Pubdate: Sun, 10 May 2015
Source: Seattle Times (WA)
Copyright: 2015 The Seattle Times Company
Author: Jack Healy, The New York Times


Federal Deductions Barred

Legal Enterprises Hurt by an Old Law Aimed at Preventing Drug Dealers 
 From Claiming Tax Write-Offs

DENVER - Money was pouring into Bruce Nassau's five Colorado 
marijuana shops when his accountant called with the bad news: The 
2014 tax season was approaching, and Nassau could not rely on the 
galaxy of deductions that other businesses use to reduce their tax 
bills. He was going to owe the Internal Revenue Service a small fortune.

"I had to write a check for $275,000," Nassau said. "Unbelievable."

The country's rapidly growing marijuana industry has a tax problem. 
Even as more states embrace legal marijuana, shops say they are being 
forced to pay crippling federal income taxes because of a decades-old 
law aimed at preventing drug dealers from claiming their smuggling 
costs and couriers as business expenses on their tax returns.

Congress passed that law in 1982 after a cocaine and methamphetamine 
dealer in Minneapolis who had been jailed on drug charges went to tax 
court to argue that the money he spent on travel, phone calls, 
packaging and even a small scale should be considered tax write-offs. 
The provision, still enforced by the IRS, bans all tax credits and 
deductions from "the illegal trafficking in drugs."

Marijuana-business owners say it prevents them from deducting their 
rent, employee salaries or utility bills, forcing them to pay taxes 
on a far larger amount of income than nonmarijuana businesses with 
the same earnings and costs.

They also say the taxes, which apply to medical and recreational 
sellers alike, are stunting their hiring, or even threatening to 
drive them out of business.

The issue reveals a growing chasm between the 23 states, plus the 
District of Columbia, that allow medical or recreational marijuana 
and the federal bureaucracy, which includes national forests in 
Colorado where possession is a federal crime, federally regulated 
banks that turn away marijuana businesses and the halls of the IRS.

While President Obama and top federal officials have allowed states 
to pursue legalization, marijuana advocates say the dissonance 
between increasingly permissive state laws and federal prohibitions 
is creating a morass of complications and uncertainty.

The tax rule, an obscure provision referred to as 280E, catches many 
marijuana entrepreneurs by surprise, often in the form of an audit 
notice from the IRS. Some marijuana businesses in Colorado, 
California and other marijuana-friendly states have challenged the 
IRS in tax court.

This year, Allgreens, a marijuana shop in Colorado, successfully 
challenged an IRS policy that imposed about $30,000 in penalties for 
paying its payroll taxes in cash - common in an industry in which 
businesses rely on armed guards and cashstuffed safes because they 
cannot get bank accounts.

"We're talking about legal businesses, licensed businesses," said 
Rachel Gillette, the executive director of Colorado's chapter of the 
National Organization for the Reform of Marijuana Laws and the lawyer 
who represented Allgreens. "There's no reason that they should be 
taxed out of existence by the federal government."

A normal business, for example, might pay a 30 percent federal rate 
on its taxable income, which would represent its gross income minus 
deductible business expenses.

A marijuana business, on the other hand, might pay the same federal 
rate on all of its gross income because it cannot take these 
deductions. The difference can raise the rate on a marijuana business 
to 70 percent or more of its profits.

Gillette said she represented a dispensary owner who had taken in 
$1.7 million last year before expenses and had received a tax bill of 
$866,000. They are negotiating with tax officials, she said.

Colorado and a handful of other states have changed their tax laws to 
let legal marijuana businesses take deductions on their state returns.

And this month, Sen. Ron Wyden and Rep. Earl Blumenauer, both 
Democrats of Oregon, which legalized recreational marijuana last 
year, introduced legislation that would allow marijuana businesses 
that are following their states' legalization laws to take regular 
deductions on their federal returns.

"It's affecting thousands of businesses, and it's doubling, tripling, 
quadrupling their taxes," Blumenauer said. "It just cripples them."

The current system, he said, encourages marijuana sellers to file tax 
returns that do not follow the law and simply hope the IRS does not spot them.

But Kevin Sabet, president of Smart Approaches to Marijuana, a 
leading critic of legalization, said it made no sense to give "tax 
breaks to companies openly violating federal law by selling marijuana 
gummies and lollipops."

Accountants and tax lawyers, who are inundated with calls from 
marijuana shops these days, say the rules are murky and make little 
sense. If marijuana retailers dedicate parts of their stores to yoga, 
drug education or selling nondrug merchandise, can they deduct part 
of their rent? If employees split their time between cleaning the 
store and selling marijuana, are their salaries partly deductible?

"There's no clear direction," said Scott Levy, an accountant in 
Arizona who said that marijuana sellers made up about one-fifth of 
his business. "You find all these weird little strategies that people 
use to try to parse the definitions."

Dispensary owners who once feared raids by drug-enforcement agents 
say they take pride in paying taxes like any other business.

They say it brings them out of the shadows and distinguishes them 
from the black market. Marijuana advocates trumpet tax-collection 
numbers to show that the industry is pouring millions of dollars into 
state budgets.

In Seattle, John Davis earned $53,369 in profits last year from his 
medical-marijuana dispensary, the Northwest Patient Resource Center. 
Because he complied with all of the tax rules prohibiting deductions, 
he said, he ended up owing $46,340 in taxes.

"It hurt, and it hurt bad," he said. "Everyone thinks you're just 
rolling in dough. That may be the case if you're not being compliant. 
You're not making money. You're holding on, hoping for a better day."
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MAP posted-by: Jay Bergstrom