Having been beaten in an opinion issued by the U.S. Tax Court just weeks before where the Court ruled that IRC Section 280E does apply to Harborside (Click here for the Court’s opinion: Patients Mutual Assistance Collective Corp., dba Harborside Health Center v. Commissioner of Internal Revenue, 151 T.C. 11) which Harborside can appeal to the U.S. 9th Circuit Court of Appeals, it was a relief that this same Court ruled that the California dispensary is not liable for accuracy-related 280E penalties. Those penalties would have tacked on another 20% to the tax bill IRS is prepared to send to Harborside if the taxpayer does not appeal the previous decision.
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.
First Harborside Tax Court Opinion – IRS Code 280E will remain in effect for cannabis businesses
The Harborside case involved a dispute over the deductibility of business expenses taken by Harborside Health Center, recognized as the largest marijuana dispensary in the United States by revenue, and the IRS, which was enforcing the provisions of IRC Section 280E. Congress enacted this section back in the 1980’s so that taxpayers engaged in trafficking in a Schedule I or II controlled substances could not deduct any expenses other than Cost Of Goods Sold.
The Harborside dispensary introduced a novel argument about the inapplicability of IRC Section 280E to its activities and focused on two words in this code section – “consists of” – in making the case that this section of law does not apply to them. The Harborside dispensary highlighted the definition of “consists of” as it is used in IRC Section 280E when describing that business expense deductions are not allowed to taxpayers whose business “consists of” trafficking in a Schedule I or II controlled substance. The Harborside dispensary pointed out, not without merit, that the phrase “consists of” generally introduces an exhaustive list. What this means is that when something is said to “consist of” a list of items, that list of items is the exclusive, exhaustive list, and no other unmentioned items can be said to be included in that list, since the enumerated list contains everything.
The Tax Court spent a considerable amount of time evaluating this argument and acknowledging that it had some merit based upon a review of the dictionary and other legal sources. However, what doomed the Harborside dispensary was the IRS argument, backed by case law, that a legal statute should not be read in such a constrained way so as to render it completely ineffective and toothless. The Tax Court, in ruling for the IRS on this issue, pointed out that if the Harborside dispensary’s reading of IRC Section 280E were correct, a drug dealer who also sold a single pack of gum could not have this same code section applied to him, as that drug dealer’s business would not consist solely of trafficking in a Schedule I or II controlled substance.
But since the Court did not establish a clear test as to when activities other than the sale of cannabis should be taxed differently that activities involving cannabis, there is still hope for cannabis businesses who invest in proper planning now can have the highest chance of prevailing should their tax returns be selected for audit.
Second Harborside Tax Court Opinion – Abatement Of Penalties
With the Tax Court’s previous ruling that IRC Section 280E denies all standard business deductions to businesses whose operations “consist” of activities that violate the CSA, we now turn to the Tax Court’s second opinion on whether Harborside should be subject to accuracy-related penalties.
IRC Section 6662(a) and (b)(1) and (2) imposes a 20% penalty on the portion of an underpayment attributable to any substantial understatement of income tax or negligence or disregard of rules or regulations. Negligence includes any failure to make a reasonable attempt to comply with the provisions of the Code, and disregard includes any careless, reckless, or intentional disregard. Sec. 6662(c). An understatement of a corporation’s income tax is substantial if it exceeds the lesser of $10 million or “10 percent of the tax required to be shown on the return for the taxable year (or, if greater, $10,000).” Sec. 6662(d)(1)(B). A taxpayer can avoid these penalties by showing that it acted with reasonable cause and in good faith. Sec. 6664(c)(1); sec. 1.6664-4(a), Income Tax Regs. To decide whether a taxpayer acted with reasonable cause and in good faith, the Court look at all relevant facts and circumstances, such as the “taxpayer’s effort to assess the taxpayer’s proper tax liability” and his “experience, knowledge, and education.” Sec. 1.6664-4(b)(1), Income Tax Regs.
According to the Opinion issued by the Tax Court (Click here for the opinion: T.C. Memo. 2018-208), Harborside acted “reasonably and in good faith” when taking its tax positions for the years at issue. The Tax Court cited Harborside’s timely filing of its tax returns and its maintenance of accurate financial records as a key strength, along with a persuasive argument from Harborside co-founder and Chairman Emeritus, Steve DeAngelo, that he made good-faith efforts to comply with the law, despite a lack of clear legal authority to guide medical marijuana dispensary taxpayers.
This second ruling is relief for Harborside and shows the importance that with proper planning, taxpayers involved in cannabis should fare better in minimizing liability to IRS.
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.