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Mar 20, 2020
Why Is Taxation Related To Cannabis Businesses So Complicated?
Beware: 2020 Could Be A Banner Year For IRS Audits Of Cannabis Businesses
It has been reported that the White House
organized a committee of federal agencies from across the government to combat
public support for marijuana and cast state legalization measures in
a negative light while attempting to portray the drug as a national threat. The
IRS appears to be following the agenda of the Trump Administration when it
comes to Cannabis and has formed special audit groups that are tasked
with conducting cannabis tax audits on medical and recreational cannabis
businesses.
Yes – Cannabis Businesses Have to Report Income To IRS And
Pay Taxes!
While the sale of recreational cannabis is legal in eleven
states and Washington, D.C., cannabis remains a Schedule 1 narcotic under
Federal law, specifically under the Controlled Substances Act (CSA)
21 U.S.C. § 812. As such, businesses in the cannabis industry are not treated
like ordinary businesses. Despite state laws allowing cannabis sale and
consumption, it remains illegal on a federal level. Yet, cannabis businesses
are obligated to pay federal income tax on income because I.R.C. §61(a) does
not differentiate between income derived from legal sources and income derived
from illegal sources.
I.R.C. § 280E
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
I.R.C. §280E, taxpayers cannot deduct any amount for a trade or business where
the trade or business consists of trafficking in controlled
substances, which are prohibited by Federal law. Cannabis, including medical
marijuana, is a controlled substance. This means 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.
IRS Guidance on Cannabis.
The IRS issued a memo to provide guidance to its
agents on conducting audits of cannabis businesses addressing whether an IRS
agent can require a taxpayer trafficking in a Schedule 1 controlled substance
to change its tax accounting to conform to I.R.C. §280E.
Not surprisingly, the IRS ruled that IRS agents have the authority to change a cannabis business’ method of accounting so that costs pursuant to I.R.C. §280E which should not be included in inventory are not included in Costs Of Goods Sold (COGS) and remain non-deductible for income tax purposes.
Cannabis Tax Audits & Litigation.
It is no surprise that cannabis businesses are proliferating
as more states legalize and make licenses available to grow, manufacture,
distribute and sell cannabis. The IRS recognizes this and is making these
cannabis businesses face Federal income tax audits.
IRC §280E is at the forefront of all IRS cannabis tax audits and enforcement of
§280E could result in unbearable tax liabilities.
Proving deductions to the IRS is a two-step process:
- First, you must substantiate that you actually paid the expense you are claiming.
- Second, you must prove that an expense is actually tax deductible.
Step One: Incurred And Paid The Expense.
For example, if you claim a $5,000 purchase expense from a
cannabis distributor, offering a copy of a bill or an invoice from the
distributor (if one is even provided) is not enough. It only proves that you
owe the money, not that you actually made good on paying the bill. The IRS
accepts canceled checks, bank statements and credit card
statements as proof of payment. But when such bills are paid in cash as it
typical in a cannabis business, you would not
have any of these supporting documents but the IRS may accept the equivalent in
electronic form.
Step Two: Is The Expense Deductible?
Next, you must prove that an expense is actually tax
deductible. For cannabis businesses, this is challenging because of the I.R.C.
§280E limitation. Recall that under I.R.C. §280E, taxpayers cannot deduct any
amount for a trade or business where the trade
or business consists of trafficking in controlled substances which
are prohibited by Federal law. As previously mentioned, 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 cannabis dispensary, for instance, this
includes the cost of cannabis itself and transportation used in its acquisition.
To an extent, greater costs of doing business can be legitimately
included in COGS that will result in lower taxable income. You can be sure
the IRS agents performing audits will be looking closely at what is included in
COGS. Working with a cannabis tax attorney can ensure that you
receive the proper treatment of COGS versus ordinary and necessary expenses
resulting in the lowest possible income tax liability.
In addition to IRS audits, state cannabis audits are also
complex, thorough, and generally include all taxes specific and
nonspecific to the cannabis industry. Potentially at risk is the cannabis
license that enables the business to operate. State audits will focus
on records regarding sales and use tax, excise taxes, and
seed-to-sale tracking records.
If your cannabis IRS tax audit is not resolved,
the results may be challenged and litigated in the U.S. Tax Court or Federal
District Court. The U.S. Tax Court has jurisdiction to hear disputes over
federal income taxes before final assessment and collections, while
the Federal District Court generally requires taxpayers to first pay the
liability before seeking repayment through a refund request.
Tips
for Cannabis Tax Return Preparation
Here are some tips for cannabis businesses to follow in the
preparation of their 2019 tax returns.
Ultimately, it is the tax risk with IRS that could put any
cannabis business “out of business,” so you need to protect
yourself and your investment. Level the playing field and gain the upper hand
by discussing your unique situation with a cannabis-exclusive human resource
management group, a cannabis tax attorney, etc. Enlisting the help of a
fellow industry professional can help you prepare for any issues you may
encounter, cannabis-specific or otherwise. Seasoned pros can provide tax
solutions and strategies and protect you and your business while
maximizing net profits.
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Jul 23, 2020
Potential New FFCRA Rules from the Department of Labor
The guidelines surrounding employee leave due to COVID-19 are still evolving - stay on top of it all!
Jul 10, 2020
Q&A: COVID-19 Employer Guidelines
Managing employees is different than ever before - what should you be prepared for?
Jun 26, 2020
Employer on the GO Tutorial: Payroll Journal Access & Summary
A walkthrough detailing the contents of your payroll journal in Employer on the GO!
Jun 25, 2020
Employer on the GO Tutorial: Approve Payroll & Notify Provider
A walkthrough showing how to finalize your payroll and inform your provider with Employer on the GO!
Jun 24, 2020
Employer on the GO Tutorial: Preview & Process Payroll
A walkthrough showing how to preview your payroll before processing using Employer on the GO!
May 26, 2020
Employer on the GO Tutorial: Enter Payroll Hours using the Enhanced Pay Grid
A walkthrough showing how to enter payroll hours using the Enhanced Pay Grid from Employer on the GO!
May 19, 2020
Employer on the GO Tutorial: Navigate Enter Payroll Setup Menu
A walkthrough showing how to edit and understand the Enter Payroll Setup menu with Employer on the GO!
May 07, 2020
Should You Rethink Paid Leave?
Don't demonize paid time off - celebrate it!
Apr 28, 2020
Employer on the GO Tutorial: Access and Manipulate Payroll Detail Reports
A walkthrough to access and customize your payroll detail reports as an Employer on the Go user.
Apr 27, 2020
IRS Unveils 'Get My Payment' Feature
Curious about your eligibility for COVID-19 stimulus payments? Check out this new tool from the IRS!
Apr 24, 2020
Employer on the GO Tutorial: Payroll Document Access and Details
A walkthrough to access and understand your payroll documents package as an Employer on the Go user.
Apr 22, 2020
9 Advantages Of Automated Time Tracking
Take advantage of automated time tracking to optimize your workforce.
Apr 15, 2020
The Importance of Time-Off Management
Paid time off can be a great tool to improve employee morale and productivity.
Apr 13, 2020
Employer on the Go Tutorial: Quarterly Report Access/CARES Act Report
A walkthrough to access quarterly reports packages as an Employer on the Go user.
Apr 09, 2020
TimeWorksPlus Has Geofencing!
If you need to know whether or not your employees are working in the correct location, you need Geofencing.
Apr 07, 2020
Scam Warning: Fraudsters Using New Tactics to Steal Personal Data During COVID-19 Pandemic
Unfortunately, even in times of crisis, there are those who seek to benefit at the expense of others.
Feb 23, 2020
3 of 4 Business are Underinsured – Is Yours Protected?
Insurance often feels like an unnecessary cost - until you need it.
Dec 31, 2019
Six Payroll Problems To Keep In Mind
Getting a grip on your payroll can ease the burden on cash flow and help your company remain afloat.
Dec 30, 2019
Solutions To 7 Frustrating Employee Scheduling Problems
Employee scheduling doesn’t have to be a dreaded chore. TimeSimplicity is your solution.
More News & Press can be found in our Archive.
Panacea Payroll
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