Popular Tax Litigation Scenarios Marijuana Organizations May possibly Encounter


Thirty states and the District of Columbia at the moment have laws broadly legalizing marijuana in some kind.  However, marijuana remains illegal beneath Federal law, and this creates an uncertain landscape for marijuana firms in the preparation of their Federal earnings tax returns and in handling an IRS audit.  In addition, marijuana firms will have to be conscious of money handling challenges. This short article addresses a couple of of the frequent tax challenges facing marijuana firms and why these firms really should seek the assistance of a tax lawyer in any communications with the Internal Income Service.


Section 280E, Small business Costs, and Expenses of Goods Sold

In incredibly basic terms, the Internal Income Code (IRC) permits firms to deduct “ordinary and necessary” costs incurred in the course of the taxable year in carrying on a trade or small business.  See especially IRC Section 162.

Nevertheless, beneath IRC Section 280E, firms are prohibited from deducting small business costs or taking credits associated to earnings from the sale of federally controlled substances, like marijuana.  Interpreted strictly, IRC Section 280E prohibits a marijuana small business from deducting any small business costs – even salaries, wages, employee advantages, instruction, rent, travel, marketing, and depreciation.

Attempts to fight Section 280E in Tax Court have been unsuccessful.   For instance, the IRS audited Canna Care Inc., a California health-related marijuana dispensary, and denied Canna’s deductions for operating costs, like considerable amounts for employee salaries and car costs.  The corporation appealed the IRS’ findings to the United States Tax Court. Relying on section 280E, the Court upheld the IRS’ determination and denied all of Canna’s deductions. See Canna Care, Inc. v. Commissioner, T.C. Memo 2015-206.

Nevertheless, in Californians Assisting to Alleviate Healthcare Troubles, Inc., v. Commissioner, 128 T.C. 173 (2007)(“CHAMP”), the government acknowledged that Section 280E does not prohibit a taxpayer from claiming fees of goods sold (COGS).  Footnote four of the opinion delivers as follows: “respondent [the IRS] concedes that the disallowance of sec. 280E does not apply to fees of goods sold, a concession that is constant with the caselaw on that topic and the legislative history underlying sec. 280E.”  The CHAMP Court also permitted small business expense deductions associated to the taxpayer’s separate counseling and caregiving small business.  According to the Court, “section 280E does not preclude petitioner from deducting costs attributable to a trade or small business other than that of illegal trafficking in controlled substances just simply because petitioner also is involved in the trafficking in a controlled substance.”

Most lately, on June 13, 2018, the United States Tax Court issued its opinion in Alterman &amp Gibson v. Commissioner, T.C. Memo. 2018-83.

Through the years prior to the Court, the taxpayers owned a health-related marijuana dispensary in Colorado.   The dispensary sold smokable marijuana as nicely as edibles. It also sold marijuana paraphernalia such as pipes, papers, and other products utilized to consume marijuana.  The IRS audited taxpayers and permitted their fees of goods sold, but disallowed all small business expense deductions (beneath Section 280E) except depreciation.

The Tax Court upheld the IRS’ disallowance of all small business expense deductions, even these associated to that portion of the taxpayers’ small business that sold non-marijuana goods such as marijuana paraphernalia.  Specifically, the Court stated:

Below the situations, we hold that promoting non-marijuana merchandise was not separate from the small business of promoting marijuana merchandise.  First, Altermeds, LLC, derived pretty much all of its income from marijuana merchandise. Second, the forms of non-marijuana goods that it sold (pipes and other marijuana paraphernalia) complemented its efforts to sell marijuana.  Altermeds, LLC, had only one particular unitary small business, promoting marijuana. If, nevertheless, promoting non-marijuana merchandise have been viewed as a separate small business, then the costs of that small business would be deductible. See CHAMP, 128 T.C. at 183-185.

In sum, the Alterman Tax Court opinion reemphasizes the Court’s previous rulings associated to marijuana firms: (1) small business costs are not deductible beneath Section 280E (two) fees of goods sold are allowable, as extended as they are calculated properly and (three) small business costs may possibly be deductible if a marijuana small business also conducts a second, ancillary small business that is totally separate from the sale of marijuana.

The challenges inherent in fighting back against an IRS audit have been also exposed in the Tax Court case of Feinberg v. Commissioner, T.C. Memo. 2017-2011.  In that case, the IRS audited a Colorado small business licensed for the cultivation and sale of health-related marijuana.  The IRS disallowed small business expense deductions beneath 280E and also produced adjustments to the business’ claimed fees of goods sold.  The COGS adjustment was the major problem prior to the Tax Court. Interestingly, the IRS really reclassified some of the business’ deductions as COGS, providing the taxpayers higher COGS than initially claimed on its returns.  At trial, the small business created no small business records pertaining to its operations. Alternatively, it chose to rely exclusively on an professional report supplied by an accountant who specializes in marijuana sector expense accounting. The small business contended that its professional report established that the COGS permitted by the IRS have been incorrect.

The Tax Court concluded that beneath Federal Rule of Proof 702, the professional report was not admissible.  Specifically, the Court stated: “The conclusions in the [expert] report are an try to present reconstructed earnings tax returns as proof of petitioners’ right tax liabilities.  The report is not primarily based on private expertise of THC’s small business. To ascertain the right COGS for THC, substantiation of THC’s costs is needed. A reconstructed earnings tax return primarily based on sector averages does not take the location of substantiation and does not assist ascertain a truth in problem.”

The marijuana small business also argued that it really should be permitted higher COGS than what the IRS permitted beneath the Cohan rule.  Under Cohan, the Tax Court may possibly estimate the quantity of a deductible expense if a taxpayer establishes that an expense is deductible but is unable to substantiate the precise quantity.  The Cohan rule also applies to COGS.  However, in Feinberg, the Tax Court identified that even beneath Cohan, there will have to be adequate proof in the record to deliver a basis upon which an estimate can be produced simply because the small business supplied no proof to assistance COGS greater than what the IRS permitted, the Court upheld the IRS’ final COGS adjustment.    The Feinberg case highlights the significance of retaining a competent tax lawyer when dealing with any IRS audit, in particular if the audit benefits in litigation in U.S. Tax Court.


IRS Audits of Gross Receipts

Marijuana firms will have to also be concerned with IRS audits of their gross receipts, especially, the IRS’ use of indirect solutions of proof.   Although neither the Tax Code nor Treasury regulations define or especially authorize the use of indirect solutions of proof, case law has held that indirect solutions of proof are acceptable and they need to have not be precise, but will have to be affordable in light of surrounding information and situations.  Holland v. United States, 348 U.S. 121, 134 (1954).

The IRS will use indirect solutions of proof beneath several situations, like: books and records do not accurately reflect total taxable earnings received and the income agent has established the likelihood of unreported earnings costs seem to exceed earnings irregularities in the taxpayer’s books and records gross profit percentage modifications considerably from one particular year to an additional taxpayers’ bank accounts have unexplained deposit products taxpayer does not make common deposits and makes use of money tax returns show considerable enhance in taxpayer’s net worth which is not supported by recorded earnings and no system of accounting has been consistently utilized or the system does not clearly reflect earnings.

The IRS makes use of a selection of indirect solutions of proof like: the bank deposits evaluation (most frequent), net worth evaluation, money-t evaluation, and the mark-up system.

Anytime the IRS intends to carry out an indirect system of proof audit of gross receipts, the taxpayer really should seek advice from with a tax lawyer, as there are exposure dangers like a prospective IRS criminal investigation or civil fraud referral.  A competent tax lawyer can advise of these dangers and can assist limit the taxpayer’s exposure. A tax lawyer can also defend against the conclusions drawn by the IRS agent just after he or she completes an indirect system of proof audit.


Money Troubles

Marijuana firms will have to also be concerned with the Economic Crimes Enforcement Network (FinCEN), a bureau of the U.S. Division of Treasury that collects and analyzes facts about monetary transactions in order to combat cash laundering and other monetary crimes.  FinCEN’s self described mission is to safeguard the nation’s monetary technique from illicit use and cash laundering and to market national safety by collecting, analyzing, and disseminating monetary intelligence. To that finish, the Bank Secrecy Act (BSA) demands monetary institutions to file currency transaction reports (CTRs) for money transactions exceeding $10,000 (each day aggregate quantity) with FinCEN.  It also demands institutions such as banks, cash solutions firms, securities firms, insurance coverage businesses, casinos, and loan and finance businesses, to file suspicious activity reports (SARs) anytime a transaction does not make sense, is uncommon for that certain client, seems to be completed for the goal of hiding or obfuscating a transaction, or show deposits structured to keep away from CTR needs (i.e., various deposits totaling more than $10,000 but divided up to keep away from the $10,000 threshold).  CTRs and SARs are critical tools that FinCEN makes use of and shares with other regulatory agencies – like the IRS – in its try to combat cash laundering and the use of Federally backed monetary institutions to hide illicit monetary transactions.

A 2014 FinCEN memo stated as follows:  “Because federal law prohibits the distribution and sale of marijuana, monetary transactions involving a marijuana-associated small business would commonly involve funds derived from illegal activity.  Therefore, a monetary institution is essential to file a SAR on activity involving a marijuana-associated small business (like these duly licensed beneath state law) in accordance with this guidance and FinCEN’s suspicious activity reporting needs and associated thresholds.”  Therefore, in no uncertain terms, beneath Federal law, a bank will have to file a SAR anytime it conducts a transaction with a marijuana-associated small business, even when the transaction is under the CTR $10,000 threshold.

In addition, simply because marijuana firms deal largely in money, they will have to be conscious of Type 8300 needs.  Any small business that receives a lot more than $10,000 in money in a single transaction or associated transactions will have to comprehensive a Type 8300, Report of Money Payments More than $10,000 Received in a Trade or Small business.  Form 8300 is a joint kind issued by the IRS and FinCEN. Marijuana firms, in particular wholesalers, will have to be cognizant of Type 8300 filing needs.

The IRS started auditing Colorado marijuana firms associated to their Type 8300 filing needs in 2016. 1 small business owner, who wished to stay anonymous, reported that some of the marijuana small business directed audits came from the IRS’ fraud division.  In all of the Colorado Type 8300 audits, the IRS utilized a questionnaire and posed inquiries unrelated to Type 8300 needs. For instance, the questionnaire asked the following inquiries: How did you get began in the small business? Who are your competitors in the wholesale marijuana sector?  If a bank account exists is all of the money deposited into the bank account? Asking beyond the audit scope, open-ended inquiries is a tactic generally utilized by IRS income agents and why it is critical to retain an knowledgeable tax lawyer anytime the IRS conducts an audit or investigation, no matter how nicely the small business has maintained its books and records, and stayed in compliance with federal tax obligations and Type 8300 filing needs.

If you personal a small business promoting, developing, or making marijuana, you need to have to perform with an knowledgeable tax lawyer to have an understanding of your tax rights and responsibilities. The landscape is altering so speedily that you need to have a legal advocate on your side to assist you navigate it all.  If your small business is audited and you do not have detailed facts about just about every single transaction, you threat forfeiting your COGS claim and you could be topic to penalties for filing an inaccurate tax return.

Silver Law PLC operates in Arizona and Nevada and all of its lawyers are former trial attorneys for the IRS. A tax lawyer from our group can assist you have an understanding of how the complicated Tax Code applies to your marijuana small business operations. We’ll assist you guarantee that you are meeting your obligations. If you have been audited or are facing collections, we are also in a position to assist you navigate that procedure. We can either discover approaches to bring down your tax debt or can negotiate a settlement for you. Get in touch with us these days and speak with a tax lawyer in Las Vegas or Phoenix to discover a lot more.

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