U.S. App. LEXIS 5618 (10th Cir. 2019), click here for the opinion, the taxpayers were shareholders in an LLC selling medical marijuana in Colorado where such sales are legal. The cannabis business was examined by the IRS and the taxpayers refused to provide backup to the deductions the taxpayers were claiming on the basis that this violated their Fifth Amendment privilege. The taxpayers argued that if they produced the evidence to back up the deductions being claimed in the cannabis business, that evidence could be used against them to impose criminal liability for engaging in the trafficking of a controlled substance.

The Court rejected this concept recognizing that the Fifth Amendment privilege protects one from compulsory self-incrimination and not barring evidence that would assist in meeting a burden of production.

The Court stated “by invoking the privilege and refusing to produce the materials that might support their deductions the taxpayers no doubt made their task of proving the IRS erred in denying their deductions that much harder”. However, “a party who asserts the privilege against self-incrimination must bear the consequences of the lack of evidence [See United States v. Rylander, 460 U.S. 752 (1983)] which teaches that the taxpayers’ possible failure of proof on an issue on which they bear the burden is not compulsion for purposes of the Fifth Amendment. Therefore, we reject the taxpayers’ contention that bearing the burden of proving the IRS erred in rejecting the taxpayer’s business deduction under § 280E violated the taxpayers’ Fifth Amendment privilege”.

The Court held that, since the taxpayers bore the burden of proof without the cover of the Fifth Amendment and the taxpayers failed to provide such proof – the taxpayers lose.

The Anti-Federal U.S. Climate

The Federal Controlled Substances Act (“CSA”) 21 U.S.C. § 812 classifies marijuana as a Schedule 1 substance with a high potential for abuse, no currently accepted medical use in treatment, and lack of accepted safety for use under medical supervision. Although you can still face federal criminal charges for using, growing, or selling weed in a manner that is completely lawful under California law and other states that have legalized cannabis, the federal authorities in the past have pulled back from targeting individuals and businesses engaged in medical marijuana activities. This pull back though has no impact on the IRS which will likely start in 2019 to more aggressively target cannabis businesses with audits.

Risk Of Getting A Big Tax Bill From IRS That You Cannot Pay

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

A cannabis business that has not properly reported its income and expenses and not engaged in the planning to minimize income taxes can face a large liability proposed by IRS reflected on a Notice Of Deficiency or tax bill.

This risk should be risk posing the greatest challenge to any cannabis business as the Federal taxation of cannabis businesses is consistent in all states and not dependent on whether local Federal prosecutors are aggressive in enforcing the illegality of cannabis or the banks unwilling to do business with the cannabis industry. This unexpected liability can put you out of business so it is important to secure qualified tax counsel to be proactive with tax planning to minimize taxes and to defend you in any tax examinations, appeals or litigation with the IRS.


What Should You Do?

While more States are legalizing cannabis, risks to the cannabis industry still exist. Considering this risks of cannabis you need to protect yourself and your investment. Level the playing field and gain the upper hand by engaging the cannabis tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (including Ontario and Palm Springs) and other California locations. We can come up with solutions and strategies to these risks and protect you and your business to maximize your net profits.

Cannabis Businesses Getting Ready To Prepare Your 2018 Tax Returns – Don’t Miss Out On These Tax Benefits!

The Tax Cuts And Jobs Act Of 2017 (“TCJA”) was signed into law by President Trump on December 22, 2017. It has been a good 30 years since the last time the Internal Revenue Code received such a major updatebut just how does this effect the cannabis industry?

Major Changes From The TCJA Include:

Lower Income Tax Rates For Individuals.

Increased Standard Deduction For Individuals

Elimination Of Personal Exemptions

Limitations of Deductibility Of Itemized Deductions including Mortgage Interest and State & Local Taxes.

Lower Corporation Tax Rates.

No Repeal Of Section 280E

The TCJA did not modify Section 280E. That provision provides:

No 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.

Accordingly, cannabis businesses must still pay federal income taxes on their gross profits which is Gross Receipts less Costs Of Goods Sold.  No deductions for operating expenses are allowed.

Reduction InTax Rate For C Corporations

All C corporations, including those engaged in marijuana-related endeavors, now benefit from a 21% tax rate (down from the previous 35%). The corporate alternative minimum tax has been eliminated. In addition to the tax reduction, C corporations also provide limited liability protection, greater credibility, and other advantages. As there is no distinction between cannabis and non-cannabis businesses, cannabis businesses organized as C-corporation should benefit from this reduced tax rate.

New Deduction ForPass-through Entities (S-corporation, LLC’s and partnerships)

This area has been given the most attention over the last year in anticipation of the first tax season that this benefit applies.  The TRJA provides a new 20% deduction under 26 U.S. Code § 199A to certain S Corporations, LLC’s and partnerships but there are a number of limitations including (but not limited to) exclusion of specified service trades and businesses, and income limitations ($157,000 for individual filers and $315,000 for joint filers).

The calculation of the Section 199A deduction is quite complicated, however – it starts with the lesser of:

20% of taxpayer’s qualified business income OR

The greater of:

  • 50% of the taxpayer’s share of W-2 wages with respect to the business

OR

  • 25% of the taxpayer’s share of W-2 wages with respect to the business plus 2.5% of the allocable share of the unadjusted basis of all qualified property (tangible personal property subject to depreciation and depreciable period is later of 10 years or regular straight-line depreciation period, so 39 years in the case of a non-residential rental building).

There are other calculations that apply but before working through the details of Section 199A can cannabis business owners benefit from this deduction?

Can TheSection 199A Deduction Apply To Cannabis Business Owners?

Clearly Section 280E puts cannabis businesses in a different category than non-cannabis businesses.  The focus on Section 199A is that this deduction applies to enterprises that“carry on any trade or business”. The deduction thought is not made at the business level but instead at the individual level.  It should be most noteworthy that this deduction does not appear on any forms for a business to report its taxable income and deductions.

In order to be a qualified trade or business, an activity must rise to the level of being a trade or business (Code Sec. 199A(d)(1)). Because the term “trade or business” is not defined in the Code, the determination of whether an activity rises to that level is subject to different interpretations. As a result, several distinct bodies of administrative guidance and case law have developed around the meaning of the phrase under different Code sections.

For purposes of Section 199A, the meaning of “trade or business” under Section 162 is controlling (Reg. Sec. 1.199A-1(b)(14)). Under Section 162, an activity must be regular and continuous to be considered a trade or business (Groetzinger v. Comm’r, 480 U.S. 23 (1987)). Whether a business has enough regular and continuous activity to be considered a trade or business is generally a facts and circumstances question.

When interpreting Section 280E, it could be argued that this provision denies cannabis business from deducting expenses normally deductible under Section 162 but in no way impacts whether the enterprise is operating as a trade or business.  Nevertheless, it may be beneficial to disclose this position on the 2018 individual income tax return to avoid penalties in the event that on audit and any appeal this position is not respected by the IRS.

What Should You Do?

There is no one size fits all tax answer for every cannabis business but it is clear that Section 199A does not eliminate the punitive impact of Section 280E deduction disallowances.Protect yourself and your investment by engaging the cannabis tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (including Ontario and Palm Springs) and other California locations. We can come up with tax solutions and strategies and protect you and your business and to maximize your net profits.

cannabis business banking law

Federal Cannabis Banking Access Coming? Check Out The Latest Word By Congress.

On February 13, 2019 a hearing was conducted by the Subcommittee on Consumer Protection and Financial Institutions which is under the U.S. House Committee On Financial Services headed by Chairwoman Maxime Waters (D–CA). Testimony was provided at this hearing which could lead to the subcommittee putting forth a bill in Congress that eventually could put into law guaranteed access to the banking industry for state-licensed cannabis businesses.

Details On The Hearing

The Committee recognizes that an increasing number of financial institutions have expressed interest in providing banking services to state authorized cannabis-related businesses; however, many financial institutions are refraining from offering banking services to these businesses based on several legal and compliance risks especially since federal law still classifies cannabis as an illegal Schedule 1 drug under the Controlled Substances Act. Furthermore, public safety and other concerns have been expressed by stakeholders, including state and local government officials regarding cannabis-related businesses having difficulties accessing basic banking services, such as depositing large sums of cash from their business activity. The Committee Memorandum can be viewed here.

Reps. Ed Perlmutter (D-CO), Denny Heck (D-WA), Steve Stivers (R-OH), and Warren Davidson (R-OH) have a discussion draft for the Secure and Fair Enforcement Banking Act of 2019 (SAFE Banking Act) that was considered at this hearing. The proposal, among other things, would harmonize federal and state law concerning cannabis-related businesses and allow these businesses access to banking services. Additionally, depository institutions and their employees would be exempt from federal prosecution or investigation solely for providing banking services to a state authorized cannabis-related business. The draft of the bill can be viewed here.

Click here for the recorded webcast of the hearing.

Higher Federal Taxes Still Remain

While the developments listed above are favorable for cannabis business in the U.S., it still remains to be seen when favorable changes will be made to the Internal Revenue Code which treats businesses in the marijuana industry differently resulting in such business paying at least 3-times as much in taxes as ordinary businesses.

Generally, businesses can deduct ordinary and necessary business expenses under I.R.C. §162. This includes wages, rent, supplies, etc. However, in 1982 Congress added I.R.C. §280E. Under §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Marijuana, including medical marijuana, is a controlled substance. What this means is that dispensaries and other businesses trafficking in marijuana have to report all of their income and cannot deduct rent, wages, and other expenses, making their marginal tax rate substantially higher than most other businesses.

Federal Reporting Of Cash Payments Still Remain

The Bank Secrecy Act of 1970 (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, and file reports of cash purchases of these negotiable instruments of more than $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The BSA requires any business receiving one or more related cash payments totaling more than $10,000 to file IRS Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business.

The minimum penalty for failing to file EACH Form 8300 is $25,000 if the failure is due to an intentional or willful disregard of the cash reporting requirements. Penalties may also be imposed for causing, or attempting to cause, a trade or business to fail to file a required report; for causing, or attempting to cause, a trade or business to file a required report containing a material omission or misstatement of fact; or for structuring, or attempting to structure, transactions to avoid the reporting requirements. These violations may also be subject to criminal prosecution which, upon conviction, may result in imprisonment of up to 5 years or fines of up to $250,000 for individuals and $500,000 for corporations or both.

Marijuana-related businesses operate in an environment of cash transactions as many banks remain reluctant to do business with many in the marijuana industry. Like any cash-based business the IRS scrutinizes the amount of gross receipts to report and it is harder to prove to the IRS expenses paid in cash. So it is of most importance that the proper facilities and procedures be set up to maintain an adequate system of books and records.

How Do You Know Which Cannabis Tax Attorney Is Best For You?

Given that cannabis is still illegal under existing Federal law you need to protect yourself and your marijuana business from all challenges created by the U.S. government.  While cannabis is legal in California, that is not enough to protect you.  It’s coming down that the biggest risk is TAXES.  Be proactive and engage an experienced Cannabis Tax Attorney in your area. Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County, Inland Empire (Ontario and Palm Springs) and other California locations protect you and maximize your net profits.