Sunday, September 2, 2018
Though regular readers might be a bit tired of my eagerness to reference my recent extended article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I am not at all tired of the idea that marijuana reform should always focus on criminal justice concerns and that new revenues emerging from the new marijuana industry out to be committed to criminal justice needed. So I was very pleased to have had the opportunity to develop this Issue Brief through the Scholars Strategy Network to stress key parts of my longer work under the headlined "How States Can Ensure That Today's Marijuana Reforms Also Ameliorate Harms Inflicted On Past Offenders." Here is an excerpt from this short commentary:
A new criminal justice institution could be funded by the taxes, fees, and other revenues generated by marijuana reforms and assigned the mission of developing policies and practices to minimize the economic and social burdens that persist for those previously convicted of marijuana offenses.
Ex-offenders are often saddled with collateral sanctions at the local, state, and federal levels and have to deal with the widespread availability of their criminal records. These challenges justify the establishment of a permanent restorative institution in every jurisdiction, funded by fractions of the new resources generated by the legal marijuana industry and associated taxes.
A new Commission on Justice Restoration could be a public agency mandated to address the cumulative undue harms of prior convictions. The Commission could provide a much-needed clearinghouse and site for analyzing hard-to-collect data about the collateral consequences of convictions, and provide a centralized and impartial forum for statewide policymaking to redress these collateral consequences, to conduct and disseminate research on the fiscal and social costs of these collateral consequences, and to advocate for steps that can be taken to reduce long- term harms.
Thursday, August 23, 2018
The title of this post is the title of this new paper authored by Daniel Rowe now available via SSRN. Here is its abstract:
As states legalize marijuana and cannabis-derived products, both for medical and recreational use, the punitive federal tax effect of section 280E makes it economically impossible for many marijuana-related businesses to function profitably. By disallowing the deduction of otherwise legitimate business expenditures, the Internal Revenue Code places such businesses in a situation where they are potentially paying federal income tax on their gross receipts despite netting much less in actual income. This article explores the disproportionate tax burden on marijuana sellers and the growing tension between current federal tax law and states’ legalization of marijuana.
This article recommends the amendment of section 280E to eliminate this burden. It is structured in four parts. Part II discusses the history and legislative intent behind section 280E. It delves into the differing tax treatment for illegal drug traffickers versus that of other illegal activities. Part III describes the effects of section 280E, both intended and unintended, on state-legal marijuana sellers as well as on the overall marijuana industry. It explains how the original intent of section 280E, specifically as it relates to marijuana sellers, has been undermined by the changing public attitude towards marijuana and the rise of legal medical and recreational marijuana facilities. This part also considers the onerous tax regime placed on state-legal marijuana businesses due to the inability to deduct ordinary expenses, and how this regime could be counter-productive to overall tax policy. Part IV describes several alternative solutions to eliminate the reach of section 280E to state-legal marijuana businesses. It concludes with the recommendation to amend section 280E to make it inapplicable to activities that are statutorily legal in the states in which they are conducted.
Monday, July 23, 2018
Late last week the Auditor General of Pennsylvania released this notable report on “Regulating and Taxing Marijuana” that reads a bit more like an advocacy group's document than something that would emerge from a state government office. But, as this press release about the report reveals, the Auditor General of PA seems real eager to have access to a new revenue source:
Auditor General Eugene DePasquale today said Pennsylvania is missing out on $581 million per year in revenue by not regulating and taxing marijuana — money that could fund critical initiatives that affect Pennsylvanians’ lives. “Repeated polls have shown that a majority of Americans now believe marijuana should be legalized. In Pennsylvania, it’s 56 percent,” DePasquale said during a news conference with Pittsburgh Mayor William Peduto.
“Today, I’m releasing a special report that shows the staggering amount the state could reap in tax revenue if legislators simply did what their constituents want them to do: regulate and tax marijuana for adult use.”
The 14-page special report, “Regulating and Taxing Marijuana,” compiles national research data, which show that an average of 8.38 percent of the commonwealth’s adults (21 and older) currently use marijuana at least monthly — a total of 798,556 adults. In Colorado and Washington, where marijuana has been legal since 2012, adult users spend an average of $2,080 annually. If Pennsylvania’s 798,556 adult users spent the same amount, they would create a $1.66 billion retail industry.
Assuming Pennsylvania taxed the growth, cultivation and sale of marijuana at 35 percent, the state would collect roughly $581 million in tax revenue annually. If Allegheny and Philadelphia counties were allowed to add 1-2 percent local tax, they could collect an additional $3.8 million and $6.9 million, respectively. “Imagine what that $581 million could mean for Pennsylvanians,” DePasquale said. “Not only would it help balance the state budget, but it would also mean increases to initiatives that affect Pennsylvanians’ lives, such as greater access to opioid treatment and better health care access for veterans and children.”
DePasquale became the first statewide elected official to endorse regulating and taxing marijuana in March 2017. “With our neighboring states all looking at legalizing marijuana, now is the time for Pennsylvania to do the same,” DePasquale continued. “Legislators must act now so that we can be competitive and not lose potential revenue to other states.”
July 23, 2018 in Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (0)
Saturday, June 30, 2018
The title of this post is the title of this short new paper authored by Pat Oglesby now available via SSRN. Here is its abstract:
Beyond the ever-present illegal market, a more subtle threat to marijuana revenue lurks: Tax competitors (think: tax havens) threaten subnational jurisdictions that can’t or don’t control their borders.
This article presents a framework for looking at threats to marijuana revenue:
1. The illegal market can be marginalized by law enforcement or low taxes.
2. Only low taxes can defeat legal tax competitors.
3. Tax competition threatens local retail taxes more than state retail taxes.
4. Tax competition threatens local producer taxes much more than state producer taxes.
5. Federal legalization would ipso facto expose state taxes to daunting competition.
Monday, June 25, 2018
"IRS cracks down with §280E": Reviewing the latest major US Tax Court court ruling highlighting burdens for marijuana businesses
Chris Nani, a student in my Marijuana Law & Policy seminar last year, has already had articles published at the Cannabis Law Report discussing federal tax treatment of cannabis businesses (see prior posts here and here). Thus I was not surprised to hear from Chris in the wake of a significant US Tax Court ruling earlier this month, and I imposed upon him to author a review of the decision for the blog. He titled his review ""IRS cracks down with §280E," and here is the account:
Altermeds, LLC, a medical marijuana dispensary near Boulder, Colorado, recently experienced the effects of § 280E after a tax audit found they had under-reported their taxes. The ruling from the US Tax Court in Alterman v. Commisioner, TC Memo 2018-83, is already being widely discussed in the marijuana industry.
In 2010 and 2011, Altermeds filed its taxes and applied normal tax deductions to its business. The IRS audited Altermeds and found a deficiency of $157,821 in 2010 and $233,421 in 2011 holding Altermeds was not eligible for business expense deductions. Additionally, the Internal Revenue Code (IRC) provides for a tax penalty of 20% the portion of the underpayment for under-reporting taxes.
280E states: "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."
Essentially, § 280E provides no cannabis business (because cannabis is a Schedule I drug) will receive deductions or credits for any of their business related activates. Normally, businesses can deduct their ordinary business expenses under § 162 of the IRC. However, § 280E limits § 162 and theoretically was meant to deter drug dealers from writing off their business expenses. (The opposite may have occurred by giving drug dealers even less incentive to report their income.)
The origins of § 280E are slightly comical. In 1982, Jeffrey Edmondson, a drug dealer, was able to write off his business expenses under § 162. Edmondson wrote off traveling, his scale he used to measure drugs, and his rent. When Congress found out Edmondson was writing off his drug dealing expenses, they enacted § 280E.
The majority of businesses know when entering into the state legalized cannabis market they will still pay federal taxes without being able to deduce business expenses. Non-cannabis related expenses such as the sale of t-shirts are eligible for § 162 tax deductions even while selling cannabis, cannabis-infused edibles, or pipes are not deductible because of their relation with cannabis. The tax court is more likely to permit deductions the clearer the line is between a cannabis and non-cannabis business.
When Altermeds was audited, they claimed they had multiple businesses. One of their businesses sold their non-cannabis merchandise, but the tax court did not find the business to be distinct enough from their cannabis dispensary. To prove a business is distinct, Altermeds would have to show there is a separate bank account and business. The tax court held that the non-cannabis products sold by Altermeds (pipes and other cannabis paraphernalia) were sold to complement selling cannabis and were not eligible for any deductions. Lastly, the court was willing to deduct the amount for the non-cannabis business as well, but Altermeds’ brief failed to follow the court rules and the court was precluded from even contemplating the deductions.
The tax court did allow for the cost-of-goods-sold allowances that the IRS had stipulated prior in the litigation, but Altermeds was still forced to pay its overdue taxes along with the 20% penalty. With this most recent tax decision taking a hard line approach to deductions associated with cannabis businesses, participants in the industry need to be careful about, and cognizant of the tax consequences that can result from, intermingling cannabis and non-cannabis products.
UPDATE: I just noticed that Bryan Camp over at TaxProf Blog has this long posting on the Altermeds decision under the heading "Lesson From The Tax Court: Into The Weeds on COGS." Here is his concluding "Lesson" concerning the case: "Get your accounting straight and be sure to hire tax counsel who have the specialized knowledge needed for the job of representing you before both the IRS and Tax Court."
Wednesday, May 16, 2018
The title of this post is the title of this notable new report released yesterday by New York City Comptroller Scott M. Stringer. Here is how it gets started:
In just the past six years, voters in eight states and the District of Columbia have passed ballot measures to legalize the adult use of marijuana. At least seven more states may follow suit this fall. In total, over half of states have legalized marijuana for medical purposes since California first did so in 1996. This dramatic change in public attitudes is reflective of changes as measured by survey data, with 61% of Americans now supporting lifting the ban on marijuana. More than just a change in attitudes toward marijuana itself, the growing movement for legalization also acknowledges the immeasurable harm done by the criminalization of marijuana use, especially among communities of color.
New York State’s 2014 Compassionate Care Act legalized marijuana for medical use. Legislation to legalize adult marijuana use, the Marijuana Regulation and Taxation Act, has been reintroduced in each subsequent legislative session. In his Executive Budget for State Fiscal Year 2018-2019, Governor Cuomo proposed a study of the economic impacts of legalization and the implications of continuing to prohibit use while other nearby states move to legalize. In this report, New York City Comptroller Scott M. Stringer provides an estimate of the fiscal impact of legalizing adult-use marijuana sales in New York. This report estimates the legal, adult-use marijuana market at some $3.1 billion per year in New York State, about $1.1 billion of that in New York City. In turn, the Comptroller’s Office estimates that this market could conservatively yield annual tax revenues of as much as $1.3 billion total at the State and City levels. That assumes a combination of state and local sales and excise taxes in line with what other jurisdictions have passed that could yield up to $436 million in revenues for the State, $336 million for the City, and some $570 million for localities outside of the city. Of course, the total revenues realized at the State and local levels would depend on the final outcome of any legalization effort.
Beyond the mere dollars that legalization could yield, decriminalization has clear human and societal benefits. In states where adult marijuana use has been legalized, there have been declines in teenage usage of marijuana, and public health and safety concerns have been addressed. Finally, misdemeanor marijuana arrests continue to fall most heavily on young Black and Latino New Yorkers, despite a higher reported usage rate among White youth. Erasing the harmful repercussions, including the stigma of a criminal record, would open doors that have been closed to too many for too long, yielding incalculable human, economic, and societal benefits.
May 16, 2018 in Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)
Monday, April 30, 2018
Today's USA Today has on its front-page this article headlined "Pot taxes across U.S. shore up school budgets, drug-prevention efforts." Here are excerpts:
States with legal pot have collected more than $1.6 billion since the newest sin taxes went into effect in 2014, with the money paying for everything from public schools to mental health services to programs that deter convicts from re-offending....
In an exclusive analysis for the USA TODAY Network, Beau Whitney, a senior economist with Washington, D.C.-based cannabis analytics firm New Frontier Data, forecasts collections in California could exceed $2.1 billion through 2020, based on a 15% state excise tax. For perspective, it takes about $1 billion a year to run the city of Sacramento. The New Frontier analysis doesn't count a mishmash of city, county or cultivation taxes....
Analysts say mainstay revenue such as income, property and sales taxes still dwarf marijuana taxes in local and state government budgets. However, "every dollar is important," said Stephen Walsh, a director with the U.S. Public Finance group at Fitch. "It's very difficult for governments to raise taxes." Cannabis taxes represent a welcome infusion of all-new money, he said.
Nine states and the District of Columbia have decided to legalize recreational marijuana. Cannabis consumers are willing to trade high tax rates — from 20% in Oregon to as much as 45% in California — for the freedom to partake in the small network of states.
Were the federal government to OK sales throughout the nation, New Frontier analysts forecast that through 2025, weed could bring in about $100 billion in fresh revenue for the U.S. Treasury Department. That includes a hypothetical 15% federal sales tax, business tax revenues and payroll deductions. But for now, revenue is on the rise in the handful of states that allow sales, though the way state budgets are structured makes it difficult to trace marijuana taxes from the point of sale to the purchase of school textbooks.
Colorado and Washington, which started allowing recreational marijuana sales in 2014, have so far collected nearly $1.48 billion in revenue. Washington has brought in more than $773 million to pay for healthcare services, research from state universities on the effects of short-term and long-term pot use, reducing marijuana use among minors and other efforts. Meanwhile, Colorado has received more than $702 million, with the money going toward grants that help pay schools' capital construction costs, as well as shoring up local and state tax bases. The state collected $247,368,473 last year alone, revenue records show.
In an interview, U.S. Rep. Jared Polis, D-Colorado, said bringing underground economic activity above-ground, then taxing it reasonably, creates "a more efficient market."... While Colorado's counties and cities can choose whether to allow marijuana businesses, Polis said some less-prosperous parts of the state have seen pot turn into an important revenue producer, letting officials support schools and children's scholarships, along with addressing infrastructural needs.
In Alaska, one of the smallest markets, tax proceeds are split between the state's general fund and efforts to stop convicts from re-offending. Alaska taxes pot growers, and collections have steadily risen from $577,901 when they started in July 2017 and peaking at more than $1 million this January, for a total of about $8.25 million, revenue records show.
The list of states with legal weed is growing, with others that have voted to allow it now including Oregon, Nevada, Massachusetts, Maine and Vermont. After starting tax collections in 2016, Oregon has divvied up about $126.9 million in marijuana taxes between schools, city and county governments, mental health, alcoholism and drug services, the Oregon State Police and the Oregon Health Authority's drug prevention and treatment services.
"These funds will be used in combination with other resources for drug and alcohol prevention for a comprehensive, evidence-based approach to reducing drug misuse and excessive alcohol use," said Jonathan Modie, OHA spokesman. A campaign to prevent minors from using marijuana and data collection on alcohol and drug use are part of the drug prevention and treatment program, he said.
The amount of pot money Oregon allocates annually to school districts is based on a district's weighted daily membership, a metric that takes into account how many full-time students are in a district and other factors, such as the number of students with special needs or experiencing poverty. Salem-Keizer Public Schools, Oregon's second largest school district, is receiving a little more than $2.7 million in marijuana money this year, said Oregon Department of Education spokesman Peter Rudy. That's enough to pay for the equivalent of 27 teachers, considering each costs around $100,000 with salary and benefits combined, according to district spokeswoman Lillian Govus.
In a statement, Oregon Gov. Kate Brown said, "We know that Oregonians care about our children’s education and their neighbors' health, and we see that in how they decided to spend cannabis tax revenues. Every dollar counts when supporting those values."
Thursday, April 19, 2018
The title of this post is the title of this thorough and effective review of myriad economic impacts of the marijuana industry in the first state to have a functioning recreational marijuana market. This piece was authored by the Federal Reserve Back of Kansas City, and I recommend the piece in full to anyone and everyone interested in certain economic realities flowing from legalization and commercialization of recreational marijuana. Here are some snippets from the start and heart of the piece:
In 2012, Colorado voters passed Amendment 64, making Colorado one of the first states to legalize recreational marijuana. Since then, the legalization trend has continued, and today, medical marijuana is legal in 29 states and Washington, D.C., and recreational marijuana is legal in eight states and Washington, D.C. So far in 2018, Vermont’s lawmakers have legalized marijuana starting July 1, and at least 11 other states are considering recreational or medical marijuana legalization. The marijuana industry has had many effects on the state of Colorado since it was legalized. This issue of the Rocky Mountain Economist focuses on the economic impacts of the marijuana industry in Colorado, the first state to open recreational marijuana stores....
Marijuana Sales in Colorado
To put the magnitude of marijuana sales in perspective, personal consumption expenditures on all goods and services totaled $236.3 billion in 2016 in Colorado. Marijuana sales were $1.3 billion in 2016, or 0.55 percent of all personal consumer expenditures. By comparison, spending on food and beverages purchased for off-site consumption made up 7.2 percent of personal consumption expenditures in Colorado....
To get a sense of the magnitude of the marijuana industry, we can compare the total number of marijuana-related business licenses in the state to the number of new entity business filings for all industries in the state. Between the first quarter of 2014 and the fourth quarter of 2017, there were about 431,997 new entity business filings in Colorado. By comparison, slightly more than 3,000 marijuana-related business licenses were active at the end of 2017. If all of these marijuana-related businesses started during the first quarter of 2014 through the end of 2017, then they would represent about 0.7 percent of total new business filings in the state since 2014. The actual percentage likely is lower than 0.7 percent because some marijuana-related businesses existed in Colorado prior to 2014, particularly those serving the medical side of the industry....
Employment in the Marijuana Industry
As of March 2018, there were more than 38,000 issued individual licenses in the marijuana industry, including 1,637 business owners. Of course, not everyone with a license is working in the industry, and the Marijuana Policy Group estimates that one active license equates to 0.467 full-time equivalent positions. Using this estimate, the marijuana industry currently employs about 17,821 full-time equivalent staff, a 17.7 percent increase in employment over the previous year....
Taxation of the Marijuana Industry
In 2017, the state of Colorado collected more than $247 million from the marijuana industry, including state sales taxes on recreational and medical, special sales taxes on recreational, excise taxes on recreational and application and licenses fees. Tax collections since 2014 have increased significantly, though at a slower pace over the past year. Between 2014 and 2015, total collections increased 93 percent. By contrast, collections increased about 28 percent between 2016 and 2017. To put the magnitude of marijuana tax collections in perspective, they equate to about 2.3 percent of Colorado’s 2017 general fund revenue. Although this calculation is useful for perspective, most marijuana revenue does not go into the state general fund....
Potential Costs of Marijuana Legalization
The data on legalization’s impact on public safety is limited, and therefore, the full effects of legalization on public safety are uncertain. Between 2012 and 2014, the number of marijuana arrests fell 46 percent, primarily due to a decline in marijuana possession arrests. In Denver, the number of crimes reported to the Denver Police Department that were determined to have a clear connection to marijuana increased from 234 in 2013 to 276 in 2014, but then fell to 183 in 2017. Of the crimes reported with a connection to marijuana in 2017, 54 percent were burglaries and 74 percent were industry-related.xxviii Fifteen percent of DUI summons issued by the Colorado State Patrol in 2015 were for marijuana or marijuana in combination with alcohol or other drugs although the number of these types of DUIs fell 1 percent between 2014 and 2015. Traffic fatalities with THC-only or THC-in-combination positive drivers rose from 55 in 2013 to 79 in 2014....
As the first state to open recreational marijuana retail stores, Colorado provides a case study to examine the potential economic effects from legalization. Direct employment in the marijuana sector has risen robustly since the passage of Amendment 64, contributing about 5.4 percent of all employment growth in Colorado since January 2014. Despite these solid gains, employment in the sector makes up just 0.7 percent of total employment in the state. Similar to employment, tax collections from marijuana have also increased sharply in recent years, and are equal to about 2 percent of general fund revenues in the state. Although legalization has contributed to employment growth and tax revenues in the state, it is important to weigh those benefits against the potential costs to public safety and health outcomes.
April 19, 2018 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)
Sunday, April 8, 2018
The title of this post is the title of this new paper recently posted to SSRN authored by Richard Thompson Ainsworth and Brendan Magauran. Here is its abstract:
On January 4, 2018, the Trump Administration through Attorney General Sessions rescinded an Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases under the federal Controlled Substances Act, as well as under the Bank Secrecy Act. Federal law is at odds with state law in the majority of states on the legalization and subsequent state taxation of marijuana. Twenty-eight states and the District of Columbia have at least partially legalized marijuana. Eight of these states have legalized both medicinal and recreational use. With limited exceptions, legalized sales of marijuana are taxed.
Aside from “compassionate use” of medicinal marijuana, the States have seen real business development and job creation opportunities by legalizing the marijuana trade – estimates of 250,000 new jobs by 2020 are common.
State marijuana revenue measures are not harmonized today. Both the tax rates and the commercial stages at which marijuana transactions are taxed diverge widely. Rates range from zero for medicinal use (in Delaware, DC, Maine, Massachusetts, New Hampshire, New Mexico, North Dakota, and Oregon) to roughly 47% (for recreational marijuana, slightly less for medicinal) in Washington. For the most part, state marijuana taxes cascade with excise taxes appearing in the retail sales tax base.
This paper proposes to analyze state marijuana enforcement and taxation through the lens of European value added taxes (VAT). There is a closer harmony between the EU and the US in this area than might be expected. EU VAT proposals for tax harmonization and enforcement, and applies them to the US. The proposals are technology-intensive. They integrate well with the digital track and trace systems employed by US States to control legalized marijuana. The first proposal is to place the central portion of the marijuana supply chain on a private blockchain that is shared among the states. Transactions in marijuana will be preserved in real-time (locally and centrally). Data will be shared among State authorities to aid enforcement, and tax collection.
The second proposal is for a limited-purpose cryptotaxcurrency. This would be a crypto-token like VATCoin that is digitally minted by the government. For example, CALCoin. CALCoin would be the only currency allowed for marijuana-related purchases within California. Frauds related to excessive “home grown” marijuana, and the use of Dark Cloud-based Zappers in retail dispensaries are also considered.
Thursday, April 5, 2018
The title of this post is the title of this new article available via SSRN authored by Keaton Miller and Boyoung Seo. Here is the abstract:
Proponents of the legalization of recreational marijuana have argued that the policy would result in increased tax revenues for states. However, if legal substances are highly substitutable, tax revenues from marijuana may crowd out pre-existing revenues. We study the interaction between the marijuana, alcohol, and tobacco industries in Washington state using a combination of detailed administrative data on the marijuana industry and scanner data on alcohol and tobacco sales.
We estimate a demand system and find that alcohol and marijuana are substitutes, with the legalization of marijuana in isolation leading to a 12% decrease in alcohol demand, and a marginal cross price elasticity of demand of .16. Marijuana legalization results in a 20% decrease in tobacco demand, but the marginal relationship is unclear. When prices are held fixed, 50% of marijuana tax revenue comes from cannibalizing alcohol and tobacco taxes. When those industries adjust their prices, only 22% of marijuana tax revenue comes from alcohol and tobacco. Though Washington has the highest marijuana tax rate in the country, a 1% increase in the marijuana tax results in a 1.01% increase in total revenues collected by the state.
Saturday, January 27, 2018
Last week I spotlighted this article published at the Cannabis Law Report titled "An Introduction To The Internal Revenue Code For Cannabis Businesses." The piece was authored by Chris Nani, a student in my Marijuana Law & Policy seminar last semester, and now available here via the Cannabis Law Report is another part of his taxing treatment. The piece is titled simply "Part II: My Proposed Tax Break," and here is an excerpt:
While there is still federal prohibition, Congress should incentivize current marijuana businesses to perform desirable social policy goals in exchange for tax deductions. Because taxes are so astronomically high for marijuana businesses such as dispensaries, by adding an amendment to § 280E Congress could specifically tailor it to marijuana businesses or include all scheduled I and II drugs. I elected to make it about all scheduled I and II drugs.
Under § 280E, the proposed amendment would read:
“Any scheduled I or II drug business that pays federal income taxes, regardless of its legality, is applicable to deduct from its expenses any activities that meet the following: (i) educational programs that demonstrate health risks and safety procedures for the drug(s) the business is involved with (ii) informational programs that display the short and long-term risks of the drug(s) the business is involved with and (iii) informational programs that educate on how to identify the signs of an overdose and how to properly treat it for the drug(s) the business is involved with.”
Just like any statute, my proposed § 280E amendment is vulnerable to abuse, but hopefully the legislative history would be able to give guidance to the IRS and courts if litigation arose. The social goal aimed at this amendment is public health. By increasing awareness and knowledge of a drug, the user will be able to make better judgment calls and more accurately understand the consequences of their actions.
Now, to fully dissect the language of my proposed amendment. The first sentence applies to any scheduled I or II drug regardless of its legality. This includes drugs such as heroin, LSD, and marijuana along with prescribed drugs such as Adderall, Fentanyl, and OxyContin. All of the drugs listed have side effects and can damage the human body. By educating the public on the health risks and safety procedures for the drug, heroin dealers and marijuana dispensaries both could reduce their federal income taxes. I believe it’s better for a heroin addict to understand the deadliness of the drug and how to properly use it beforehand to help minimize the chance of death. Similarly, for marijuana, dispensaries could receive a deduction while showing consumers how to properly use a bong or smoke a blunt while discussing the health consequences of smoking. It would allow dispensaries to showcase their products and demonstrate any new innovative ways to use marijuana while additionally educating the public on how to properly use a device.
Prior related Post:
January 27, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)
Saturday, January 20, 2018
The title of this post is the title of this new article published at the Cannabis Law Report. I am distinctly proud of this article because it was authored by Chris Nani, a student in my Marijuana Law & Policy seminar last semester. Here is a portion of this piece:
Marijuana-related businesses face an additional hurdle other businesses do not. Congress specifically implemented § 280E to prevent any business trafficking illegal drugs from receiving deductions. 26 U.S.C. §280E. The provision prohibits any deductions or credits to businesses trafficking schedule I or II illegal drugs within the meaning of the Controlled Substances Act of 1970. Marijuana is currently classified as a schedule I drug. Because marijuana-related businesses such as dispensaries or farmers traffic marijuana they either are not applicable for any tax deductions under § 162 or are extremely limited on what they can deduct.
The IRS’ current stance on what marijuana-related businesses can deduct is summarized in Chief Counsel Advice 201504011. It allows for marijuana businesses to deduct some of their cost of goods sold (COGS). The memo allows for deductions under § 471 as long as they comply with § 280E. § 471 allows for the inventoriable cost of any good that can be capitalized to be deductible. 26 U.S.C. § 471. Meaning, raw materials or labor costs are deductible because they are used within a year to create a product. Although the IRS updated the tax code with § 263A to permit additional expenses included under inventoriable cost, the IRS memo prohibits marijuana-related businesses from using § 263A in their calculation of COGS.
Thursday, January 11, 2018
"Study: Legal marijuana could generate more than $132 billion in federal tax revenue and 1 million jobs"
The title of this post is the headline of this notable new piece in the Washington Post. Here is how it gets started:
Legalizing marijuana nationwide would create at least $132 billion in tax revenue and more than a million new jobs across the United States in the next decade, according to a new study.
New Frontier Data, a data analytics firm focused on the cannabis industry, forecasts that if legalized on the federal level, the marijuana industry could create an entirely new tax revenue stream for the government, generating millions of dollars in sales tax and payroll deductions. “When there are budget deficits and the like, everybody wants to know where is there an additional revenue stream, and one of the most logical places is to go after cannabis and cannabis taxes,” said Beau Whitney, a senior economist at New Frontier Data.
The analysis shows that if marijuana were fully legal in all 50 states, it would create at least a combined $131.8 billion in in federal tax revenue between 2017 and 2025. That is based on an estimated 15 percent retail sales tax, payroll tax deductions and business tax revenue.
The federal government would reap $51.7 billion in sales tax from a legal marijuana market between 2017 and 2025, entirely new revenue for a business that remains illegal -- and unable to be taxed -- federally. The business tax rate for the study was calculated at 35 percent. The corporate tax rate was lowered to 21 percent in a sweeping tax bill President Trump signed last month.
“If cannabis businesses were legalized tomorrow and taxed as normal businesses with a standard 35 percent tax rate, cannabis businesses would infuse the U.S. economy with an additional $12.6 billion this year,” said Giadha Aguirre De Carcer, the CEO of New Frontier.
The study also calculates that there would be 782,000 additional jobs nationwide if cannabis were legalized today, a number that would increase to 1.1 million by 2025. That includes workers at all ends of the marijuana supply chain, from farmers to transporters to sellers. The study estimates that about 25 percent of the marijuana market will continue to be illicit, and will shrink if the legal marketplace is not overly taxed or expensive.
January 11, 2018 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)
Friday, December 15, 2017
The title of this post is the title of this new short paper authored by Pat Oglesby now available via SSRN. Here is the abstract:
Recent federal marijuana tax bills address these questions:
1. What should we tax? What should be the “base” or bases of a cannabis tax? (Possible bases include: price; weight of various product types [like flower, trim, and concentrate]; and THC content.)
2. Given any base, what should the tax rate be?
3. Should medical cannabis bear full tax?
4. Should marijuana advertising and selling expenses become deductible for federal income tax purposes? (That would treat cannabis businesses like other businesses; current Internal Revenue Code section 280E bars such deductions.)
A few of the answers are unsatisfactory for tax policy and drug policy, but some of the answers are forward-looking, going beyond what has been proposed before.
Tuesday, October 31, 2017
Alaska marijuana tax revenues growing, which means more resources to help reduce criminal recidivism
As reported in this new local article, headlined "Alaska cannabis tax revenue tops $700K in September," the Last Frontier is continuing to reach new firsts when it comes to taxes collected from marijuana reform. Here are the details:
Alaska's marijuana tax revenue continued a steady climb upward in September, with $723,757 collected statewide, according to a state official. Sixty-four growers from across the Interior, Southcentral and Southeast paid taxes to the Alaska Department of Revenue last month, wrote Kelly Mazzei, excise tax supervisor in the tax division.
Under Alaska's law, growers pay the tax of $50 an ounce for bud, and $15 an ounce for other parts of the plant, like leaves and stems. A total of 716 pounds of bud was sold wholesale in September, and 630 pounds of trim, according to data provided by Mazzei....
To date, Alaska has collected $3,741,810 in cannabis taxes. Most of it — a full 68 percent — has been paid in cash, Mazzei wrote. Alaska's first marijuana shop opened for business Oct. 29, 2016. Revenue was slow to start, as demand outweighed supply, and retailers struggled to get enough cannabis in their shops to keep their doors open.
In June, revenue nearly doubled after three months of hovering around $250,000. Since then, tax revenue has steadily climbed. Mazzei wrote that October's revenue could top $1 million, a potentially "amazing milestone" for the state. Many local governments have also put additional cannabis sales taxes in place.
Last year, the Alaska Legislature budgeted half of the cannabis tax to programs aimed at reducing repeat criminal offenders. The other half goes into the general fund.
Because I think of marijuana reform as, first and foremost, a form of criminal justice reform, I love the fact that Alaska has decide to commit half of its marijuana tax revenue to improving public safety and its criminal justice system. This article from July 2016, headlined "Here's where half of the revenue from Alaska's legal pot will go," provides these details:
Gov. Bill Walker signed Senate Bill 91, a comprehensive criminal reform bill meant to reduce the state's prison population and its associated costs. Included in the bill is a provision that diverts half of the state's cannabis excise taxes to programs aimed at reducing repeat criminal offenders, under a newly created recidivism reduction fund.
Marijuana will be taxed at $50 an ounce. Based on projected marijuana sales, the state hopes $3 million will go toward the recidivism reduction fund in fiscal year 2017, and $6 million in subsequent years.
The marijuana tax money will be used to fund the Department of Corrections' Substance Abuse Treatment Program, which will receive $700,000, and community residential centers, which will receive $300,000; the Department of Health and Social Services' Behavioral Health Treatment and Recovery Grants, which will receive $1 million; and the Department of Public Safety's Council on Domestic Violence and Sexual Assault, which will also receive $1 million.
Because fiscal year 2017 for Alaska started in July and the first 3 months have already brought in nearly $2 million in taxes and revenue growth is continuing, it would appear Alaska could have even more tax revenue than expected going to these important criminal justice concerns.
October 31, 2017 in Criminal justice developments and reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)
Tuesday, October 24, 2017
In this prior post, I noted reports on the robust sales and tax revenues generated in Nevada in July, the state's first month of legalized recreational marijuana commerce. This new story, headlined "Nevada recreational marijuana sales reach $33M in August," details that month two saw growth over month one:
Nevada dispensaries sold more than $33 million in recreational marijuana and the state pulled in nearly $5 million in total taxes in August, according to numbers released by the Nevada Department of Taxation Monday. That’s up from the $27 million in sales and $3.7 million in taxes in July, the state’s first month of recreational weed sales.
The recreational sales numbers were significantly ahead of the state’s projected $21.5 million in sales for August. In fact, the state did not project any month in the first year of recreational sales to eclipse $28 million.
Andrew Jolley, CEO of The+Source dispensaries and president of the Nevada Dispensary Association, said those projections will likely prove to be fairly conservative, and expects the market to continue to grow steadily over the next several months. “I think it is a good indication that there was a large, pent-up demand that was being served by the black market,” Jolley said....
State Sen. Tick Segerblom, D-Las Vegas, also known as the godfather of pot in Nevada, said he was initially a little worried that the novelty of legal marijuana could lead to a drop off in the second month of sales. But after talking to the industry, he said it was clear that wasn’t going to be the case for August.
“Obviously there’s a demand,” Segerblom said. And Segerblom said he doesn’t think the sales and tax numbers will level off for at least two years, and pointed to the recent opening of five dispensaries in Henderson.
Segerblom also heaped the praise onto the industry as well as the state regulators for ensuring the market got off to a smooth start. “Everyone’s just been really been working perfectly together,” he said.
Monday, October 16, 2017
I am excited to realize and report that, after spending the first half the current semester preparing various presentations for the students in my Marijuana Law, Policy & Reform seminar, this week begins the part of the class in which students are to begin making presentations to each other. The first of the student presentation planned for this this coming week is exploring "tax liability." Here are the links the presenting student has assembled in preparation for his presentation this coming week:
Relevant Internal Revenue Code Provisions:
Three Short Articles on the Economic Impact of Marijuana
October 16, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (0)
Monday, October 9, 2017
Effective use of marijuana reform revenues, in my view, is essential to both the arguments supporting reform and to the sustainability of those arguments over time. For that reason and others, I always find interesting and important any accounting of reform revenues, and this local article from Oregon provides just that. The piece is headlined "Oregon pays out $85 million in pot taxes to school fund, cops, other services," and here are excerpts (with a few comments to follow):
The checks are in the mail. That's the message the Oregon Department of Revenue sent Friday when it announced it will pay out $85 million in marijuana taxes for schools, public health, police and local governments by next week.
The payouts represent the first distributions of state marijuana tax revenues since Oregon opened its legal recreational cannabis market. Oregon collected a total of $108.6 million in state and local taxes between Jan. 4, 2016, and Aug. 31, 2017. The state put $9.56 million toward the Oregon Liquor Control Commission’s “start-up costs” for regulating the industry and toward the Department of Revenue's work to collect the taxes.
The rest was divvied up according to a formula spelled out by law: The state school fund gets 40 percent, or $34 million; mental health, alcoholism and drug services get 20 percent, or $17 million; Oregon State Police get 15 percent, or $12.75 million, and the Oregon Health Authority gets 5 percent, which comes to $4.25 million.
Anthony Johnson, the chief petitioner of Measure 91, which legalized recreational cannabis sales in Oregon, said the amount of tax revenue exceeded supporters’ early projections. He hopes the idea of marijuana taxes flowing into schools and public health and safety spur other states to legalize marijuana, he said. “I am glad to hear that the revenue is finally being distributed,” Johnson said. “This is what the voters intended. It shows that legalizing and regulating cannabis can help generate revenue for important governmental services.”
The largest share goes toward schools. The ballot measure said tax revenue would go to the Common School Fund, an endowment or trust fund of sorts for K-12 schools that makes distributions to districts twice a year. Lawmakers this year voted to move marijuana tax revenue to the State School Fund, which flows directly to school districts for costs such as teachers and textbooks. The fund has a budget of $8.2 billion for the biennium, the vast majority of which is made up of general fund and lottery dollars....
Otto Schell, legislative director for Oregon PTA, said while voters often assume marijuana tax revenue is providing major funding for schools, the reality is that it's among the "tiny fixes" the state has come up with to solve a major problem. To put the amount of pot taxes headed to schools in context, Schell said it's important to keep in mind how much it costs to operate the state's K12 system: roughly $30 million a day. "We keep using Band-Aids to fix something that is a systemic problem and challenge," he said.
A spokesman for the Oregon Health Authority said Friday that marijuana tax revenue will replace general fund dollars spent on existing programs, such as outpatient treatment, housing, transportation and detox. About $1 million will be spent on drug and alcohol abuse prevention, the state’s youth marijuana prevention campaign and drug and alcohol use data collection.....
Local governments may get marijuana tax revenue in two ways: Many levy their own sales tax or they are home to marijuana businesses, making them eligible for a slice of the revenue from the 17 percent state tax on pot sales. Ninety-five Oregon local governments impose a local sales tax of up to 3 percent; the Department of Revenue collects those taxes on behalf of 71 local communities, including Portland.
In the first quarter of this year, the state collected $1.2 million in local sales taxes. Scott Winkels, a lobbyist for the League of Oregon Cities, said pot tax dollars are welcome but dwarfed by revenue generated by local liquor sales. “It’s helpful, don’t get me wrong,” he said. “But we aren’t going to smoke our way to fiscal bliss.”
As this final quote highlights, even though many millions are being raised through marijuana reform, the amounts are still relatively small for a lot of "big ticket" items in the state budget like schools or municipal funding needs. That reality means, for good of for bad, the revenue from marijuana reform with have different impacts and different meaning to different recipients. I think advocates and opponents of reform will be well-advised to take a very close look at how these revenues are being utilized in order to have a refined understanding of some critical echo effects of modern reforms.
Monday, October 2, 2017
The title of this post is the headline of this notable recent AP article, which starts this way:
Scientists. Tax collectors. Typists. Analysts. Lawyers. And more scientists.
Recreational marijuana sales become legal in California in 2018, and one of the things to blossom in the emerging industry isn't green and leafy. It's government jobs.
The state is on a hiring binge to fill what eventually will be hundreds of new government positions by 2019 intended to bring order to the legal pot economy, from keeping watch on what's seeping into streams near cannabis grows to running background checks on storefront sellers who want government licenses. Thousands of additional jobs are expected to be added by local governments.
The swiftly expanding bureaucracy represents just one aspect of the complex challenge faced by California: Come January, the state will unite its longstanding medical cannabis industry with the newly legalized recreational one, creating what will be the United States' largest legal pot economy.
Last January, just 11 full-time workers were part of what's now known as the Bureau of Cannabis Control, the state's chief regulatory agency overseeing the pot market. Now, it's more than doubled, and by February the agency expects to have more than 100 staffers. The agency is moving into new offices later this year, having outgrown its original quarters. It's expected new satellite offices will eventually spread around the state.
There also will be scores of jobs added to issue licenses for sellers, growers, truck drivers, manufacturers and others working in the projected $7 billion industry. The state has taken to Facebook to lure applicants. The bureau is using a video snippet of actor Jim Carrey, hammering his fingers into a computer keyboard, to catch the eye of prospective applicants online. "Get those applications in ... before this guy beats you to it," it reads. "New job just ahead," reads another post. "We're hiring."
This year's state budget contained about $100 million to fund regulatory programs for marijuana, which includes personnel to review and issue licenses, watch over environmental conditions and carry out enforcement.
Planned hiring into 2018 covers a range of state agencies: Fifty people are bound for the Public Health Department, 65 are slated to join the Water Resources Control Board, and 60 new employees are expected at the Food and Agriculture Department, which will oversee licensing for cultivators.
Some of the work is highly specialized. Environmental scientists will be responsible for developing standards for pot grows near streams, to make sure fertilizer or pesticides do not taint the water or harm fish. An engineer will monitor groundwater and water being diverted to nourish plants. Lawyers are needed to help sort out complex issues involving the state's maze of environmental laws.
Pay varies with position but can be attractive, with some scientist posts paying over $100,000 annually. Special investigators with the Consumer Affairs Department could earn in the $80,000 range.
Though not mentioned in this article, most states have funding government jobs in the marijuana arena through the fees and taxes that the marijuana industry produces for state coffers. In a black marketplace, of course, there are no fees and taxes going to the government, though taxpayers are still paying for the costs of trying to enforce prohibition -- which, ironically, largely serves to drive up the tax-free profits that black market participants can secure. With legalization and regulation, the monies paid by marijuana consumers gets channeled to fund state regulatory jobs that should help ensure the consumer gets a safer product at a lower cost. From an economic perspective, it should be a win-win if all goes well (though all does not always go well, and there are other obvious concerns such as public health).
October 2, 2017 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (1)
Friday, September 29, 2017
The title of this post is the headline of this local article reporting that "Nevada dispensaries raked in more than $27 million during the first month of recreational marijuana sales, generating more than $3.6 million in taxes, according to figures released Thursday by the Nevada Department of Taxation." Here is more:
How does that stack up against the other states with legal marijuana? It’s nearly double. Colorado and Oregon each sold about $14 million in marijuana during their respective first months of sales. Washington sold $3.8 million in its first month.
“We came out of the gate like a shotgun,” said Matt Morgan, CEO of Reef Dispensaries. Morgan said that, even three months into recreational sales, Reef’s dispensary located behind the Fashion Show Mall has a line inside the store at nearly all times and outside about 40 percent of the time.
Nevada’s market will only grow, he said. “I still don’t think everyone understands that it’s recreational in Nevada yet,” Morgan said.
For Nevada, $2.7 million in tax revenue came from the 10 percent special excise tax on recreational marijuana, all of which is destined for the state’s rainy day fund. That falls right in line with Nevada’s marijuana sales estimates even though there were no state projections for July because of uncertainty about when stores would begin sales. State officials have projected that special sales tax will generate $63.5 million over the first two years of sales....
Tax Department spokeswoman Stephanie Klapstein said the state expects that excise tax to grow over the next two years as more cultivators get licensed and begin to operate. The state has also pulled in $6.5 million for marijuana license and application fees. Those revenues will be used to cover the administrative costs to regulate the industry for the Tax Department and local governments, and all remaining funds go to the state’s public education fund.
Recreational sales started on July 1, and the state has issued 250 recreational marijuana licenses thus far, 53 of those to dispensaries.